Ruich v The State of Western Australia
[2006] WASCA 241
•15 NOVEMBER 2006
RUICH -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 241
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 241 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:162/2005 | 15 JUNE 2006 | |
| Coram: | ROBERTS-SMITH JA McLURE JA BUSS JA | 15/11/06 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | TONY RUICH THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law and procedure Sentence Conspiracy to sell or supply heroin Supplying heroin Possess heroin with intent to sell or supply Aggregate sentence 7 years 4 months' imprisonment Cumulative sentence "One transaction rule" Whether manifestly excessive Judge failing to state in open court minimum period appellant would serve in custody Breach of s 34(2) Sentencing Act 1995 (WA) Effect of breach |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(4) Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(2) Sentencing Act 1995 (WA), s 34(2) Sentencing Legislation Amendment and Repeal Act 2003 (WA) |
Case References: | Brown (1982) 5 A Crim R 404 Chivers v The State of Western Australia [2005] WASCA 97 Colangelo v The State of Western Australia [2004] WASCA 294 Collard v The State of Western Australia [2004] WASCA 297 Dickens v The Queen (2004) 147 A Crim R 343 Director of Public Prosecutions v Doot [1973] AC 807 GHS v The State of Western Australia [2006] WASCA 42 Grimwood v The Queen [2002] WASCA 135 Marker v The Queen (2002) 135 A Crim R 55 Pearce v The Queen (1998) 194 CLR 610 R v Faithfull (2004) 142 A Crim R 554 R v Hoar (1981) 148 CLR 32 R v Legg, unreported; CCA SCt of WA; Library No 980305; 9 April 1998 R v Ruich [2000] WASCA 84 R v Scanlon (1987) 89 FLR 77 Ruane (1979) 1 A Crim R 284 Savvas v The Queen (1995) 183 CLR 1 Shepherd (1988) 37 A Crim R 303 The Attorney-General (SA) v Tichy (1982) 30 SASR 84 The State of Western Australia v Miller (2005) 30 WAR 38 Veen v The Queen (No 2) (1988) 164 CLR 465 Western Australia v Marchesi (2005) 30 WAR 359 "S" v The Queen [2000] WASCA 34 Jarvis v The Queen (1993) 20 WAR 201 Lowndes v The Queen (1999) 195 CLR 665 Mill v The Queen (1988) 166 CLR 59 Pop (2000) 116 A Crim R 298 Postiglione v The Queen (1997) 189 CLR 295 Quach v The Queen [1999] WASCA 210 R v Ireland (1970) 126 CLR 321 R v Kotzmann [1999] 2 VR 123 R v Yates [1985] VR 41 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RUICH -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 241 CORAM : ROBERTS-SMITH JA
- McLURE JA
BUSS JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MAZZA DCJ
File No : IND 1191 of 2004
(Page 2)
Catchwords:
Appeal - Criminal law and procedure - Sentence - Conspiracy to sell or supply heroin - Supplying heroin - Possess heroin with intent to sell or supply - Aggregate sentence 7 years 4 months' imprisonment - Cumulative sentence - "One transaction rule" - Whether manifestly excessive - Judge failing to state in open court minimum period appellant would serve in custody - Breach of s 34(2) Sentencing Act 1995 (WA) - Effect of breach
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(2)
Sentencing Act 1995 (WA), s 34(2)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr D Dempster
Solicitors:
Appellant : Andree Horrigan
Respondent : State Director of Public Prosecutions
(Page 3)
Case(s) referred to in judgment(s):
Brown (1982) 5 A Crim R 404
Chivers v The State of Western Australia [2005] WASCA 97
Colangelo v The State of Western Australia [2004] WASCA 294
Collard v The State of Western Australia [2004] WASCA 297
Dickens v The Queen (2004) 147 A Crim R 343
Director of Public Prosecutions v Doot [1973] AC 807
GHS v The State of Western Australia [2006] WASCA 42
Grimwood v The Queen [2002] WASCA 135
Marker v The Queen (2002) 135 A Crim R 55
Pearce v The Queen (1998) 194 CLR 610
R v Faithfull (2004) 142 A Crim R 554
R v Hoar (1981) 148 CLR 32
R v Legg, unreported; CCA SCt of WA; Library No 980305; 9 April 1998
R v Ruich [2000] WASCA 84
R v Scanlon (1987) 89 FLR 77
Ruane (1979) 1 A Crim R 284
Savvas v The Queen (1995) 183 CLR 1
Shepherd (1988) 37 A Crim R 303
The Attorney-General (SA) v Tichy (1982) 30 SASR 84
The State of Western Australia v Miller (2005) 30 WAR 38
Veen v The Queen (No 2) (1988) 164 CLR 465
Western Australia v Marchesi (2005) 30 WAR 359
Case(s) also cited:
Jarvis v The Queen (1993) 20 WAR 201
Lowndes v The Queen (1999) 195 CLR 665
Mill v The Queen (1988) 166 CLR 59
Pop (2000) 116 A Crim R 298
Postiglione v The Queen (1997) 189 CLR 295
Quach v The Queen [1999] WASCA 210
R v Ireland (1970) 126 CLR 321
R v Kotzmann [1999] 2 VR 123
R v Yates [1985] VR 41
"S" v The Queen [2000] WASCA 34
(Page 4)
1 ROBERTS-SMITH JA: This is an appeal against an aggregate sentence of 7 years 4 months' imprisonment.
2 On 3 June 2005, the appellant pleaded guilty in the District Court at Perth to three counts on an indictment, namely that:
(1) between 20 May 2003 and 22 July 2003 at Lansdale he and Patrick James Murray conspired together to sell or supply a prohibited drug, namely heroin to another contrary to s 6(1)(a) and s 33(2) of the Misuse of Drugs Act 1981 (WA) ("MDA");
(2) on 22 July 2003 at Lansdale he supplied a prohibited drug, namely heroin, to another contrary to s 6(1)(c) of theMDA;
(3) on the same day and at the same place as in count 2 at Lansdale he had in his possession a prohibited drug, namely heroin, with intent to sell or supply it to another contrary to s 6(1)(a) of the MDA.
3 The prosecution case in respect of count 1 was that between 21 May and 22 July 2003 the appellant and Murray conspired together to sell to others. The sentencing Judge found that the two of them were engaged in a business arrangement to sell heroin to others. The appellant obtained heroin at regular intervals with the intention of selling it to others, but being aware of the inherent risk of apprehension involved in selling heroin, employed the services of Murray to carry out the majority of transactions involved in the street dealing.
