Ruvinovski v The State of Western Australia
[2013] WASCA 204
•30 AUGUST 2013
RUVINOVSKI -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 204
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 204 | |
| Case No: | CACR:105/2013 | 7 AUGUST 2013 | |
| Coram: | MAZZA JA HALL J | 30/08/13 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | IVAN RUVINOVSKI THE STATE OF WESTERN AUSTRALIA VLADO RUVINOVSKI |
Catchwords: | Criminal law Application for leave to appeal against sentence Conspiracy to sell or supply methylamphetamine Appellants at high level Involvement with previous shipments Manifest excess |
Legislation: | Nil |
Case References: | Bahn v The State of Western Australia [2008] WASCA 40 Basilio v The State of Western Australia [2010] WASCA 202 Collard v The State of Western Australia [2004] WASCA 297 Galbraith v The State of Western Australia [2011] WASCA 70 Jecks v the State of Western Australia [2007] WASCA 111 JKL v The State of Western Australia [2012] WASCA 215 Kirby v The State of Western Australia [2003] WASCA 164 Kitis v The State of Western Australia [2013] WASCA 34 Koncurat v The State of Western Australia [2010] WASCA 184 Krakouer (1999) 107 A Crim R 408 Mikulic v The State of Western Australia [2011] WASCA 127 Ness v The State of Western Australia (No2) [2013] WASCA 56 Neumann v The State of Western Australia [2013] WASCA 70 Ozan v The State of Western Australia [2013] WASCA 27 Penney v The State of Western Australia [2011] WASCA 71 Ruvinovski v The Queen [2000] WASCA 398; (2000) 116 A Crim R 131 Samuels v The State of Western Australia [2005] WASCA 193 Savvas v R (1995) 183 CLR 1 Washer v The State of Western Australia [2008] WASCA 135 Yazdani v The State of Western Australia [2006] WASCA 221 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : RUVINOVSKI -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 204 CORAM : MAZZA JA
- HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No : CACR 105 of 2013
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : CURTHOYS DCJ
File No : IND 1668 of 2010
For File No : CACR 106 of 2013
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : CURTHOYS DCJ
File No : IND 1668 of 2010
Catchwords:
Criminal law - Application for leave to appeal against sentence - Conspiracy to sell or supply methylamphetamine - Appellants at high level - Involvement with previous shipments - Manifest excess
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
CACR 105 of 2013
Counsel:
Appellant : Mr S Vandongen SC
Respondent : No appearance
Solicitors:
Appellant : Seamus Rafferty
Respondent : Director of Public Prosecutions (WA)
CACR 106 of 2013
Counsel:
Appellant : Mr S Vandongen SC
Respondent : No appearance
Solicitors:
Appellant : Seamus Rafferty
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bahn v The State of Western Australia [2008] WASCA 40
Basilio v The State of Western Australia [2010] WASCA 202
Collard v The State of Western Australia [2004] WASCA 297
Galbraith v The State of Western Australia [2011] WASCA 70
Jecks v the State of Western Australia [2007] WASCA 111
JKL v The State of Western Australia [2012] WASCA 215
Kirby v The State of Western Australia [2003] WASCA 164
Kitis v The State of Western Australia [2013] WASCA 34
Koncurat v The State of Western Australia [2010] WASCA 184
Krakouer (1999) 107 A Crim R 408
Mikulic v The State of Western Australia [2011] WASCA 127
Ness v The State of Western Australia (No2) [2013] WASCA 56
Neumann v The State of Western Australia [2013] WASCA 70
Ozan v The State of Western Australia [2013] WASCA 27
Penney v The State of Western Australia [2011] WASCA 71
Ruvinovski v The Queen [2000] WASCA 398; (2000) 116 A Crim R 131
Samuels v The State of Western Australia [2005] WASCA 193
Savvas v The Queen (1995) 183 CLR 1
Washer v The State of Western Australia [2008] WASCA 135
Yazdani v The State of Western Australia [2006] WASCA 221
1 MAZZA JA: I agree with Hall J.
2 HALL J: These two applications for leave to appeal against sentence were heard together.
3 The appellants are father (Vlado) and son (Ivan). They were both convicted of conspiracy to sell or supply a prohibited drug, namely methylamphetamine. Vlado Ruvinovski was convicted following a plea of guilty on 30 January 2013 and Ivan Ruvinovski was convicted following a trial that took place between 27 February and 12 March 2013.
