RIF v The State of Western Australia
[2013] WASCA 88
•5 APRIL 2013
RIF -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 88
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 88 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:66/2012 | 22 NOVEMBER 2012 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 5/04/13 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted on ground 1 Appeal allowed Sentencing decision of the sentencing judge set aside Appellant resentenced | ||
| D | |||
| PDF Version |
| Parties: | RIF THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Five counts of drug dealing or attempted drug dealing Pleas of guilty Cooperation with the authorities Inadequate information placed before the sentencing judge in relation to the cooperation Miscarriage of justice at the sentencing hearing |
Legislation: | Misuse of Drugs Act 1981 (WA), s 6(1), s 33(1), s 34 Sentencing Act 1995 (WA), s 9AA |
Case References: | Birch v The State of Western Australia [2011] WASCA 101 MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149 Reid v The State of Western Australia [2012] WASCA 23; (2012) 210 A Crim R 587 The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RIF -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 88 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Appeal against sentence - Five counts of drug dealing or attempted drug dealing - Pleas of guilty - Cooperation with the authorities - Inadequate information placed before the sentencing judge in relation to the cooperation - Miscarriage of justice at the sentencing hearing
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1), s 33(1), s 34
Sentencing Act 1995 (WA), s 9AA
(Page 2)
Result:
Leave to appeal granted on ground 1
Appeal allowed
Sentencing decision of the sentencing judge set aside
Appellant resentenced
Category: D
Representation:
Counsel:
Appellant : Mr S Vandongen SC
Respondent : Mr J A Scholz
Solicitors:
Appellant : Jeremy Noble
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Birch v The State of Western Australia [2011] WASCA 101
MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149
Reid v The State of Western Australia [2012] WASCA 23; (2012) 210 A Crim R 587
The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119
(Page 3)
1 McLURE P: I agree with Buss JA.
2 BUSS JA: The appellant appeals to this court against sentence.
3 He was convicted, on his pleas of guilty in the District Court before Birmingham DCJ, on five counts in an indictment. Each count alleged in essence an offence of drug dealing or attempted drug dealing, contrary to the Misuse of Drugs Act 1981 (WA) (the Act).
4 The appellant pleaded guilty in the Magistrates Court to all of the charges. He maintained the pleas of guilty when he appeared in the District Court for sentencing.
5 The sentences imposed and orders made by the sentencing judge, the facts and circumstances of the offending, the appellant's personal circumstances and antecedents, and some other relevant matters are recounted in the schedule to these reasons. The schedule will be the subject of a confidentiality order. It will not be published except to the appellant and the State and their respective legal representatives.
The grounds of appeal
6 The appellant relies on four grounds of appeal.
7 Ground 1 alleges that there was a miscarriage of justice at the sentencing hearing in that inadequate information was placed before the sentencing judge in relation to the appellant's past cooperation with the authorities.
8 Ground 2 alleges that his Honour erred in concluding that the very low purity of the drugs, the subject of the counts in the indictment, was not relevant in assessing the appellant's culpability.
9 Ground 3 alleges that his Honour erred in finding that the appellant was at 'the higher end in the dealing chain with access to those in the hierarchy able to supply large quantities at short notice'.
10 Ground 4 alleges that the total effective sentence infringed the first limb of the totality principle.
11 On 29 May 2012, Mazza JA granted leave to appeal on grounds 2, 3 and 4 and referred the application for leave to appeal on ground 1 to the hearing of the appeal.
(Page 4)
Ground 1: the appellant's cooperation with the authorities
12 After he was arrested and before he was sentenced, the appellant signed a written document in which he agreed to provide assistance to the police in relation to the drug dealing activities of others. The appellant provided substantial assistance to the police before he was sentenced. Particulars of the assistance are set out in the confidential schedule to these reasons.
Ground 1: applicable principles relating to cooperation with the authorities
13 The applicable principles, including the proper approach in determining the nature, extent and value of an offender's past and promised future cooperation with law enforcement agencies and the appropriate level of any discount on his or her sentence, were examined in MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149. It is unnecessary to reproduce that examination.
Ground 1: its merits
14 It is apparent from the sentencing judge's sentencing remarks that he did not discount any of the individual sentences or the total effective sentence on account of the appellant's cooperation with the police.