4 Specifically, prosecution counsel contended that Murray travelled to the appellant's address on a daily basis to collect the heroin for distribution. After sourcing the heroin, the appellant weighed and packaged the drug for sale at his home address prior to handing it to Murray. Murray then distributed the heroin to drug users who had placed orders by means of a mobile telephone, utilising the appellant's Ford Falcon sedan.
5 Murray often would return to the appellant's address throughout the day to obtain further deals after taking orders from drug users. The appellant and Murray conducted their drug dealing in the manner of a business, with operating hours and reference being made to the mobile phone as "the work phone" (AB 70). The appellant received the moneys derived from the sale of heroin and paid Murray a wage for his involvement.
6 The appellant accepted that he sold his co-offender portions of heroin that Murray was then going to on-sell to others. However, counsel for the
(Page 5)
- appellant emphasised (AB 79) that the appellant denied that he employed Murray or paid him a wage.
7 On this point the sentencing Judge noted that "[t]he fact seems to remain that the agreement was that Murray would sell or supply heroin to others and that that heroin emanated from Mr Ruich" (AB 80). In his sentencing remarks, his Honour observed (AB 112):
"I don't think there's much point in saying you were his employer and he was your employee or you were partners. It seems to me that you were both in it together, but I think it also has to be said that you were the prime mover. I don't think that Mr Murray went into this arrangement with his eyes shut. He clearly went into it willingly and in my opinion he went into it for profit, but we are not talking about Mr Murray's involvement, we are talking about your involvement."
8 The conspiracy was a continuing one over a period of time. His Honour concluded that considerable quantities of drugs were being sold to others who wished to buy the drugs. Telephone intercepts indicated that those people were regular users of heroin (AB 112).
9 As to the facts of counts 2 and 3 there was no dispute. The facts relating to count 2 are that on 22 July 2003 between 10.40 and 11.37 am the appellant gave his co-offender a package containing heroin. Murray drove away with the heroin and was intercepted by police at about 11.45 am. A small package containing the heroin was found in the dashboard of the vehicle. On analysis it weighed 2.02 grams and had a purity of 36 per cent. As to count 3, at 12 noon on the same day the police attended the appellant's residence at Landsdale and executed a search warrant. He was searched by police and in his rear pocket they located a cigarette box which contained two packages of heroin. Also in his possession were a total of $1815 in cash and the usual indicia of drug dealing including scales, foils, clip seal bags and at least one address book. The sentencing Judge also noted that there was indicia of personal drug use such as a spoon and Medi-swabs. The heroin that was in the cigarette box weighed in total 35.75 grams and had an average purity of 38 per cent.
10 Conspiracy to sell or supply heroin carries a maximum penalty of 20 years' imprisonment and/or a fine of $75,000, while both the offences of supplying heroin to another and possession of heroin with intent to sell
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- or supply it to another carry a maximum term of imprisonment of 25 years and/or a fine of $100,000.
11 On 1 July 2005, the appellant was sentenced to 2 years 8 months' imprisonment in respect of count 1; 2 years 8 months' imprisonment in respect of count 2; and 4 years 8 months' imprisonment in respect of count 3. His Honour ordered that the term of imprisonment in respect of count 2 be served concurrently with the term imposed on count 3, and the term imposed in respect of counts 2 and 3 be served cumulatively with the term imposed on count 1. The head sentence was therefore 7 years 4 months' imprisonment which his Honour backdated to commence on 31 August 2003. The appellant was made eligible for parole. During the sentencing proceedings on that day the sentencing Judge declared the appellant a drug trafficker.
12 On 5 September 2005, the appellant filed an application for leave to appeal against sentence. This was supported by an affidavit by the appellant's solicitor, Ms Andree Horrigan sworn on 2 September 2005, but filed together with the appeal notice on 5 September 2005. The purpose of this affidavit was to seek leave to lodge the notice of appeal out of time.
13 On 10 October 2005 a consent notice was filed signed by both parties allowing the appellant until 4 November 2005 to file and serve the appeal documents required under r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA). This order was so made by the Registrar on 12 October 2005. A further consent notice was filed on 4 November 2005 proposing that the appellant have until 18 November 2005 to serve their appeal documents. Again this order was made by the Registrar.
14 The prescribed papers were received from counsel for the appellant, Mr Simon Watters, on 11 November 2005, with a newly drafted "proposed" appeal notice. The original appeal notice accompanying those documents appears to be a notice prepared by the appellant himself and dated 13 July 2005. However, this appeal notice was never filed with the Court. The original appeal notice on file is that filed by the solicitor for the appellant, Ms Andree Horrigan, on 5 September 2005.
15 Leave to rely on the grounds proposed by Mr Watters and to make further amendments was granted on 15 June 2006. The grounds of appeal as they now stand read:
"1. The learned sentencing Judge's discretion miscarried when he failed to order the sentence concerning Ct 1 be
- served in part concurrently with the sentence imposed for Cts 2 & 3 such that the total sentence imposed was manifestly excessive.
- 2. In breach of the requirements contained within s34(2) of the Sentencing Act 1995 the learned sentencing Judge failed to state in open court the minimum period of time the Appellant would serve in custody.
3. If the Court concludes that each of Grounds 1 and 2 of the Appeal fail individually, the combination or aggregation of the defects identified in Grounds 1 and 2 above means there has been a substantial miscarriage of justice. The Appellant therefore was not sentenced in accordance with the law, nor was he sentenced fairly."
Ground 1: "One transaction"
16 The appellant's first ground of appeal largely deals with the establishment of the conspiracy (count 1) and its relationship to counts 2 and 3 on the indictment. A large part of the State case with respect to count 1 concerned telephone conversations between the conspirators which were intercepted and recorded by police. For sentencing, Mazza DCJ requested a copy of the telephone intercept material so as to clarify the facts of the conspiracy. This was provided together with further documentation from the State drawing attention to particular aspects of the telephone conversations recorded. The State alleged that it was a continuing conspiracy between the appellant and Murray which involved the appellant and Murray selling heroin to people who would either telephone him or Murray, and (AB 99):
"… that Mr Murray would then take the role of the front man, if you like, who would have the face to face dealings and the supplying with the respective customers and [the appellant] was the person who bought the bulk product, he cut it, made it up into its material and then had Mr Murray go out and supply and sell the drug".