4 On 30 April 2013 the appellants were sentenced to 10 years' imprisonment (Vlado) and 8 years imprisonment (Ivan). They each claim that the sentence imposed on him is manifestly excessive.
Facts
5 The facts are not in dispute.
6 Between February and April 2010, Vlado Ruvinovski arranged with a contact in New South Wales, Kire Janakievsky, for four shipments of methylamphetamine from New South Wales to Western Australia. The conspiracy offence of which both of the appellants were convicted related to the fourth of these shipments. Evidence of the earlier shipments was accepted as being relevant in sentencing to show that the fourth shipment was not an isolated event.
7 The methodology employed for each of the four shipments was similar. Vlado Ruvinovski, who was based in Western Australia, made arrangements with Janakievsky to purchase quantities of methylamphetamine that were then shipped to Western Australia in order to be sold to buyers in this State. On each occasion Ivan Ruvinovski travelled to Sydney and met with Janakievsky and the courier, Mitko Krsteski. After the drugs had been sourced Ivan Ruvinovski assisted Krsteski in making arrangements to fly to Perth. On arrival in Perth Krsteski was met by Vlado Ruvinovski who arranged for the drugs to be sold to a local buyer.
8 As regards the fourth shipment the facts were that on 7 April 2010 Vlado Ruvinovski rang Janakievsky and said that he would be meeting with local buyers the following day. On 8 April 2010 Vlado and Ivan Ruvinovski met the buyers at a hotel in Applecross. Vlado Ruvinovski then contacted Janakievsky to advise of the buyers intention. He said that he (Vlado) needed to speak to Janakievsky in person.
9 On 19 April 2010 Vlado Ruvinovski flew to Sydney where he met with Janakievsky and Krsteski. The following day he returned to Perth and met with one of the local buyers. On 24 April 2010 Vlado Ruvinovski spoke to Janakievsky and Krsteski about a delay in the availability of the drugs. They discussed changing Ivan Ruvkinovksi's travel plans. Vlado Ruvinovski then rang Ivan Ruvinovski and said that he was waiting for him at his house. Ivan Ruvinovski then rebooked a flight to Sydney for 28 April 2010.
10 On 27 April 2010 there were discussions between Krsteski and Vlado Ruvinovski about the quality of the drugs. There was a suggestion that Ivan Ruvinovski would inspect them. There was a possibility of cancelling the order, however Janakievsky later telephoned Vlado Ruvinovski and confirmed that everything was in order. Ivan Ruvinovski then called one of the buyers to arrange to meet with him at a shop that afternoon.
11 On 28 April 2010, Ivan Ruvinovski travelled to Sydney. Also on the flight was one of the West Australian buyers. They did not sit next to each other on the plane. However, when they arrived in Sydney Ivan Ruvinovski hired a car and drove the buyer to Cronulla where the buyer was dropped off. Ivan Ruvinovski then drove to Janakievsky's house. He later met with Krsteski and drove him to a travel agency to purchase an airline ticket to Perth for the following day.
12 On 29 April 2010 Ivan Ruvinovski returned to Perth. Krsteski also travelled to Perth that day, though on a later plane. Krsteski was carrying a quantity of methylamphetamine. Later that day Vlado Ruvinovski met one of the local buyers and then contacted Krsteski to arrange to meet.
13 The meeting did not occur. There was some confusion between Vlado Ruvinovski and Krsteski about the intended meeting place. Krsteski returned to his hotel where he was arrested by police. A search warrant was executed and a suit case containing a pair of Ugg boots was found. Inside each boot was a parcel wrapped in grey tape. Each of the parcels contained a quantity of methylamphetamine.
