R v Munro
[2000] WASCA 285
•7 SEPTEMBER 2000
R -v- MUNRO [2000] WASCA 285
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 285 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:113/2000 | 7 SEPTEMBER 2000 | |
| Coram: | PIDGEON J IPP J WHEELER J | 7/09/00 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| PDF Version |
| Parties: | THE QUEEN DEAN MARSHALL MUNRO |
Catchwords: | Criminal law Crown appeal against sentence Possession of 27.8 grams of heroin with intent to sell or supply Intensive supervision order imposed Whether sentence was manifestly inadequate Whether sentencing Judge placed too great emphasis on mitigating circumstances Personal circumstances are less relevant in heroin cases Non-custodial sentence only imposed in exceptional circumstances |
Legislation: | Misuse of Drugs Act 1981, s 6(1)(a) Sentencing Act 1995, s 32 Road Traffic Act 1994 The Criminal Code |
Case References: | Donatelli v R, unreported; CCA SCt of WA; Library 980505; 3 September 1998 Quach v R [1999] WASCA 210 R v Leucus (1995) 78 A Crim R 40 R v Ruich [2000] WASCA 84 Taouk (1992) 65 A Crim R 387 La Rosa v R, unreported; CCA SCt of WA; Library No 960628; 31 October 1996 R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998 R v Grein [1989] WAR 178 S v The Queen [2000] WASCA 34 Tsagaris v R, unreported; CCA SCt of WA; Library No 980721; 14 December 1998 Veen v The Queen (No 1) (1979) 143 CLR 458 Veen v The Queen (No 2) (1998) 164 CLR 465 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- MUNRO [2000] WASCA 285 CORAM : PIDGEON J
- IPP J
WHEELER J
- Appellant
AND
DEAN MARSHALL MUNRO
Respondent
Catchwords:
Criminal law - Crown appeal against sentence - Possession of 27.8 grams of heroin with intent to sell or supply - Intensive supervision order imposed - Whether sentence was manifestly inadequate - Whether sentencing Judge placed too great emphasis on mitigating circumstances - Personal circumstances are less relevant in heroin cases - Non-custodial sentence only imposed in exceptional circumstances
Legislation:
Misuse of Drugs Act1981, s 6(1)(a)
Sentencing Act 1995, s 32
Road Traffic Act 1994
The Criminal Code
(Page 2)
Result:
Appeal allowed
Representation:
Counsel:
Appellant : Mr R E Cock QC
Respondent : Mr P J Hogan
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Legal Aid Commission
Case(s) referred to in judgment(s):
Donatelli v R, unreported; CCA SCt of WA; Library 980505; 3 September 1998
Quach v R [1999] WASCA 210
R v Leucus (1995) 78 A Crim R 40
R v Ruich [2000] WASCA 84
Taouk (1992) 65 A Crim R 387
Case(s) also cited:
La Rosa v R, unreported; CCA SCt of WA; Library No 960628; 31 October 1996
R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998
R v Grein [1989] WAR 178
S v The Queen [2000] WASCA 34
Tsagaris v R, unreported; CCA SCt of WA; Library No 980721; 14 December 1998
Veen v The Queen (No 1) (1979) 143 CLR 458
Veen v The Queen (No 2) (1998) 164 CLR 465
(Page 3)
1 IPP J: This is a Crown appeal against sentence. The respondent was convicted on his own plea of guilty under the fast-track system on one count of possession of heroin with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981. When sentencing the respondent on this offence, the learned sentencing Judge was required, pursuant to s 32 of the Sentencing Act 1995, to sentence the respondent in respect of 19 charges of fraud, contrary to s 409(1) of the Criminal Code and one charge of driving without an appropriate valid driver's licence, contrary to s 49(1)(a) of the Road Traffic Act 1974. The respondent pleaded guilty to those 20 additional charges.
2 The learned sentencing Judge imposed a two year intensive supervision order upon the respondent as a global sentence in respect of all of these charges.
3 The appellant contends that the learned sentencing Judge erred in imposing a sentence "which was manifestly inadequate in all the circumstances". In particular, the appellant contends that his Honour gave undue weight to personal matters relating to the respondent and insufficient weight to the seriousness of the offence.
