Sabri v The State of Western Australia

[2012] WASCA 71

SABRI -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 71

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASCA 71
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:200/2011	Heard:	9 MARCH 2012
Coram:	McLURE P MAZZA JA	Delivered:	28/03/12
No of pages:	9	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	D
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Parties:	FAWAZ SAMIR SABRI THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Application for leave to appeal against sentence Possession of methylamphetamine with intent to sell or supply Whether a finding of 'circumstances of aggravation' open Whether sentence breached both limbs of the totality principle
Legislation:	Misuse of Drugs Act 1981 (WA), s 6(1)(a) Criminal Appeals Act 2004 (wA), s 27(1), s 27(2), s 27(3)
Case References:	Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 Colangelo v The State of Western Australia [2004] WASCA 294 Dann v The State of Western Australia [2006] WASCA 254 Dixon v The State of Western Australia [2006] WASCA 255 Nelis v The Queen [2000] WASCA 194 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 Reid v The State of Western Australia [2012] WASCA 23 Roffey v The State of Western Australia [2007] WASCA 246 Wilson v The State of Western Australia [2010] WASCA 82 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SABRI -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 71 CORAM : McLURE P

MAZZA JA

HEARD : 9 MARCH 2012 DELIVERED : 28 MARCH 2012 FILE NO/S : CACR 200 of 2011 BETWEEN : FAWAZ SAMIR SABRI

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : O'NEAL DCJ

File No : IND 942 of 2011

Catchwords:

Criminal law - Application for leave to appeal against sentence - Possession of methylamphetamine with intent to sell or supply - Whether a finding of 'circumstances of aggravation' open - Whether sentence breached both limbs of the totality principle

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Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Criminal Appeals Act 2004 (wA), s 27(1), s 27(2), s 27(3)

Result:

Appeal dismissed

Category: D

Representation:

Counsel:

Appellant : Ms A S Rogers
Respondent : No appearance

Solicitors:

Appellant : Andrew Maughan & Associates
Respondent : Director of Public Prosecutions (WA)

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

Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152
Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49
Colangelo v The State of Western Australia [2004] WASCA 294
Dann v The State of Western Australia [2006] WASCA 254
Dixon v The State of Western Australia [2006] WASCA 255
Nelis v The Queen [2000] WASCA 194
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Reid v The State of Western Australia [2012] WASCA 23
Roffey v The State of Western Australia [2007] WASCA 246
Wilson v The State of Western Australia [2010] WASCA 82
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584


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1 McLURE P: I agree with Mazza JA.

2 MAZZA JA: This is an application for leave to appeal against sentence. The appellant was charged on indictment with one count of possession of methylamphetamine with intent to sell or supply to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). This offence carries a maximum penalty of a fine of $100,000 or 25 years' imprisonment, or both.

3 On 23 November 2011, the first scheduled day of his trial, the appellant pleaded guilty as charged. Later that day, O'Neal DCJ sentenced him to 4 years' immediate imprisonment with eligibility for parole. His Honour ordered that the sentence be served cumulatively upon a sentence of 2 years and 6 months' imprisonment imposed by Stavrianou DCJ on 14 January 2011 for an earlier offence of possession of methylamphetamine with intent to sell or supply to another the appellant had committed.

4 The appellant seeks leave to appeal against the sentence imposed by O'Neal DCJ on two grounds. Ground 1 alleges that his Honour made an error in law by taking into account 'circumstances of aggravation' that were not open, having regard to the sentencing submissions of the State. Ground 2 alleges that his Honour breached both limbs of the totality principle by imposing a term of imprisonment that was wholly cumulative on the sentence he was already serving.

5 Leave to appeal is required for each ground of appeal. Leave cannot be granted unless the ground has a reasonable prospect of succeeding. Unless leave to appeal is given on at least one ground of appeal, the appeal is to be taken to have been dismissed: s 27(1), (2) and (3) of the Criminal Appeals Act 2004 (WA).

6 The relevant principles upon which an appeal against sentence is decided are well known and are set out in Wilson v The State of Western Australia [2010] WASCA 82 [2]. There is no need to repeat them here.

Facts of the earlier offence

7 On 17 February 2010, a vehicle being driven by the appellant was stopped by police. The appellant was seen, as he got out of the vehicle, to drop a clipseal bag under the car. The contents of the bag were later analysed and found to contain 16.6 g of 53% pure methylamphetamine.

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Police also found, in the vehicle's ashtray, methylamphetamine weighing 4.96 g of an unknown purity and, underneath the driver's seat, a semi-automatic handgun: ts 24, 25, 14/1/2011.

Facts of the offending the subject of the appeal

8 On 16 August 2010, while the appellant was on bail for the earlier offence, the police followed him as he was driving a hire car. The appellant was observed to throw a bag out of a car window. The bag was retrieved and later found to contain 139.81 g of methylamphetamine with a purity which varied between 17% and 45%: ts 39, 23/11/2011.

9 The appellant was interviewed by the police. He said that he had been given the drugs at an address in Beechboro and had been told to deliver them to a place behind a supermarket in Osborne Park. He said that he did this because of threats that had been made to him by the person who gave him the drug: ts 39, 23/11/2011.