14 The total quantity of methylamphetamine was 1.252 kg with a purity ranging between 68% and 70%. The total value of the drugs was estimated at $536,000 if sold in ounce quantities. The methylamphetamine was of a sufficiently high quality that it could be cut up to four times which would increase the total amount to approximately 5 kg with a purity of 17% and a value of approximately $1.5 million if sold in ounce quantities.
15 Unaware that the police had apprehended Krsteski, Vlado Ruvinovski met with the local buyer at Gloucester Park. Following this meeting he returned to his car with a red and yellow package. He then drove to the residence of Ivan Ruvinovski. Police executed a search warrant at that address a short time later.
16 The red and yellow package was located in Vlado Ruvinovski's car and found to contain $47,100 in cash. Equipment associated with drug dealing was found in the house. This included large quantities of a cutting agent, a firearm, a large number of empty clip seal bags, smoking paraphernalia, electronic scales with traces of methylamphetamine and quantities of cash.
Personal circumstances - Vlado Ruvinovski
17 Vlado Ruvinovski was 63 years of age at the time he came to be sentenced. He was born in Macedonia and finished his schooling there. He migrated to Australia in 1970 and initially lived and worked in New South Wales. He married in 1982 and has two adult children. He has lived in Perth for the last 17 years.
18 Vlado Ruvinovski has suffered from depression since the late 1980's and been in receipt of a disability pension since that time. There was a report from Dr S H Kostov confirming that Mr Ruvinovski had been under his care since June 2005. Dr Kostov confirmed that Mr Ruvinovski has a long history of depressive illness, chronic dysthymia and generalised anxiety disorder. Consultations with Dr Kostov occurred every two to three months and the depressive illness was treated with medication.
19 There was also a report from Dr L Tarquinio to the effect that Vlado Ruvinovski had been diagnosed with Crohns Colitis. This had been treated with medication and required three to four monthly blood test monitoring. His condition was unpredictable and there have been intermittent incidents involving significant abdominal pain with diarrhoea and rectal bleeding. The most recent incident was in October 2012. Counsel for Mr Ruvinovski in the District Court accepted that this was a condition that could be managed in a custodial environment.
20 Vlado Ruvinovski has previously committed a serious drug offence. On 28 May 1999 he was convicted following a trial of attempting to obtain possession of a commercial quantity of a prohibited import, namely MDMA (ecstasy) contrary to s 233B(1)(c) of the Customs Act 1901. He was sentenced to 13 years' imprisonment with an 8 year non-parole period. The non-parole period was reduced to 6 years 8 months on appeal: Ruvinovski v The Queen [2000] WASCA 398; (2000) 116 A Crim R 131. The facts of this offence can be briefly summarised as follows; Vlado Ruvinovski, with others, attempted to obtain possession of 6,007 tablets with a total weight of 1.976 kg from a courier who had arrived with the drugs on a flight from Amsterdam.
21 Vlado Ruvinovski entered a plea of guilty to the present charge on 30 January 2013. This was three working days before his trial was due to commence. That trial had been listed for 40 days. The plea of guilty was entered following a ruling on 25 January 2013 regarding the admissibility of evidence, including evidence of the three earlier shipments.
Personal circumstances - Ivan Ruvinovski
22 Ivan Ruvinovski was 28 years of age at the time he came to be sentenced. He had completed his primary and secondary schooling in Western Australia before attending a TAFE college for a short time. His father had been imprisoned when he was 13, though they had maintained regular contact.
23 After school, Ivan Ruvinovski gained employment in the building industry as a plasterer. However, due to unavailability of work, he also worked in a shoe shop and building wood-fired ovens.
24 At around the age of 19 or 20, Ivan Ruvinovski was introduced to ecstasy and amphetamine and began using those drugs. It was suggested that the paraphernalia found when the police searched his house was consistent with his continued use of drugs. He does have a criminal record, including for possession of drugs, but his past offences are of a minor nature.
25 Ivan Ruvinovski maintained his plea of not guilty and went to trial between 27 February and 12 March 2013.
Sentencing remarks
26 The sentencing judge noted that the offending involved a very substantial quantity of methylamphetamine of very high purity. This was said to be consistent with the methylamphetamine being close to the source of manufacture.
