Rose v The Queen - [2000] WASCA 238

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: ROSE -v- THE QUEEN [2000] WASCA 238

CORAM: IPP J
WALLWORK J
MILLER J

HEARD: 16 AUGUST 2000

DELIVERED : 16 AUGUST 2000

FILE NO/S: CCA 116 of 2000

BETWEEN: EUGENE ROSE
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentence appeal - Applicant pleaded guilty to one count of burglary and one count of supplying heroin - Sentences of 18 months' and 2 years' imprisonment imposed, to be served cumulatively - Whether sentence for supplying heroin was manifestly excessive - Whether totality principle correctly applied - Turns on own facts

Legislation:

Sentencing Act, s 32

Result:

Application dismissed

Representation:

Counsel:

Applicant: Mr D McKenna
Respondent: Mr R E Cock QC & Ms J A Girdham

Solicitors:

Applicant: Director of Legal Aid
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Bryer v The Queen, unreported; CCA SCt of WA; Library No 5678; 19 December 1984
Donatelli v R, unreported; SCt of WA; Library No 980505; 3 September 1988
Jarvis v R (1993) 20 WAR 201
Knezevich v R, unreported; CCA SCt of WA; Library No 7661; 18 May 1989
Korculanic v R, unreported; CCA SCt of WA; Library No 980437; 16 July 1998
Mill v R (1988) 166 CLR 59
Miller (1989) 44 A Crim R 185
Nguyen v R; Tran v The Queen [1999] WASCA 54
Pearce v R (1998) 194 CLR 610
Piesse v The Queen, unreported; CCA SCt of WA; Library No 7606; 14 April 1989
R v Akers; R v Rodan; R v McMillan, unreported; CCA SCt of WA; Library No 920080; 11 February 1992
R v Grein [1989] WAR 178
R v Ruich [2000] WASCA 84
R v Tait (1979) 46 FLR 386
Simion v R, unreported; CCA SCt of WA; Library No 970738; 23 December 1997
Tadic v The Queen (1991) 56 A Crim R 332
Troy v R, unreported; CCA SCt of WA; Library No 980068; 13 February 1998
Wallace v R (1993) 63 A Crim R 362