17 The State relied specifically on the following conversations (extract):
"1. A series of 4 conversations on 21 May 2005 commencing at 9.40am.
- In the first call Ruich telephones Patrick Murray and asks him to buy little clear bags at the newsagents. The State allege[d] that these bags were used to package drugs for sale. At 11.06am Ruich receives a telephone call from 'Andrea'. Andrea arranges the amount of drugs she is to purchase from Ruich and confirms that she has spoken to the co-accused Murray (referred to during the call as 'Pat') and Murray is near to the pre-arranged pick up point.
One minute later at 11.07am Murray telephones Ruich and asks him whether he is willing to accept a T.V. from a guy who wants to 'buy a 50. It's, to say, a quarts for the T.V. and he will pay'. There is then a discussion between Ruich and Murray as to whether the T.V. has all the necessary wires and Ruich confirms that he will accept the T.V. The State allege[d] that Ruich was accepting the television in payment for drugs supplied on Ruich's behalf by Murray. Ruich then makes a reference to the previous telephone call with 'Andrea' and tells Murray 'the sheila's only got three forty'. Murray answers 'yeah, O.K. mate. No worries.'
On the same date at 11.48am Ruich receives a telephone call from another client by the name of 'Snapper'. Ruich tells him to ring a different telephone number and 'Pat will answer'. The State allege[d] this [was] a reference to the co-accused Murray. Ruich then confirms with the client that he is to 'catch up' with Pat and not with him.
- 2. At 1:19pm on 21 May 2003 Ruich telephones Murray and asks whether [sic] where he is. Murray replies that he's waiting for someone who hasn't showed up yet. Ruich then asks if the T.V. works and Murray replies 'yeah everything's going good mate. Yeah, you can start making up some small ones again and I'll be, after I see this guy, I'll only have two big ones left'. The State allege[d] that Murray [was] informing Ruich that he has sold out of certain packaged weights of heroin and will need to be supplied with some more.
3. On 24 May 2003 at 4:35pm Ruich telephones Murray and tells him that 4 people rang up and he says 'its up to you. If you don't want to do it, don't do it'. Murray replies 'Oh,
- I don't know; I'm over in Fremantle now.' Murray continues stating … 'I, well I just got rid, you know that stuff that you gave me, I got rid of that and I turned the phone off'.
- The State allege[d] that Ruich was giving Murray the option to supply heroin to some additional clients.
- 4. On 31 May 2005 at 4.49pm a male by the name of 'Toby' rings Ruich and requests a 'three firty'. Ruich replies that '…the other phone will be on in about 10 minutes' and then later in the conversation Ruich says 'ring like when you get to, um, near Malaga cause I'm not sure where he'll be' and Toby replies 'alright, sweet. No worries. What? Pat's number?' and Ruich answers 'yeah'.
The State allege[d] that Ruich was informing a client to ring Murray to organise the logistics of the exchange of drugs.
5. On 5 June 2003 at 12:08pm a client by the name of 'Pottsy' rings Ruich during the course of the telephone conversation Ruich gives Pottsy Murray's mobile phone number and suggests that he ring him in approximately half an hour.
On the same date at 3:11pm Ruich telephones Murray and informs him that a person by the name of 'Looch' is a suitable person to deal with. Murray informs Ruich that he has 'a fifty and a tonne left'. Ruich and Murray decide that if Murray comes over to Ruich's house he could grab what he wants for later. At 3:25pm on 5 June 2003 a male person rings Ruich to complain about the size of the deal he has been given. Ruich replies 'I made them up and you're the first one that's ever complained like'. Ruich and the male person make arrangements to meet at 6 o'clock to get another 'one off him'. Ruich says that that will be weighed in front of the client to make sure he's not getting the cut.
25 minutes later Ruich telephones Murray and when Murray states that he's going to see Ruich at about 7 o'clock, Ruich says 'someone wants to see ya…for, for a
- tonne'. Murray says to Ruich to tell them to ring him in 10 minutes.
- 6. On 9 June 2003 at 1:19pm Ruich telephones Murray to tell him that 'some bird Raegan's gonna ring you up, alright?' Ruich tells Murray to see her, 'alright? …she only wants a tonner'." (Emphasis in original)
18 The so-called "one transaction rule" or "continuing episode rule" is essentially that concurrent sentences should be imposed in respect of a number of offences which "arise from substantially the same act or same circumstances or a closely related series of occurrences": Brown (1982) 5 A Crim R 404 at 407. In The Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 93 the rule was said to apply in a case of "one multi-faceted course of criminal conduct" and in Pearce v The Queen (1998) 194 CLR 610, Kirby J said that a Judge may make sentences for multiple offences of which an accused is convicted concurrent if they are "considered to be manifestations of the one criminal enterprise, transaction or episode".
19 The underlying principle of the "rule" has been said to be that all the offences taken together constitute a single invasion of the same legally protected interests: D A Thomas, "Principles of Sentencing" (2nd ed), page 53. However, there are cases in which distinct and unrelated offences have been treated as if they were related for the purposes of concurrency because they were committed within a short period of time: see, eg, R v Scanlon (1987) 89 FLR 77.
20 In The State of Western Australia v Miller (2005) 30 WAR 38, Steytler P explained (at [17]):
"'The so-called 'rule' is not a rule at all. It is merely a guideline. In Ruane v The Queen (1979) 1 A Crim R 284 it was described as a 'good working rule'. Each case depends upon its own circumstances and it is for the sentencing judge to determine whether the application of the guideline would result in an appropriate measure of the total criminality involved in the conduct: R v Faithfull (2004) 142 A Crim R 554 at [28] per McLure J (with whom the other members of the court were in agreement); R v White [2002] WASCA 112; R v O'Rourke [1997] 1 VR 246 at 253 and R v O'Brien [1997] 2 VR 714 at 720-721. As was said by McHugh, Hayne and Callinan JJ in Pearce (at 623), the punishment to be exacted should reflect
(Page 11)
- what an offender has done and should not be affected by the way in which the boundaries of particular offences are drawn."
21 Having regard to the way the appeal was conducted, the first issue is whether charging both offences subjected the appellant to double jeopardy, and further whether sentences of imprisonment on both charges, ordered to be served cumulatively results in double punishment.