27 His Honour said that in the case of Vlado Ruvinovski there was no suggestion that he was a drug user. Whilst there was evidence that Ivan Ruvinovski was a drug user, it had not been suggested that his offending was motivated by any need to fund his addiction. His Honour concluded that both of the appellants were involved purely for commercial purposes.
28 His Honour found that both appellants were part of a very well organised syndicate. He said that Vlado Ruvinovski was involved in planning the shipments of drugs and had a close association with Janakievsky. With the assistance of Janakievsky he had arranged for the supply of drugs in NSW and transport of the drugs to Perth by the courier, Krsteski. He had collected cash from the buyers and delivered it to Krsteski and had monitored the delivery of the drugs. He had also involved his son in this enterprise.
29 As regards Ivan Ruvinovski, his Honour found that he had travelled to and from Sydney in order to aid the shipment of drugs by Krsteski. He travelled in company with a buyer who was responsible for transporting money and had then taken the money from the buyer to Janakievsky. Whilst in Sydney, Ivan Ruvinovski had met with Krsteski and the intended buyers. His Honour concluded that Ivan Ruvinovki's involvement in the mechanics of the conspiracy was greater than that of the courier, Krsteski.
30 His Honour acknowledged that the conspiracy related only to the fourth shipment. However, he said that the first three shipments formed part of the surrounding circumstances that were relevant to an assessment of the seriousness of the conspiracy offence. He said that it was clear that the conduct that was the subject of the offence was not an isolated transaction but part of a commercial drug dealing enterprise. The precise quantity of prohibited drugs involved in the earlier shipments was not known. However, a covert search by police had established that after the first shipment, Krsteski had returned to Sydney with $30,000 in cash. A listening device had also recorded a conversation between Ivan Ruvinovski and Krsteski that suggested that the third shipment involved approximately 996 g of methylamphetamine.
31 His Honour said that it was apparent that Vlado Ruvinovski had a serious record in relation to trafficking illegal drugs and this underscored the need for personal deterrence. He said that the present offence exhibited a continuing attitude of disobedience to the law.
32 His Honour said that Vlado Ruvinovski's plea of guilty was not of great significance due to its lateness. He assessed the value of that plea as being deserving of a discount of 10%.
33 His Honour's conclusions regarding the respective roles of the appellants were as follows:
[I]t's clear that Vlado Ruvinovski was involved in the very significant drug enterprise and his role in the enterprise was important and significant. He met with both - and had contact with both the supplier of the drugs, with those who are undertaking the transport of the drugs. He collected the money. He plainly knew that it was a substantial quantity of the drug that he was conspiring to have sold or supplied.
He knew it was intended for distribution into the community and that it was of high purity. He had involvement at every step of the transaction from when the dealings with Mr Kire Janakievski to the point where it reached a hotel room. He had heavy involvement in each of the previous shipments. He was involved through Mr Janakievski both in New South Wales and in Western Australia.
It's plain that he was at a level only one removed from - that Janakievski was receiving the drugs from the manufacturers. So he was very closely linked to Mr Janakievski and as I've said, involved in every step of the chain of distribution down to when it was to be on-sold to the buyers of the large quantity in Western Australia and the weight, purity and value of the methylamphetamine were very, very significant.
In terms of the involvement of Ivan Ruvinoski, his role was less than his father's. Nevertheless, he was involved and did play a significant part in the transfer from Sydney to Perth. He travelled to Sydney and returned from Sydney. He was present at meetings with the buyers. He had contact with Mr Janakievski and Krsteski and he had a more serious involvement than that of Mr Krsteski. Taking all those factors then, both were in it for commercial reward (781).
Proposed Grounds of Appeal - Are the sentences manifestly excessive?
34 Each of the appellants submits that the sentence imposed on him is manifestly excessive.
35 A complaint that a sentence is manifestly excessive is a complaint that a sentencing judge has made an implied error. To determine whether a sentence is manifestly excessive it is necessary to examine it from the perspective of the maximum sentence prescribed by law for the offence, the standards of sentence customarily observed in respect of that offence, the place which the criminal conduct occupies on the scale of seriousness for offences of the kind in question and the personal circumstances of the offender.