4 In considering the merits of this appeal, I bear in mind, as Murray J noted in R v Leucus (1995) 78 A Crim R 40 (at 51):
"[T]he essential purpose of a Crown appeal against sentence ought to be to expose serious error of principle in the sentencing Court, to correct that, and by the reinforcement of a proper statement of principle to aid the consistency and certainty of the sentencing process and to avoid undue disparity. Upon that basis a Crown appeal ought to be a relative rarity, and it should only be in a clear case that the appellate court is persuaded to intervene with the sentencing disposition of the Judge at first instance."
5 The offence of being in possession of heroin with intent to sell or supply was committed by the respondent on 10 November 1999. At that time he was 23 years of age (although the antecedent report states his date of birth as 1973). An accomplice of the respondent had arranged to meet another person at the Windsor Hotel carpark in South Perth. The accomplice had agreed to supply an ounce of heroin to that other person in exchange for $11,000. In fact, the other person was a police officer working under cover.
(Page 4)
6 The respondent and his accomplice travelled by motor vehicle to South Perth, taking the heroin with them. They arrived at a carpark, being the intended meeting place. Detectives were at the scene and the respondent ran off. He threw a small plastic package that he had been carrying on to the ground. He was arrested and the package was seized. It was found to contain 27.8 grams of heroin with a purity of 52 per cent.
7 The 19 fraud charges involved hand tools owned by a family friend. The respondent and his brother were living in the house of this man. The respondent took those items from his benefactor and pawned them by fraudulent means. He thereby received some $1,400 in aggregate. The respondent was a heroin user and it was by means of these fraudulently obtained funds that he was able to purchase the heroin he was using.
8 It was submitted at the trial that the respondent was recruited as "the delivery boy" in regard to the transaction which led to his arrest. He was said to have been promised only $500 for his involvement and this, according to his counsel, he was to use in financing his addiction.
9 As the pre-sentence report tendered to the learned sentencing Judge indicated, substance abuse lay at the core of the respondent's offending. Over a period of some two years prior to the offence, the respondent had experienced a considerable amount of tragedy in his life. His brother died from leukemia and his mother from melanoma. His parents had divorced when he was four years old and he did not know his father. He was very close to his deceased brother and mother and it was said that these occurrences led to his heroin addiction. In fact, he commenced taking heroin when he was about 20 years old and his use of heroin increased until he was imbibing quantities of a value of about $250 per day.
10 The respondent had few previous convictions and none relevant to these offences. In further mitigation it was pointed out to the learned sentencing Judge that on 11 March 2000, some five months after his arrest, the respondent had begun a naltrexone rapid detoxification program and two weeks later he was totally opiate free. The pre-sentence report concluded that the respondent had made "a substantial effort since the time of the offence to address the reasons underlying his offending behaviour". Furthermore, according to the pre-sentence report, the respondent "was not entrenched in an offending lifestyle and, as such, should be amenable to intervention". The author of the report was of the opinion that the respondent would benefit considerably from the close supervision that could be provided to him within the structure of an intensive supervision order.
(Page 5)
11 The learned sentencing Judge was heavily influenced by this pre-sentence report. He paid particular regard to the personal tragedies suffered by the respondent and the attempts he made subsequent to the offence to rid himself of his heroin addiction. Against this, the learned Judge weighed the seriousness of the offence. As his Honour pointed out, the offence involved a considerable amount of heroin, nearly one ounce. The learned Judge concluded:
"It is necessary to have regard to what is in the best interests of the community, and clearly, what is in the best interests of the community is to get you back on track, to assist you in getting to grips with your drug problem and hopefully to get you to a point where you can once more be a useful and contributing member of society."
12 For that reason and, as his Honour remarked "not without some degree of hesitation" he imposed the intensive supervision order.
13 I turn firstly, to the Crown's complaint that the learned Judge placed too much weight on the respondent's personal circumstances.
14 This Court has stated several times that it is ordinarily futile to argue that personal circumstances and antecedents have significant mitigatory force where an offender consciously and deliberately participates in the heroin trade. It is necessary only to refer to Quach v R [1999] WASCA 210 and R v Ruich [2000] WASCA 84.