IPP J: This is an application for leave to appeal against sentence. The applicant was convicted on his own pleas of guilty to one count of burglary and one count of supplying heroin. The learned sentencing Judge was also required to sentence the applicant under s 32 of the Sentencing Act on one count of possessing heroin, one count of receiving and one count of fraud. The applicant entered pleas of guilty to each of these offences.
The learned sentencing Judge sentenced the applicant to 18 months' imprisonment on the count of burglary, 2 years' imprisonment in respect of the count of supplying heroin, 1 years' imprisonment on the count of possession of heroin, 3 months' imprisonment on the count of receiving and 6 months' imprisonment on the count of fraud. His Honour ordered that the sentences of 18 months' imprisonment for the burglary offence and 2 years' imprisonment in respect of the offence of supplying heroin be served cumulatively and the sentences on the remaining three counts be served concurrently with the sentence of 18 months' imprisonment on the burglary count. In effect therefore the aggregate term of imprisonment imposed is 3‑1/2 years.
The applicant advances two grounds of appeal. Firstly, he contends that the sentence for the offence of supplying heroin was manifestly excessive. Secondly, he contends that the learned sentencing Judge erred in making the sentence for the offence of supplying heroin cumulative on the offence of burglary. It is argued that the total sentence imposed was disproportionate to the totality of the criminal behaviour involved.
The burglary offence was committed in the following circumstances. On 29 January 2000 the applicant parked a motor vehicle outside a house in Leederville. He went to the front door and knocked loudly. When he established that no one was home, he drove his vehicle into the driveway of the premises. He forced open a rear window and security grille and gained entry. Once inside he removed three electric synthesisers, an electric drum kit and 105 compact discs. To enable him to leave the premises he kicked open the front door which was deadlocked. Equipment of some considerable value was stolen. The police recovered some of the stolen goods and an order for restitution of $3,300 was made in respect of outstanding items which were not recovered.
As regards the offence of supplying heroin, on the same day but later in the afternoon, the offender supplied approximately 0.03 grams of heroin to an unknown male person on a street corner. By way of payment the male person gave the applicant a mobile phone, a clock, a compact disc player and a spray gun. Later that day the applicant sold all the items to a pawnshop.
With regard to the offence of possessing heroin, on 1 February 2000 the applicant was found in possession of 0.1 grams of heroin. The offence of receiving involved a stolen mountain bicycle. The offence of fraud involved the false representation to a pawnshop by the applicant that he was the lawful owner of the bicycle. In consequence the pawnbroker entered into a loan contract with the applicant and lent him $80.
The applicant was 23 years old at the time the offences were committed. He has long been a heroin addict. He left school at age 15 and left home at age 16. He has had personal difficulties with his de facto spouse and baby son. This resulted in him suffering from depression.
A further factor to be taken into account is that on 29 January 2000 when the burglary offence was committed, the applicant took 10 Temazepam tablets which are said to have affected his judgment to a degree.
The applicant has some history of offending. The offences committed by him include two charges of burglary and one of stealing.
Mitigatory circumstances were that the applicant had no previous convictions for the supply of drugs, the amount of heroin supplied was relatively small and the applicant pleaded guilty on the fast‑track system. He was a relatively young man at the time of the offence.
The applicant was a heroin user himself at the time of the offence but there was nothing in the evidentiary material before the learned trial Judge to the effect that he was seeking money to feed his own habit. On the facts before his Honour the applicant was simply trading in heroin for profit.
An adverse pre‑sentence report was provided. The applicant had failed to make himself available to community based services despite various requests for him to do so. The author of the report examined the Ministry of Justice file and police records relating to the applicant and referred to past occasions when the applicant disregarded the Court's instructions and committed various breaches of community based orders.
According to the author, using the Ministry of Justice assessment tool, the applicant was at a high risk of reoffending. The applicant was not considered a suitable candidate to be placed on a community based order.
Additionally, the learned sentencing Judge observed that in the court diversion service report provided to the court it was noted that the applicant's performance during the remand period was unsatisfactory.
In sentencing the applicant the learned Judge referred to a number of matters. He noted that the applicant was entitled to a discount because he pleaded guilty on the fast‑track system. He took express account of the applicant's youthful age. In assessing the seriousness of the offence of burglary he noted that equipment of significant value had been stolen.
In regard to the offence of supplying heroin, he referred to the gravity of the offence generally and in particular to the seriousness of selling heroin on the street. It is plain from his Honour's remarks that he gave careful consideration to the appropriate reduction from the periods of imprisonment that should follow by reason of the fast‑track plea of guilty and the applicant's age.
He said that the offence of burglary would usually warrant a sentence of at least 2 years' imprisonment but because of the mitigatory circumstances he would reduce that to 18 months' imprisonment. As regards the count of supplying heroin, he said that normally that would warrant a sentence in the range of 3 to 4 years. He reduced that to a term of 2 years' imprisonment. Applying the totality principle he made the sentences under the s 32 notice counts concurrent.
In support of the argument on which the first ground of appeal rests, counsel drew attention to a number of cases in which various sentences have been imposed for offences involving the supply of heroin. He did this in support of a proposition that his Honour committed an error of principle in saying:
"Normally, for the amount involved, it would warrant a sentence in the range of 3 to 4 years."
Each case has to be determined by reference to its own facts and, in my opinion, nothing in the cases to which reference was made indicates that the sentence of 2 years' imprisonment was outside the appropriate range. One has to bear in mind that the appellant was simply a trader in heroin on a street corner.

It is true that the amount of heroin involved was small, but in the context of the criminality involved in dealing with this drug for commercial gain, that is not of persuasive significance.
The courts have for some time now regarded the offence of supplying heroin in a particularly serious light. The harm that is caused to society generally by this drug is well known. The general approach adopted by the learned Judge to the sentencing exercise required of him in regard to this offence was, in my view, unexceptionable. It would have been open to his Honour to have imposed a lesser sentence, but that is not presently to the point. I am not persuaded that his Honour erred as contended for under the first ground of appeal.
The second ground of appeal asserts that the sentence for the heroin offence should have been made concurrent with the sentence for the burglary offence. The principle of totality is called in aid to support this argument. In my view, however, that argument cannot be sustained. The offences were entirely separate, committed at different places at different times albeit on the same day. There is nothing in the papers to support a submission made by counsel for the applicant that the offences were interrelated.
The offence of burglary was committed at domestic premises involving, as I have said, a significant amount and has to be regarded as serious, warranting on its own a significant term of imprisonment. I consider that his Honour was entirely justified in ordering that the sentences for these two offences be served cumulatively.
In the circumstances, I would dismiss the application.
WALLWORK J: I agree with the reasons for judgment of Ipp J and to the order proposed by his Honour.
MILLER J: For the reasons given by Ipp J, I agree that the application should be dismissed.