15 Before this court, counsel for the State conceded that:
(a) inadequate information had been placed before his Honour in relation to the appellant's cooperation;
(b) a different sentence should have been imposed on the appellant;
(c) a miscarriage of justice therefore occurred at the sentencing hearing; and
(d) this court should resentence the appellant.
16 In my opinion, the State's concession is properly made. Ground 1 has been made out. The miscarriage of justice at the sentencing hearing enlivens this court's discretion to intervene and resentence the appellant.
The result of the appeal and the resentencing of the appellant
17 I would grant leave to appeal on ground 1. The appeal should be allowed and the sentencing decision of the sentencing judge should be set aside. This court has the materials necessary to resentence the appellant. It is unnecessary to deal separately with any of grounds 2, 3 and 4.
(Page 5)
18 The maximum penalty for each of the offences of possessing a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act, and selling or supplying a prohibited drug to another, contrary to s 6(1)(c) of the Act, is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the Act.
19 Since the enactment of the Misuse of Drugs Amendment Act 2004 (WA), this maximum penalty has also applied to the offence of attempting to possess a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the Act. Previously, the maximum penalty for this offence had been 12 years 6 months' imprisonment or a fine of $50,000 or both.
20 The culpability of an offender (including an offender who has been convicted of an attempt as distinct from the completed offence, including an attempt to possess a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the Act), and the extent to which he or she should be punished, must be determined by reference to all the facts and circumstances of the particular offending and the offender. See Reid v The State of Western Australia [2012] WASCA 23; (2012) 210 A Crim R 587 [45] (Buss JA, McLure P agreeing).
21 The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
22 When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. The guidance afforded by comparable cases is flexible rather than rigid.
23 I have considered a number of prior cases of offending against s 6(1) of the Act which have at least some features comparable to the appellant's offending. See The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119; MXP; Birch v The State of
(Page 6)
- Western Australia [2011] WASCA 101; Reid; and the cases reviewed in those decisions.
24 In the present case, the appellant's offending was, no doubt, very serious. He sourced and supplied or intended to supply a very significant quantity of tablets, believing them to contain MDMA, but in fact containing methylamphetamine. It is true that the purity of the drugs, the subject of counts 2, 3 and 5, was very low and that the purity of the drugs the subject of the other counts is unknown. Where the purity of a prohibited drug is very low the substance is unlikely to produce the deleterious effects usually associated with prohibited drugs having a high level of purity. However, the essence of the appellant's criminality was reflected in his belief that the tablets were prohibited drugs and his willingness to deal in them, for profit, with that knowledge. He was running a drug dealing business. The scope of the business was beyond what was necessary to repay a drug debt he had incurred as a result of his own usage.
25 Although the appellant had access to the supply of significant quantities of drugs at short notice, it is not possible to assess the position he occupied in the 'dealing chain' because, as I have mentioned, the purity of the drugs, the subject of counts 2, 3 and 5, was very low and the purity of the drugs the subject of the other counts is unknown. It was not open to the sentencing judge to be satisfied beyond reasonable doubt that the appellant was 'at the higher end of the dealing chain'.
26 The principal mitigating factors were the appellant's cooperation with the police and his pleas of guilty. All of his cooperation was past cooperation as at the date on which his Honour imposed sentence.
27 In my opinion, the total criminality of all of the appellant's offending would be properly marked, and all relevant sentencing principles would be satisfied, by a total effective sentence of 6 years' imprisonment. This result should be achieved by imposing individual terms of immediate imprisonment, as follows:
(a) count 1: 2 years;
(b) count 2: 2 years;
(c) count 3: 2 years;
(d) count 4: 4 years; and
(Page 7)
- (e) count 5: 2 years,
and by ordering that the individual sentences for counts 1, 2, 3 and 5 be served concurrently with each other, but cumulatively upon the individual sentence for count 4. The new total effective sentence should be taken to have taken effect on 2 March 2012. The appellant should be eligible for parole.
28 Finally, I note the following:
(a) I have reduced the 'head sentence' (as defined in s 9AA(1) of the Sentencing Act 1995 (WA)) for each offence by 12% in order to recognise the benefits to the State, and to any witness to the offence, resulting from the plea of guilty; and
(b) I have further reduced the individual sentence I would otherwise have imposed for each offence, and I have reduced the total effective sentence I would otherwise have imposed, in order to recognise the appellant's past cooperation with the police.
29 MAZZA JA: I agree with Buss JA.
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