15 Underlying this approach is the untold harm caused by the drug to the community and particularly to those who are not able to take appropriate care for themselves. In this sense offences involving the distribution of heroin have the general capacity of causing greater suffering than other offences indirectly attributable to the drug but which do not involve its dissemination. This explains why, in cases of heroin supply, the personal circumstances of the offender is of less relevance than in other cases and why this Court has expressed the view that, in cases involving a relatively large amount of heroin, a non-custodial disposition is warranted only in exceptional circumstances. See in this regard Donatelli v R, unreported; CCA SCt of WA; Library 980505; 3 September 1998.
16 I do not think, with respect, that his Honour applied the principles so expressed. The observation that "what is in the best interests of the community is to get you back on track to assist you in getting to grips
(Page 6)
- with your drug problem", is inconsistent with the need for general deterrence that lies at the heart of the approach to which I have referred.
17 Counsel for the respondent relied in effect on only one matter which he submitted justified a finding of exceptional circumstances. Counsel submitted that the respondent was "entrapped" and that was substantially mitigatory of the criminal culpability involved.
18 The relevant principle in this regard is set out in Taouk(1992) 65 A Crim R 387, a decision of the Court of Criminal Appeal of New South Wales. The decision of the court was delivered by Badgery-Parker J, who said (at 404):
"[W]hen it comes to sentence, the question is not whether the accused can show that but for the involvement, encouragement or incitement by police he would not have committed the crime, but rather, whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have done so, and whether in all the circumstances of the case the involvement of the police in the commission of the crime were such as diminished his culpability."
19 In this case the respondent had no dealings whatever with police officers. If there were dealings, they were between the accomplice and the undercover officer. There is nothing to suggest that but for the police conduct the respondent would not have committed a crime of this kind. He was at the time one step removed from any involvement with the police and I see nothing in all the circumstances of the case which diminishes the criminal culpability of the respondent.
20 In all of the circumstances I consider that this is indeed a clear case of error on the part of the learned sentencing Judge. The error is as I have identified it, namely the omission to follow the principles that are to be applied in sentencing where the offence concerns sale or supply of heroin in quantities that can be regarded as serious and involving a drug with a relatively high degree of purity. It is particularly important in offences of this kind, which may be said to be relatively prevalent, that there be consistency in sentencing and the sentence which was imposed does not fall into that category.
21 I would therefore uphold the appeal and set aside the sentence imposed by the learned sentencing Judge. I would impose a sentence of 3 years' imprisonment in respect of the charge of possession of heroin
(Page 7)
- with intent to sell or supply. With regard to the other charges I would impose a sentence of 1 month's imprisonment for each, each being concurrent with all the others and with the sentence of 3 years' imprisonment, making an aggregate term of imprisonment for all the offences of 3 years. The order made by the learned sentencing Judge in regard to the respondent's driver's licence remains unaffected. I would grant eligibility for parole.
22 PIDGEON J: I agree with the reasons of Ipp J. The respondent showed that he was a person who was willing and in fact, as he saw it for further distribution in the community, was prepared to sell a substantial quantity of heroin for $11,000 which he said he was passing onto someone else; but he was a person taking an active part to distribute that amount of heroin in that way.
23 As it transpired, it was sold to a police officer, but it did demonstrate what the respondent was doing. The interests of the community call for a deterrent sentence for conduct of that type and I, too, agree that his Honour's remarks did demonstrate error. His Honour said: "It is necessary to have regard to what is in the best interests of the community - "and, of course, that is right. Then his Honour said: "Clearly what is in the best interests of the community is to get you back on track."
24 His Honour was in error in seeing that as displacing the need for deterrence. I also agree with the reasons of Ipp J that no question of entrapment arises in this case and his Honour saw it that way. He did not refer to entrapment and for those reasons I concur with the sentence proposed.
25 WHEELER J: I agree with the reasons of his Honour Ipp J and with those of the learned presiding Judge, and for those reasons I, too, would allow the appeal and would impose the sentence proposed by Ipp J.
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