22 In this area there had been conflicting statements: see Pearce v The Queen (supra). At [34] McHugh, Hayne and Callinan JJ refer to R v Hoar (1981) 148 CLR 32, and quote Gibbs CJ, Mason, Aickin and Brennan JJ:
"'a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act'. By contrast, Humpreys J of the English Court of Criminal Appeal stated '[i]t is not the law that a person shall not be liable to be punished twice for the same act; it has never been so stated in any case, and the Interpretation Act [1889 (UK)] itself does not say so. What s 33 says is: "No person shall be liable to be punished twice for the same offence"'." (References omitted)
23 Their Honours went on to note that, inter alia, more recent legislation in Australia has sought to resolve this issue. There is such legislation in this State. Section 11 of the Sentencing Act 1995(WA) relevantly provides, in subs (1), that if the evidence necessary to establish the commission by a person of an offence is also the evidence necessary to establish the commission by that person of another such offence, they may be charged and convicted of each offence, but are not to be sentenced for more than one of the offences.
24 In Pearce, the majority concluded (at [40]), that:
"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the
(Page 12)
- accidents of legislative history, rather than according to their just deserts."
25 In Pearce there was a single act (the infliction of grievous bodily harm on the victim) which was an element of both offences of which the appellant had been convicted. That was not the situation here.
26 Nonetheless, the principle articulated by their Honours was raised in oral submissions on the hearing of the appeal, in a somewhat different way and it is expedient to consider that before turning to the "one transaction rule" (as Mr Watters described it) itself.
27 The first issue was whether or not the supply of the heroin to Murray (the subject of count 2) and the appellant's possession of heroin (the subject of count 3) were in substance, overt acts of the conspiracy, the subject of count 1. This had not been raised in this way before the sentencing Judge. Mr Watters submits now there was a factual overlap between the counts in that the two substantive offences were committed pursuant to the conspiracy and within the time frame of the conspiracy.
28 Before the sentencing Judge, counsel then appearing for the appellant had submitted that all the sentences should be concurrent, because "the reality" was that the conspiracy generated the heroin that the appellant had in his possession; "that’s what enabled the other counts to occur" and it seemed it was just an ongoing course of conduct. His Honour queried how he could know that. Counsel said (AB 111) there was no evidence before his Honour except for the appellant's pleas of guilty and she was "obviously trying to give evidence from the bar table in relation to it". She repeated her submission that the appellant had come into possession of the heroin, he had it in his possession, and "all of those things are generated, essentially out of the conspiracy. That was the source of the drug".
29 His Honour rejected that submission. He said that in his opinion the conspiracy was a "stand alone" offence in that it was different to the offences in counts 2 and 3 and was committed separately to them. He then proceeded to recount the facts of the individual offences.
30 There are two aspects to this point. The first is whether the substantive offences were committed within the time frame of the conspiracy; the second is whether, in any event, those two offences were in execution of the conspiratorial agreement.
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31 As to the time frame, both counsel provided brief additional written submissions following the hearing of the appeal.
32 Count 1 charged the conspiracy offence as having been committed "between 20 May 2003 and 22 July 2003". The remaining counts charged offences committed on 22 July 2003.
33 Counsel for the respondent pointed out before us that count 1 charged the conspiracy as being "between" 20 May and 22 July. He submitted that meant it occurred after 20 May and before 22 July. The other two offences were committed on 22 July 2003 and therefore after the period of the conspiracy.
34 In his written submission, Mr Watters refers to s 61(1) of the Interpretation Act 1984 (WA) which stipulates that where a period of time is expressed to begin or end at, on, or with a specified day, or to continue to or until a specified day, that day shall be included in the period.
35 In my opinion the submission of the respondent must be accepted on this. That is that s 61 has no application to this situation. The submission is clearly correct, because the section commences with the words:
"In computing time for the purposes of a written law - …"
36 Accordingly, the section has no application to the construction of the words on an indictment. The interpretation of non-statutory terms must be a matter of ordinary usage, confirmed where necessary by reference to dictionaries.
37 The "Macquarie Dictionary" (2nd Revised ed) defines "between" as:
"1. In the space separating (two or more points, objects, etc). 2. Intermediate to, in time, quantity or degree: between 12 and 1 o'clock … 9. In the intervening space or time; in an intermediate position or relation …"
38 Thus, as a matter of drafting, if beginning and end dates are meant to be included, it is usual to add a phrase such as "both dates inclusive", the addition being necessary because otherwise the expression "between 20 May and 22 July 2003" would not include the dates at each end.
39 That approach is also confirmed by the first meaning of the word "between" given in the "Australian Concise Oxford Dictionary", (2002 reprint):
(Page 14)
- "At or to a point in the area or interval bounded by two or more other points in space, time, etc."
- An example there given is "We must meet between now and Friday (meaning sometime after now and sometime before Friday)". Thus, a meeting between Tuesday and Friday might occur on Wednesday or Thursday but would not occur on either Tuesday or Friday.
40 I would accordingly conclude that the offences in counts 2 and 3 were committed on the day following the termination of the conspiracy in count 1, that is, outside the time frame of the conspiracy.
41 Nor do I think the submission that either count 2 or count 3 was an overt act of the conspiracy (or at least a consequence of it) can be sustained. There is no evidence that either was, and it cannot be assumed either was, because that proposition was never suggested before the sentencing Judge (beyond the effectively meaningless assertion that somehow the conspiracy was "the source of the drug") and the transcripts of the telephone intercepts show the method of implementation of the conspiracy was to make immediate response to customers seeking drugs. To assume otherwise would be to speculate in a way not demonstrated on the evidence and not put to the sentencing Judge in that way. Further, there was no reason to conclude that the heroin the subject of count 2 was provided to Murray by the appellant for other than his own use - but the conspiracy was for them to sell or supply to others (that is to say, it was not an agreement to sell or supply to Murray).
42 I agree with McLure JA that the offence of conspiracy consists solely of the unlawful agreement and not the overt acts performed pursuant to it. I also agree that the offence is complete once the agreement is made but that it continues until the agreement is brought to an end for whatever reason. However, here the State confined the offence charged to one of an agreement between 21 May and 22 July 2003. I consider that if the State had sought at a trial to adduce evidence of the facts encompassed by counts 2 and 3 as overt acts of the conspiracy, objection would likely to have been taken to that.
43 I would also agree with McLure JA that "the strong indication" is that the State charged a smaller conspiracy than it could have, so as to charge substantive offences in the same indictment. No point was taken about the propriety of that course and no submissions were directed to it. I would wish to reserve the expression of any view about it to an occasion upon which we had the benefit of full argument.
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44 As the State case was put, therefore, there was no element of double punishment. That, of course, does not mean the offences were not so closely related in time and circumstance to attract the "one transaction" principle.
