Sabau v The State of Western Australia

[2011] WASCA 53

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SABAU -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 53

CORAM:   McLURE P

NEWNES JA
MAZZA J

HEARD:   16 FEBRUARY 2011

DELIVERED          :   11 MARCH 2011

FILE NO/S:   CACR 94 of 2010

BETWEEN:   VASILE SABAU

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :WAGER DCJ

File No  :IND 170 of 2010

Catchwords:

Criminal law - Sentencing - Possession of 85.1 g of heroin with intent to sell or supply - Plea of guilty - Dealing in drugs for commercial gain - Two prior convictions for possession of heroin with intent to sell or supply - Sentence of 6 years' imprisonment - Not manifestly excessive

Legislation:

Nil

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr P B Cassidy

Respondent:     Ms S H Linton

Solicitors:

Appellant:     Thames Legal

Respondent:     Director of Public Prosecutions (WA)

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

Aconi v The Queen [2001] WASCA 211

Borbil v The State of Western Australia [2007] WASCA 24

Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49

Chan v The Queen (1989) 38 A Crim R 337

Dao v The State of Western Australia [2007] WASCA 237

Delovski v The Queen [2002] WASCA 88

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Marchesano v The Queen [2000] WASCA 225

Nguyen v The State of Western Australia [2009] WASCA 81

The State of Western Australia v Atherton [2009] WASCA 148

Tulloh v The Queen [2004] WASCA 169

1. McLURE P:  I agree with Newnes JA.

2. NEWNES JA:  This is an appeal against sentence.  The appellant pleaded guilty in the District Court to two counts of possession of heroin with intent to sell or supply.  He was sentenced to 6 years' imprisonment on the first count and to 1 year's imprisonment on the second count, the latter to be served concurrently with the sentence on the first count.  The appellant appeals against the term of 6 years' imprisonment on the first count, contending that it is manifestly excessive.

3. The application for leave to appeal was filed some 11 weeks out of time, with the result that the appellant requires an extension of time within which to appeal.  That application and the application for leave to appeal were referred to the hearing of the appeal.

Background

Count 1

1. On 5 May 2009, the motor vehicle the appellant was driving was stopped by police in Osborne Park.  The appellant was asked by a police officer if he had anything on him that he would like to declare.  The appellant said that he had drugs in the pocket of his jeans.  A search of the appellant revealed a clip‑seal bag containing three balls wrapped in black tape in a pocket of his jeans.  The appellant told police that the packages contained heroin.  They were subsequently analysed and found to contain 28.6 g of heroin at 24% purity, 28 g at 24% purity and 28.5 g at 25% purity, respectively; a total of 85.1 g.

Count 2

1. The appellant was subsequently conveyed to his home in Joondanna where a search warrant was executed.  The appellant directed officers to a cupboard where 1.3 g of heroin was found.  The appellant told police that he was not a heroin user but intended to give the heroin to some friends.

The plea

1. The appellant entered a fast‑track plea of guilty to two counts of possession of heroin with intent to sell or supply. The appellant also pleaded guilty to three counts of driving without a current motor driver's licence, pursuant to a notice under s 32 of the Sentencing Act 1995 (WA).

Sentencing remarks

1. The sentencing judge found that the appellant was a commercial dealer who had engaged in drug dealing for commercial gain.

2. Her Honour noted that the appellant was 61 years old at the time of sentencing.  He had migrated to Australia from Romania in 1987 and had a total of five children from three marriages.  His current wife was 19 years of age at the time of the offences and was then pregnant with his child, who was born in 2009.  The appellant was in receipt of a disability pension due to injuries suffered in a motor vehicle accident.  The sentencing judge accepted that the appellant had committed the offences because he required money to assist one of his sons with legal fees and in view of the imminent birth of the appellant's child.

3. The sentencing judge observed that the appellant had two previous convictions for dealing in heroin.  In June 2001, he had been convicted after trial of possession of 42 g (in fact, 41.9 g) of heroin with intent to sell or supply and was sentenced to a term of 5 years' imprisonment (equivalent to 3 years and 4 months in post-transitional cases).  In November 2001, he had been convicted after trial of possession of 6 ounces (171 g) of heroin with intent to sell or supply and had been sentenced to a term of 4 years' imprisonment (equivalent to 2 years 8 months in post‑transitional cases), to be served cumulatively with the earlier 5 year term.  (The sentence of 4 years was reduced from a starting point of 5 years by reason of totality considerations.)