36 The maximum penalty for an offence of conspiracy to sell or supply a prohibited drug contrary to s 33(2)(a) of the Misuse of Drugs Act 1981 (WA) is 20 years' imprisonment or a fine of $75,000 or both.
37 As to the place which the criminal conduct occupies on the scale of seriousness, the appellants accept that the offence committed by each of them was very serious. It is also accepted that, to the extent that the objectives of the conspiracy were not achieved, this was due to the intervention of the police.
38 The sentencing considerations for offences dealing with prohibited drugs have been stated on countless occasions: see most recently Ness v The State of Western Australia (No2) [2013] WASCA 56. The major sentencing considerations are personal and general deterrence. The weight of the drugs is not the only factor to be taken into account, 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 and whether the offending was committed for commercial gain. The purity of the drug is often regarded as significant. The quantity and purity of a drug show the potential harm to the community and may indicate where the offender sits in the chain of distribution. Matters personal to an offender are almost always subsidiary considerations, although they are not completely irrelevant.
39 In assessing the appropriate sentence for conspiracy, the content, duration and reality of the conspiracy are relevant: Savvas v The Queen (1995) 183 CLR 1. In this case the object of the conspiracy was clearly to procure large quantities of methylamphetamine in New South Wales, to ship them to Western Australia and to sell them here for a profit. The conspiracy was on foot between 7 and 29 April 2010. Although this may seem to be a relatively short period, it must be seen in the context that it was part of a continuing enterprise and its objectives had largely been achieved. The drugs had been brought to Western Australia and arrangements made with a local buyer before the conspiracy was frustrated by the intervention of the police.
40 There are a number of factors that place the appellants offending conduct into a particularly serious category. They are:
1. that this was not an isolated incident, rather it occurred in the context of a criminal enterprise that had involved three previous similar shipments;
2. the large quantity of drugs involved;
3. the high purity and consequential high value of the drugs; and
4. the significant role of each of the appellants.
41 The characterisation of the role of each of the appellants by the sentencing judge was not disputed. Clearly each of them played an important role in the purchase, movement and on-sale of very significant quantities of methylamphetamine. It may be accepted that Vlado Ruvinovski had a more senior position than that of his son. However, it is also clear that Ivan Ruvinovski was recruited because he could be trusted to make the necessary arrangements to purchase the drugs in Sydney. Both men were significantly more culpable than the courier Krsteski.
42 The offence for which the appellants were sentenced did not encompass the three earlier shipments. Any sentence imposed could not incorporate punishment for those earlier shipments. However, that does not mean that the earlier shipments were irrelevant. They provided the context in which the conspiracy relating to the fourth shipment occurred. This was not an isolated act by men of otherwise good character, rather it was the most recent transaction in an established criminal business to which both appellants had a demonstrated commitment.
43 As regards the personal circumstances of the appellants, there was very little that mitigated their conduct. Vlado Ruvinovski had some health issues but they had not contributed to his offending and there was nothing to suggest that they would cause imprisonment to be significantly more harsh. In any event such factors are of comparatively little weight in respect of an offence of this nature. He had pleaded guilty, but at a very late stage.
44 Vlado Ruvinovski's previous offending was not an aggravating factor, but it could not be said that he came before the court having good character. His willingness to re-offend in a similar way demonstrated a disregard for the law and increased the need for personal deterrence. The fact that he had been willing to involve his son in serious criminal conduct also reflected poorly on him.
45 Ivan Ruvinovski's personal circumstances were unremarkable. There were some indications of drug use, but not of an extent that could explain his involvement. Nor was there any reason to think that he had any motive other than personal gain. He was 25 when the offence was committed, so youth was no longer a significant mitigating factor. Furthermore, given his father's past record he must have participated in this conspiracy fully aware of the illegality and the high risks of being imprisoned if caught.
46 As regards to standards of sentence customarily observed, the assistance afforded by comparable cases is flexible and provides only a general guide: JKL v The State of Western Australia [2012] WASCA 215 per Buss JA (22). This is only one factor to take into account in considering whether a sentence is manifestly excessive. Furthermore, comparisons between individual cases will rarely be helpful given the wide range of circumstances in which offences like this may occur.