45 However, that is only a guideline, albeit a "good working rule" (Ruane (1979) 1 A Crim R 284) and at the end of the day, his Honour was imposing sentences which in the aggregate had to proportionately reflect the criminality of the appellant manifested in the three offences. In my opinion he was entitled to exercise his discretion in the way he did.
46 His Honour expressly regarded the conspiracy offence as one separate and distinct from the other two offences and standing apart from them. He regarded it as a serious instance of conspiracy. It obviously was. As his Honour said, the facts of that offence displayed a determined willingness to sell heroin to others predominantly for financial gain.
47 Likewise, the other offences were also serious. That was the view his Honour took. As he said, the amount of heroin in the appellant's possession on 22 July 2003 was substantial. It had considerable commercial value in bulk and greater value if sold in street doses of a point. The drug had potential to cause considerable harm and misery within the community on many different levels. His Honour observed that Parliament and the community regard the distribution of drugs like heroin as a scourge within the community which must be met when detected, with strong sentences which manifest general, and in the appellant's case, personal deterrence, as well as punishment and retribution.
48 When dealing with the issue of concurrency or cumulation, his Honour repeated that counts 2 and 3 were closely linked in time and circumstances. He accordingly ordered those sentences to be served concurrently with each other; however, he repeated that the conspiracy offence was separate to the others and the sentence in respect of that should be served cumulatively. It is clear that his Honour gave careful consideration to this aspect. He expressly took into account the totality principle by taking "a final look" at the sentences to ensure that in their overall result they were properly proportionate to the appellant's criminality. He specifically noted that whilst the aggregate term of 7 years 4 months' imprisonment was a lengthy term, it was the appropriate sentence to impose upon the appellant given what he had done and having regard to the totality principle.
(Page 16)
49 There is a further aspect of this ground. It is that by reason of the order for cumulation, the total sentence was manifestly excessive. That requires further consideration of the appellant's overall criminality reflected in these offences. That includes the seriousness of the offences themselves as well as the personal antecedents of the appellant and any mitigating features.
50 The sentencing Judge correctly recognised that the need to show deterrence in particular, meant that the appellant's personal antecedents played a considerably lesser part in the sentencing process than they might otherwise.
51 The appellant was 36 years of age at the date of sentence. He was unemployed at the time of the offences. He was single but living in a supportive de facto relationship. His parents are both alive and supportive. He left school at Year 10. He has had periods of useful productive employment in the past. He has long-standing addictions to illicit substances, most notably heroin but also cannabis and amphetamines. He has a significant record of relevant prior convictions. They included convictions in the District Court. In 1994 he was convicted of possession of amphetamines and sentenced to 6 months' imprisonment. In 1997 the appellant was convicted of attempting to sell or supply heroin and was placed on a 15 month intensive supervision order. In 1999 he was convicted of three counts of possession of heroin with intent to sell or supply and one count of selling or supplying heroin. In respect of those convictions, he was initially imprisoned for 3 years, but that term was increased by the Court of Criminal Appeal in April 2000 to 6 years' imprisonment (R v Ruich [2000] WASCA 84).
52 His Honour pointed out that the appellant's record of convictions did not aggravate the sentences that he would have to impose because to do that would be to sentence him twice, but when weighed against his antecedents his Honour was unable to see how he could give any mitigating weight to them at all.
53 Significantly, the appellant was released on parole on 21 September 2001. That parole was due to expire on 21 September 2003. The offences the subject of the indictment were committed in May, June and July of 2003 and therefore constituted a breach of parole. That was an aggravating factor.
54 His Honour had regard to a pre-sentence report dated 16 June 2005 and noted that the appellant's performance on parole had deteriorated
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- markedly towards the end of his parole period. He considered that was explained by his drug use which escalated after his de facto suffered a miscarriage, although his Honour was of the view that the appellant's drug use preceded that event.
55 The appellant's parole was suspended on 12 August 2003. He was returned to remand status on 21 September that year.
56 His Honour took into account that, as a result of the appellant committing the offences on the indictment whilst on parole, he owed 730 breach days. He expressly took that factor into account in dealing with the question of totality.
57 In his Honour's view, the only real matter of mitigation was the appellant's pleas of guilty. They were not made at the first available opportunity, but in the circumstances his Honour was prepared to reduce the sentences to reflect the pleas, although he pointed out that with respect to count 3 in particular, the appellant was caught red-handed and the case against him was really overwhelming. His Honour was of the opinion that the appellant would have had no other choice but to plead guilty, but he reiterated that he was discounting the sentences to reflect what he saw to be the only mitigating factor - which was the pleas of guilty.
58 Although the primary need was for the sentence to reflect general deterrence, there was in this case also a need for personal deterrence because the fact is that when the appellant embarked upon the commission of these offences, he knew exactly what he was doing and must have known what the consequences would be if he were caught. Nonetheless, his primary goal was to make money.
59 Mr Watters handed to the Court a sheet headed "Calculation of Head Sentence" in which by a series of arithmetical calculations he worked back from the aggregate sentence of 7 years 4 months' imprisonment to conclude that the "starting point" must have been 14 years 9 months. The submission was that that term must have been the "staring point" for a sentence calculated prior to the Sentencing Act amendments.
60 The flaw in this reasoning is that the starting points are not the actual, nor the effective sentences imposed. At best they approximate what the sentences might have been prior to 31 August 2003 if there were no mitigating features at all. But the exercise is illusory - what is relevant are the actual individual and aggregate sentences imposed (Colangelo v The State of Western Australia [2004] WASCA 294 per McKechnie J at [21]; Marker v The Queen (2002) 135 A Crim R 55, [34] to [36] per
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- Murray J (with whom Malcolm CJ agreed); Grimwood v The Queen [2002] WASCA 135, per Murray J (with whom Steytler and Miller JJ agreed) at [16] - [20]).
61 In my opinion, although the aggregate sentence here was severe, I am not persuaded it was manifestly excessive. The appellant was in the business of drug dealing on a commercial basis; he had taken steps to distance himself from the street level dealing; the business was repetitive and supplied to an established market (as is indicated by the transcripts); and the appellant's previous offences show him to be a hardened and persistent offender, such that specific deterrence was a primary consideration. These matters were recognised by his Honour and taken into account by him.
62 It is apparent his Honour approached the matter in the way explained by Steytler P in The State of Western Australia v Miller (supra), and I am not persuaded that there was any error in the exercise of the sentencing discretion by the order that the sentence in respect of count 1 be served cumulatively upon the sentences for counts 2 and 3.