4. In determining the appropriate sentence for the current offences, the sentencing judge considered that a deduction of approximately one‑third should be allowed for the appellant's cooperation with police and his plea of guilty. Her Honour sentenced the appellant to a term of 6 years' imprisonment on the first count and a term of 1 year's imprisonment on the second count. The latter was to be served concurrently with the sentence on the first count. The appellant was also fined $300 on each of the counts on the s 32 notice.

Grounds of appeal

1. The appellant relied on one ground of appeal, namely:

   The learned sentencing Judge erred in the exercise of her sentencing discretion by imposing a sentence for Count one that was manifestly excessive in all the circumstances, including the offending conduct viewed as a whole, with insufficient regard to matters personal to the Appellant.

   Particulars of circumstances:

   1.The Appellant's age;

   2.The plea of guilty;

   3.The Appellant's antecedents;

   4.The circumstances of the offence;

   5.The range of sentences customarily imposed for that type of offence.

The disposition of the appeal

1. The relevant principles are well-established.  An appellate court may not interfere with a sentence simply because it would have exercised the sentencing discretion differently from the sentencing judge:  Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. It may intervene only if there is a material error of law or fact, and error may be inferred if the result is unreasonable or unjust: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325.

2. In determining whether or not a sentence is unreasonable or unjust, in the sense that it is manifestly excessive, the sentence must be viewed in the light of the maximum sentence prescribed for the offence; the standards of sentencing customarily observed with respect to the offence; the place which the criminal conduct occupies on the scale of seriousness of crimes of that type; and the personal circumstances of the offender:  Chan v The Queen (1989) 38 A Crim R 337, 342.

3. While in order to achieve consistency in sentencing it is helpful to consider the general range of sentences imposed for similar offences in other cases, caution needs to be exercised in doing so because inevitably there will be differences in the circumstances of the offenders and the offences:  Tulloh v The Queen [2004] WASCA 169; Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 [12].

4. The major consideration in the sentencing process in the case of drug dealing is personal and general deterrence.  Mitigating circumstances that are personal to the applicant have less weight than they might have in other cases:  Marchesano v The Queen [2000] WASCA 225 [41]; Tulloh v The Queen [43], [47]. In determining the seriousness of an offence of this kind, the quantity of the drug involved and its purity are important considerations but other matters, such as the offender's knowledge of the type and amount of the drug, the nature and level of the offender's participation in distribution of the drug and whether the offending was committed solely for commercial gain must also be considered: Borbil v The State of Western Australia [2007] WASCA 24 [52].

5. The appellant's counsel focussed on sentences imposed in other cases for drug dealing.  He relied on the following cases in support of the submission that the sentence on count 1 was manifestly excessive:  Nguyen v The State of Western Australia [2009] WASCA 81; Dao v The State of Western Australia [2007] WASCA 237; Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19; Delovski v The Queen [2002] WASCA 88 and Aconi v The Queen [2001] WASCA 211.

6. I have had regard to those cases, amongst others.  I do not think it is necessary to discuss them.  None of them is directly comparable to the present case and in each of those cases the offender was sentenced for multiple drug offences where the individual sentences may reflect reductions for totality considerations.  It is also significant that, unlike the present case, in none of those cases did the offender have any relevant prior convictions. 

7. I have also had the benefit of the extensive review of the authorities dealing with sentencing in drug dealing cases carried out in The State of Western Australia v Atherton [2009] WASCA 148.

8. In this case, the appellant was in possession of a substantial quantity of heroin.  He was involved in drug dealing solely for commercial gain and there was little to be said by way of mitigation apart from his early plea of guilty and his cooperation with police.  Importantly in relation to the issue of personal deterrence, the offence occurred not long after the appellant had completed cumulative sentences imposed for two prior offences of dealing in heroin.

9. Having regard to the sentences customarily imposed in this jurisdiction for drug dealing, I am not persuaded that the sentence of 6 years' imprisonment was outside a sound discretionary range.  It follows that in my view the appeal must fail.

10. While the application for an extension of time was not opposed by the respondent, as the appellant has not established that the ground of appeal has a reasonable prospect of succeeding, leave to appeal must be refused: Criminal Appeals Act 2004 s 27(1) and (2). It follows that there would be no miscarriage of justice if an extension of time is not granted.

Conclusion

1. I would refuse the application for an extension of time within which to appeal and dismiss the appeal.

2. MAZZA J:  I agree with Newnes JA.