47 The appellants submit that the offence of conspiracy to sell or supply a prohibited drug must have been regarded by Parliament as being in a less serious category than the substantive offence of selling or supplying a prohibited drug bearing in mind the differences in the maximum penalties. As noted above, the conspiracy offence attracts a maximum penalty of 20 years imprisonment. The maximum penalty for the substantive offence of selling or supplying a prohibited drug is 25 years' imprisonment: s 6(1) of the Misuse of Drugs Act.
48 The maximum penalty is certainly one of the relevant factors to take into account in assessing whether a sentence is manifestly excessive. However, it does not follow that an offence of conspiracy will necessarily be less serious than one of possession. The seriousness of an offence will always significantly depend upon the particular factual circumstances. In some cases a conspiracy may be thwarted at an early stage. In other cases, as here, the conspiracy may have effectively achieved its objectives.
49 Nonetheless, the difference in the maximum penalties does mean that care should be exercised in comparing sentences imposed for conspiracies with those for possessing or selling or supplying drugs. There are, however, a number of cases involving sentences for conspiracy.
50 In Yazdani v The State of Western Australia [2006] WASCA 221 Martin CJ conducted a review of a number of cases in which the appellant had been convicted of a conspiracy contrary to s 33(2)(a) of the Misuse of Drugs Act. The sentences imposed in those cases varied significantly and this reflected the widely differing factual circumstances.
51 Amongst the higher sentences imposed were those in Collard v The State of Western Australia [2004] WASCA 297. In that case three people were charged with conspiracy to sell methylamphetamine. Two pleaded guilty and one was convicted after trial. The evidence was that the three offenders were running a well organised business of supplying methylamphetamine. A starting point of 14 years' imprisonment was reduced to 13 years for the two conspirators who pleaded guilty and 13.5 years for the conspirator who had not pleaded guilty but had nevertheless cooperated during the trial. The sentences were then reduced by one third to take into account the transitional provisions which produced sentences of 8 years and 8 months and 9 years respectively.
52 In Krakouer (1999) 107 A Crim R 408, the offender was convicted after trial of conspiracy to possess methylamphetamine with intent to sell or supply. He was also convicted of attempting to possess methylamphetamine with intent to sell or supply. The quantity involved was very substantial - 5.3 kg. On the conspiracy count, the offender was sentenced to 16 years imprisonment. In post transitional terms this is equivalent to a sentence of 10 years and 8 months.
53 Yazdani itself involved three offences of conspiring to sell a prohibited drug. The two offenders, Yazdani and Chopra, received total effective sentences of 5 years and 8 months and 5 years and 4 months respectively. The total quantity of drugs involved was significantly less than in the present case.
54 The appellant referred to three other cases that have been decided since Yazdani; Washer v The State of Western Australia [2008] WASCA 135, Bahn v The State of Western Australia [2008] WASCA 40 and Neumann v The State of Western Australia [2013] WASCA 70.
55 In Washer the appellant was convicted of conspiracy to sell or supply 1.96 kg of methylamphetamine. The appellants role was to provide the finance of $55,000. Recorded conversations between the appellant and other conspirators showed that he was taking an active interest in sourcing the drugs. Scales and a grinder containing methylamphetamine were found at the appellant's house. He was sentenced to 7 years' imprisonment and leave to appeal the sentence was refused.
56 In Bahn v the State of Western Australia the appellant pleaded guilty to one count of conspiracy to sell or supply 2 kg of methylamphetamine, one count of offering to sell 10,000 tablets of MDMA and one count of supplying 1 kg of heroin. The appellant and a co-conspirator had agreed to supply the methylamphetamine and ecstasy tablets to an undercover police officer. They were unsuccessful in sourcing the drugs and then made an offer to supply the officer with 1 kg of heroin. A meeting was arranged and the appellants were arrested in possession of the heroin. A total effective sentence of 10 years' imprisonment was imposed.