Ground 2: Failure to comply with s 34(2) of the Sentencing Act 1995
63 Section 34 is in Pt 4 of the Sentencing Act which is entitled "The sentencing process". The section provides as follows:
"34. Explanation of sentence
(1) A court sentencing an offender must, if the offender is personally present in court or appearing before the court by video link under section 14A, explain to the offender, in language likely to be understood -
(a) the effect of; and
(b) the obligations of the offender and the consequences of not complying with them that result from,
the sentence and any order in addition to the sentence.
(2) If a court sentencing an offender imposes a fixed term (as defined in section 85), the court is to state in open court the minimum period that the offender, as a result of the sentence and the operation of this Act, will serve in custody in respect of the term or, if more than
- one term is imposed, in respect of the aggregate of the terms.
- (3) In complying with subsection (2) a court need not take account of any other sentence of imprisonment imposed previously on the offender which the offender is serving or has yet to serve."
64 It is common ground that at no point did his Honour address the appellant directly in the manner contemplated by s 34(2).
65 A failure by a sentencing Judge who imposes a fixed term of imprisonment with an order making the offender eligible for parole, to state in open court the minimum period the offender will serve in respect of it, is a failure to comply with this mandatory statutory requirement. Albeit important, the requirement is procedural and failure to comply with it will not invalidate a sentence.
66 Section 145 of the Sentencing Act provides that:
"145. Failure to comply with procedural requirements
(1) The failure of a court sentencing an offender to comply with a requirement of this Act does not invalidate a sentence imposed or an order made by it.
(2) Subsection (1) does not affect any right to appeal against a sentence or prevent a court from dealing with such an appeal."
68 I respectfully agree that s 145 does not assist in deciding whether or not there was an error in the exercise of the sentencing discretion by a
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- sentencing Judge. As Pullin JA pointed out, what it does do is ensure the sentence is not invalid because of the failure to comply with the Act, but does not preclude any right of an appellant to appeal, nor prevent a court from dealing with an appeal. This view has been followed subsequently (see GHS v The State of Western Australia [2006] WASCA 42 per Murray AJA at [149]).
69 It is difficult to see how a failure to comply with s 34(2) could, of itself, constitute or reveal a miscarriage of justice or lead an appellate court to an opinion that a different sentence should have been imposed (which is the only basis upon which an appeal against sentence can be upheld: s 31(4) Criminal Appeals Act 2004 (WA)). That would seem likely always to be so because the explanation is in respect of the minimum time to be served of a sentence which has already been pronounced - and it is the pronouncement of the sentence which is the legally effective act (R v Legg, unreported; CCA SCt of WA; Library No 980305; 9 April 1998).
70 In this case, the appellant simply points to what he asserts was the failure of a sentencing Judge to comply with s 34(2), and says that was an error of law. It is unstated, but necessarily implicit in the submission, that the exercise of the Judge's sentencing discretion miscarried as a consequence of that error. But nothing is advanced to support that proposition. It is not explained how that may have been so, nor why, because of that error, this Court should come to the opinion that a different sentence ought to have been imposed. This ground must fail for that reason alone.
71 However, I would also reject it because the sentencing Judge in fact did comply with s 34(2), although not in the way the section contemplates.
72 At the conclusion of his sentencing remarks, his Honour explained to the appellant that the sentences he had imposed, in the aggregate, equated to a term in excess of 10 years' imprisonment under the former sentencing legislation. He then asked counsel if there was anything he had not covered. There was then the following exchange (AB 123 - 125):
"PETRUSA, MS: Just briefly: your Honour needs to indicate the time he needs to serve prior to release on parole.
MAZZA DCJ: No, I don't. I have indicated - perhaps I should make the formal order that the sentences are to be served
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- concurrently with the breach days he owes. I think that's sufficient, isn't it?
PETRUSA, MS: Your Honour, I think it's section 37 of the Sentencing Act. Your Honour just needs to indicate how long he needs to serve before he's eligible for release on parole which would be - - -
MAZZA DCJ: No, I don't. No, I don't. If I make him eligible for parole - I mean, I will have to look at section 37 but - - -
PETRUSA, MS: I think it's 37. I will just make sure that I have drawn your Honour's attention to the correct provision. It's not the correct one, your Honour, I apologise.
MAZZA DCJ: No. Look, Ms Petrusa, the key thing that I have to - the Sentencing Act requires me to set the length of the term of imprisonment and then to decide whether he's eligible for parole or not. Prior to that I have to decide obviously issues of concurrency, cumulacy, partial cumulacy. I think I have dealt with all those issues so that it's abundantly clear that this sentence is to run concurrently with any sentence that he is currently serving or liable to serve. Is that clear for your purposes, Ms Horrigan?
HORRIGAN, MS: Yes, sir.
PETRUSA, MS: Your Honour, I'm not saying your Honour has not been clear in the sentence your Honour has imposed. That is not the issue.
MAZZA DCJ: No.
PETRUSA, MS: And I'm having some difficulty pinpointing it but there is a provision that requires - - -
MAZZA DCJ: I think I'm having difficulty understanding your submission.
PETRUSA, MS: Yes - that requires you to explain the sentence to the accused so he knows how long he has got to serve. He has got to serve five years four months from the date of the commencement of the sentence.
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- MAZZA DCJ: Yes. Look, the Sentencing Act requires me to certainly explain to anybody who is sentenced to a term of imprisonment why I'm sentencing him to a term of imprisonment.
PETRUSA, MS: Section 34 subsection (2) of the Sentencing Act:
If a court sentencing an offender imposes a fixed term, the court is to state in open court the minimum period that the offender as a result of the sentence and the operation of this act will serve in custody in respect of the term or, if more than one term is imposed, in respect to the aggregate terms.
MAZZA DCJ: Well, you see - - -
PETRUSA, MS: That's all your Honour needs to say. Your Honour doesn't have to give a date - - -
MAZZA DCJ: I don't think I should and can I tell you why, Ms Petrusa?
PETRUSA, MS: Certainly, your Honour.
MAZZA DCJ: You see, the effect of a parole eligibility order is not to convey that a person will be released at that first opportunity. The reality might be that many people are, but not everybody is and certainly not everybody is released on parole. As to section 34 subsection (2) I think that what I have done is sufficient. I must say, Ms Petrusa, it's not the - and I have been around these courts for a long time and I have been around since the Sentencing Act started in 1995 and I have never heard a sentencing judge say, 'Right you have just been sentenced to X years. You will be eligible for parole in' - whatever the calculation is.
PETRUSA, MS: I appreciate that, your Honour. I recently had a matter in the Court of Appeal and the Court of Appeal raised that very issue.
MAZZA DCJ: Did they?
PETRUSA, MS: They did.
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- MAZZA DCJ: It's just not the way in which it's been done in this court. It's been done on the basis that I have told him what his sentence is. I have told him that he is eligible for parole. That means that he would be considered first - the first time he would be considered eligible for parole would be after five years and four months, but that's not to say that that's what he will - - -
PETRUSA, MS: And that's - - -
MAZZA DCJ: If I have said - I'm sure Ms Horrigan will explain all that to him and I'm sure Mr Ruich appreciates that. Thank you for drawing that to my attention. Thank you for telling me that that's what's happening down at the Court of Appeal.
PETRUSA, MS: Thank you, your Honour."
73 With all due respect, the State prosecutor was right to raise the point with his Honour and quite right in what she put to him about it. As I have explained, the requirement is a statutory one and must be complied with. Its purpose is to ensure the offender and all present in court understand what sentence has been imposed, what orders have been made and the effect of them. It makes for transparency in sentencing and helps reduce the possibility of error in the calculation of the non-parole period by those who have to administer sentences (Chivers (supra) per Pullin JA at [74]).
74 Nevertheless, despite his Honour's expressed disinclination to state in open court the minimum period the appellant would have to serve before eligibility for parole, he in fact did so. He stated that the first time the appellant would be considered for eligibility for parole would be after he had served 5 years 4 months. He did therefore comply with s 34(2) - although apparently not intending to. Be that as it may, he did do so, and this ground must fail on that account also.
Ground 3: Combination of errors
75 As I have concluded that each of grounds 1 and 2 must fail, it follows that there is no "combination or aggregation" of defects identified in those grounds to reveal or constitute a substantial miscarriage of justice, and accordingly this ground must fail also.
Conclusion
76 I would dismiss the appeal.
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77 McLURE JA: The appellant appeals against a total effective sentence of 7 years and 4 months' imprisonment. The relevant background material is detailed in the reasons for judgment of Roberts-Smith JA and not repeated here unless required for an understanding of these reasons.
78 The appellant was convicted of one count of conspiracy to sell or supply heroin to another, one count of supplying heroin and one count of possession of heroin with intent to sell or supply. The counts were in the following terms:
1. "Between 20 May 2003 and 22 July 2003 at Landsdale [the appellant] and Patrick James Murray conspired together to sell or supply a prohibited drug, namely heroin, to another [contrary to s 6(1)(a) and s 33(2) of the Misuse of Drugs Act 1981 (WA) ("MDA")]."
2. "On 22 July 2003 at Landsdale [the appellant] supplied a prohibited drug, namely heroin, to another [Murray]."
3. "On the same day and at the same place as in Count 2 at Landsdale [the appellant] had in his possession a prohibited drug, namely heroin, with intent to sell or supply it to another."
79 On 1 July 2005, the appellant was sentenced to 2 years 8 months' imprisonment on count 1, 2 years 8 months' imprisonment on count 2 and 4 years 8 months' imprisonment on count 3. The sentencing Judge ordered that the sentences on counts 2 and 3 be served concurrently and that count 1 be served cumulatively with counts 2 and 3 resulting in a total sentence of 7 years and 4 months. That equates to 11 years under the sentencing regime that applied prior to the commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA).
80 The appellant's first ground of appeal is to the effect that the sentencing Judge's discretion miscarried when he failed to order that the sentence on count 1 be served partially concurrently with the sentences imposed on counts 2 and 3 such that the total sentence was manifestly excessive. The basis for the submission was that the heroin supplied in count 2 and in his possession in count 3 "emanated from the heroin purchased concerning [count] 1". There was no evidence to that effect. The sentencing Judge dismissed that suggestion but went further and said:
"The conspiracy in my opinion is a stand-alone offence in that it is different to the offences contained in counts 2 and 3 of the indictment and was committed separately to those offences."
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81 It is necessary to say something about the offence of conspiracy. Conspiracy is an inchoate crime that consists solely of an agreement and not such overt acts as may be performed pursuant to the agreement: Western Australia v Marchesi (2005) 30 WAR 359 at [14] per Steytler P. It is wrong to sentence an offender twice for the conspiracy and for the substantive offence(s) committed pursuant to the conspiracy: R v Hoar (1981) 148 CLR 32 at 33. The High Court has criticised charging a conspiracy to commit a crime as well as charging the substantive crimes alleged to have been committed pursuant to it, especially when the counts are in the same indictment: Hoar at 38. The High Court said (at 38) that generally speaking, it is undesirable that a conspiracy should be charged when a substantive offence has been committed and there is a sufficient and effective charge that the offence has been committed.
82 However, in appropriate circumstances it is preferable to charge a conspiracy rather than the substantive offences committed pursuant to the conspiracy: Shepherd (1988) 37 A Crim R 303. In Shepherd, the Crown charged a conspiracy notwithstanding there was evidence that the substantive offences committed pursuant to the conspiracy had been completed. The New South Wales Court of Criminal Appeal held it was appropriate to bring a charge of conspiracy where there was an active ring operating over a period of time and effecting a number of transactions all within the same organisational framework in which a number of offences were committed. The Court said (at 310) that in those circumstances there is no requirement for the Crown to select particular substantive offences and to proceed to trial on an indictment charging those, rather than one which accords with the reality of the situation, namely, a charge of a conspiracy to set up and operate the organisation. See also Collard v The State of Western Australia [2004] WASCA 297.
83 Furthermore, the content, duration and reality of the conspiracy, including whether the offence(s) the subject of the conspiracy have been committed, are relevant factors in determining the appropriate sentence for the conspiracy: Savvas v The Queen (1995) 183 CLR 1 at 6.
84 In this case the State provided the material facts of the conspiracy as follows:
"[B]etween 21 May and 22 July 2003 [the appellant] and the co-accused Murray conspired together to sell heroin to others. [The appellant], who resides at … Landsdale, obtained heroin at regular intervals with the intention of selling it to others. [The appellant], being aware of the inherent risk of
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- apprehension involved in selling heroin, employed the services of his long-time associate Murray to carry out the majority of transactions involved in the street dealing.