57 In Neumann, the appellant pleaded guilty to one count of conspiracy to possess an unknown quantity of methylamphetamine with intent to sell or supply and three counts of possessing a total of approximately 1.3 kg of methylamphetamine with intent to sell or supply. The appellant had arranged for the purchase of the drugs in NSW and for their transfer to Perth. He was found to be at high level in the chain of distribution. A total effective sentence of 15 years' imprisonment was not disturbed on appeal.
58 The appellants also refer to Jecks v the State of Western Australia [2007] WASCA 111. In that case the appellant worked as a panel beater and his employers operated an amphetamine distribution network. Over approximately six weeks police intercepted some 4,800 telephone calls to and from the business connected with the sale of methylamphetamine. The sentencing judge found that the business owners were at the highest level of offending, being the suppliers. The appellant had worked as a courier and it was established that he had made approximately 10 deliveries involving in total between 9 g and 10.5 g of methylamphetamine. He was convicted after trial of conspiracy to sell or supply methylamphetamine. A sentence of 4 years imprisonment was imposed and leave to appeal against that sentence was refused.
59 The appellant also referred to a number of other cases involving sentences for substantive offences of possession or sale or supply of prohibited drugs. They were: Mikulic v The State of Western Australia [2011] WASCA 127; Penney v The State of Western Australia [2011] WASCA 71; Ozan v The State of Western Australia [2013] WASCA 27; Kitis v The State of Western Australia [2013] WASCA 34; Kirby v The State of Western Australia [2003] WASCA 164; Basilio v The State of Western Australia [2010] WASCA 202; Koncurat v The State of Western Australia [2010] WASCA 184 and Galbraith v The State of Western Australia [2011] WASCA 70. As the appellants conceded, the utility of these cases is limited as they involved different numbers and types of offences, varying quantities of drugs and appellants with differing roles. However, I have considered the facts of those cases and the sentences imposed to determine whether they assist the appellants argument that the sentences imposed here were manifestly excessive.
60 It is not possible to conclude that the sentences imposed here were inconsistent with those imposed in other cases. Whilst the sentences were high, similar sentences have been imposed for particularly serious examples of offending of this nature.
Conclusion
61 Leave is required for each ground of appeal in appeals of this nature. Leave cannot be granted unless the court is satisfied that the ground has a reasonable prospect of succeeding: s 27(2) Criminal Appeals Act 2004.
62 In Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 consideration was given to the meaning of s 27(2). After referring to the legislative history and decisions regarding comparable provisions in other jurisdictions, this court said:
The ordinary meaning of the words, taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success. However, it is important to bear in mind that, because the test is directed to each ground, it seems that the answer to the question whether leave to appeal is or is not granted will not involve any consideration of whether, if the ground of appeal succeeds, the error in question has led to a substantial miscarriage of justice. That issue is left for determination on the appeal proper [56].
63 In the present case, counsel for the appellant argued that a review of the comparable cases show that the sentences in this case were amongst the highest that had been imposed for offences of conspiracy to possess drugs. He said that in these circumstances an argument that the sentences were manifestly excessive could not be described as 'fanciful or absurd' and leave should be granted.
64 A claim that a sentence is manifestly excessive is a claim that the sentence itself is so clearly inconsistent with the circumstances of the case and prevailing standards as to establish that an error in the exercise of discretion must have occurred. For such a claim to be reasonably arguable any submission needs to take into account all of the relevant factors. It is not be enough for a sentence to be high compared to other sentences for the same offence if the circumstances of the case are particularly serious and plainly justify a high sentence. In the case of an appeal based upon an argument of manifest excess it is not enough that a reasonable argument could be advanced in respect of one factor looked at in isolation.
65 In the present case any argument that the sentences imposed were manifestly excessive has no reasonable prospect of succeeding having regard to the very serious circumstances of the offending. Even if it is arguable that the sentences are high compared to others imposed for offences of this nature they were nonetheless clearly appropriate sentences for offending of this degree of seriousness.
66 When all of the relevant factors are taken into account it is not reasonably arguable that these sentences manifest error in the exercise of sentencing discretion.
67 In my view, leave to appeal should be refused and I would make the following orders in respect of each appeal.
1. Leave to appeal refused.
2. Appeal dismissed.
8
19
1