The accused Murray … travelled to [the appellant's] address on a daily basis to collect the heroin for distribution. After sourcing the heroin the offender weighed and packaged the drug for sale at his home address prior to handing it to his co-accused Murray. The co-accused Murray then distributed the heroin to drug users who had placed orders by means of a mobile telephone and utilising [the appellant's vehicle] …
The co-accused Murray often would return to [the appellant's] address throughout the day to obtain further deals after taking orders from drug users. The appellant and the co-accused conducted their drug dealing in the manner of a business, using operating hours and referring to the mobile telephone carried by the co-accused as 'the work phone'. The appellant received the moneys derived from the sale of heroin and paid the co-accused a wage for his involvement."
85 Save for the claims that the appellant and Murray were in business together and that the appellant paid Murray a wage, the appellant admitted the facts. However, the sentencing Judge found that the appellant and Murray were in the business of selling heroin to others and this finding was not challenged in the appeal.
86 Count 1 contains only one charge of conspiracy otherwise it would be bad for duplicity. A conspiracy offence is complete once the agreement has been made although the conspiracy continues in existence during the time in which its unlawful purpose is put into effect. In Director of Public Prosecutions v Doot [1973] AC 807 Lord Pearson said (at 827):
"A conspiracy involves an agreement express or implied. … But as an agreement it has its three stages, namely (1) making or formation (2) performance or implementation (3) discharge or termination. When the conspiratorial agreement has been made, the offence of conspiracy is complete, it has been committed, and the conspirators can be prosecuted even though no performance has taken place … But the fact that the offence of conspiracy is complete at that stage does not mean that the conspiratorial agreement is finished with. It is not dead. If it is
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- being performed, it is very much alive. So long as the performance continues, it is operating, it is being carried out by the conspirators, and it is governing or at any rate influencing their conduct. The conspiratorial agreement continues in operation and therefore in existence until it is discharged (terminated) by completion of its performance or by abandonment or frustration or however it may be."
87 In this case there is one agreement (conspiracy) involving the commission of multiple (but unparticularised) offences of selling or supplying heroin to others. It is unclear to what the date range "between 21 May and 22 July 2003" refers. It cannot be the date of the agreement (conspiracy) which must have been in existence at the commencement of the conspiracy. Perhaps it is intended to refer to the period in which the conspiracy continued or the period in which the substantive offences were committed pursuant to the conspiracy. Whatever the intention, there is nothing in the material facts to support an inference that the conspiracy was discharged or terminated on 21 July 2003. To the contrary, the overt acts constituting the offences the subject of counts 2 and 3 are entirely consistent with the continuation of the conspiracy on 22 July 2003. The conspiracy was to sell and supply heroin to third parties. The appellant's role was to obtain the heroin and supply it (as that term is defined in the MDA) to Murray for on-sale to third parties. The substantive offences in counts 2 and 3 are offences which would have to be committed at a stage short of the actual supply of heroin to third parties. They are necessary elements leading to the commission of the substantive offence the subject of the conspiracy. If the substantive offences committed pursuant to a conspiracy cannot be the subject of double punishment, neither in my view can the preparatory offences.
88 The strong indication is that the State charged a smaller conspiracy than that which the available evidence identified in order to charge substantive offences in the same indictment. We were not addressed on the propriety of that course (as to which, see Gillies, "The Law of Criminal Conspiracy" 2nd ed at 217 - 219). In any event, in the absence of evidence from the State rebutting the inference that the conspiracy had not ended by the time the appellant committed the offences on 22 July 2003, the appropriate course for sentencing purposes is to regard counts 2 and 3 as overt acts in furtherance of, or pursuant to, the conspiracy. That could be reflected in sentencing by imposing a penalty for the conspiracy which took into account the numerous substantive offences and the preparatory offences actually committed between 20 May 2003 and 22 July 2003 with no additional penalty for counts 2 and 3. Alternatively,
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- individual sentences may be imposed for each of counts 1, 2 and 3 but ensuring no double punishment and with the close relationship between the offences reflected in the orders for cumulation and concurrency, subject to considerations of totality: see Pearce v The Queen (1998) 194 CLR 610 at 624; Dickens v The Queen (2004) 147 A Crim R 343 at [11] - [12]. On any view, overt charged acts in furtherance of a charged conspiracy would together be "one multi-faceted course of criminal conduct" and thus fall within the "one transaction rule" (R v Faithfull (2004) 142 A Crim R 554 at [25] - [28]; Dickens (supra)). I should also make express what is implicit in these reasons. My conclusion that there is a close relationship between all the counts does not depend on whether or not the nominated period in the conspiracy count is construed to include 22 July 2003.
89 As will be apparent from these reasons, I am of the opinion the sentencing Judge erred in concluding that the conspiracy was a stand alone offence that was different to the substantive offences in counts 2 and 3. However, the error does not require that the appeal be allowed. This Court is only entitled to allow an appeal if, in its opinion, a different sentence should have been imposed (s 31(4) of the Criminal Appeals Act 2004 (WA)). In this case the only challenge was to the total effective sentence.
90 Matters personal to the appellant are detailed in the judgement of Roberts-Smith JA. It is sufficient to note that the appellant has a significant record of relevant prior convictions. His offending is associated with his drug addiction. In 1999, he was convicted of 3 counts of possession of heroin with intent to sell or supply and 1 count of selling or supplying heroin for which he received a term of imprisonment of 6 years (R v Ruich [2000] WASCA 84). He committed the offences the subject of this appeal whilst on parole for the 1999 convictions. The offences the subject of this appeal are not an uncharacteristic aberration but a manifestation of a continuing attitude of disobedience of the law: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 - 478.
91 Having regard to the matters personal to the appellant and to the duration and reality of the conspiracy, including what was actually done pursuant to the conspiracy which included numerous substantive offences of selling or supplying heroin to third parties and the preparatory offences, a total effective term of 7 years and 4 months is an appropriate measure of the total criminality involved in the conduct as a whole. I would have structured the sentences differently to reflect the seriousness of the conspiracy, which in my view was underestimated by the sentencing
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- Judge (see Collard (supra)), and its close relationship with the other counts but with no different result. Accordingly, I would dismiss ground 1. I agree with Roberts-Smith JA on grounds 2 and 3 and would also dismiss the appeal.
92 BUSS JA: I agree with McLure JA in relation to ground 1, and with Roberts-Smith JA in relation to grounds 2 and 3. I would dismiss the appeal.
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