The appellant's antecedents

10 At the time he was sentenced, the appellant was 24 years of age and single. He and his family fled from Iraq and eventually came to Australia as refugees. The appellant had a record of employment in the food industry and a family business. He had a lengthy criminal history, comprising of convictions for assaulting a public officer, fraud, assault, disorderly conduct and many traffic offences. Apart from the conviction before Stravrianou DCJ, he had no prior convictions for drug offences.

The sentencing proceedings before O'Neal DCJ

11 In mitigation, defence counsel told his Honour that prior to his arrest in February 2010, the appellant had accumulated a debt to his dealer for drugs he had purchased on credit. Defence counsel said that the appellant had been held responsible by that dealer for the loss of the drugs seized on 17 February 2010. It was asserted that, as a consequence of these things, the appellant owed the dealer between $20,000 and $30,000. Defence counsel went on to explain that at some time after February 2010 the appellant and his family had been intimidated by some men involved in the drug trade and that he had been shot in his left upper thigh by these people. Neither the appellant nor members of his family made any complaints to the police: ts 20 - 22, 23/11/2011.

12 Defence counsel further asserted that, on 16 August 2010, the appellant was abducted by three men from a restaurant in the city and taken to premises in Beechboro. There the drug dealer to whom he owed

(Page 5)

money put a gun to his head and told him that if he agreed to courier drugs to a supermarket in Osborne Park, the debt would be forgiven: ts 20 - 21, 23/11/2011. Defence counsel submitted to his Honour that because of the threats, out of fear for himself and his family, he did what was demanded of him: ts 22, 23/11/2011.

13 The prosecutor accepted that the appellant was acting as a courier: ts 18: 23/11/2011. He told O'Neal DCJ that the State was not a position to 'prove beyond reasonable doubt that [the appellant] was not threatened, subject to threats even short of duress': ts 13, 23/11/2011.

14 His Honour immediately observed that whether the appellant had been threatened was a matter for the appellant to establish on the balance of probabilities. The prosecutor, notwithstanding his earlier statement, agreed with this observation: ts 13, 23/11/2011.

15 During the plea in mitigation, his Honour queried aspects of the appellant's account of events, particularly whether he acted because of the threats. His Honour told defence counsel that he was having difficulty accepting, on the balance of probabilities, that the sole reason for the appellant's offending was the threats: ts 33, 23/11/2011. Defence counsel sought and was granted an adjournment to take instructions from the appellant to see if he wished to call evidence in support of his case that he acted because of the threats. After that adjournment, defence counsel advised his Honour that the appellant did not wish to call evidence: ts 36, 23/11/2011.

His Honour's sentencing remarks

16 His Honour was not satisfied on the balance of probabilities that the reason for the appellant's offending was the threats which had allegedly been made to him: ts 40. Among the reasons given by his Honour for reaching this conclusion were contradictions in the appellant's video record of interview with police and the inherent implausibility of the appellant's account of events: ts 40 - 41, 23/11/2011.

17 His Honour sentenced the appellant on the basis that he acted as a courier and that his motivation for doing so was financial. His Honour found that the appellant performed 'the important function of transporting [a] substantial quantity of drugs as part of the commercial chain of distribution': ts 45, 23/11/2011.

18 His Honour said that the most significant mitigating factor was the appellant's plea of guilty: ts 44, 23/11/2011. His Honour found that the

(Page 6)

plea was not born out of remorse or contrition. He gave some limited weight to the appellant's age and family support, but otherwise said there was little in the appellant's antecedents that could be regarded as mitigatory: ts 45, 23/11/2011.

19 His Honour expressly referred to the totality principle. He said that, but for this principle, he would have sentenced the appellant to 5 years' imprisonment: ts 46, 23/11/2011.

Analysis of ground 1

20 Counsel submitted that his Honour erred by finding that the plaintiff's motivation for committing the offence was financial and not as a reaction to threats of harm made to him. According to the appellant, his Honour was bound, as a matter of law, to accept the submission that the appellant committed the offence because of threats. This is because the State had conceded that it was not in a position to prove the contrary beyond reasonable doubt.

21 I will, for the sake of argument assume in the appellant's favour, that if he was acting as a consequence of the threats, there would be a reduction in his criminality. However, this assumption is questionable where, as is apparent here, an offender has willingly involved him or herself in the drug trade, a trade in which threats of the type alleged are an occupational hazard.

22 In R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, the High Court set out the law with respect to fact-finding in sentencing proceedings. In their joint judgment, Gleeson CJ, Gaudron, Hayne and Callinan JJ expressly rejected the contention, central to the appellant's argument in this case, that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must nevertheless sentence the offender on a basis that accepts the accuracy of that matter unless the prosecution proves the contrary beyond reasonable doubt: R v Olbrich [24].

23 Their Honours held that where an assertion made by counsel in mitigation is contested by the prosecutor, or is not accepted by the sentencing judge, it will be necessary for the offender to call evidence and prove it on the balance of probabilities: R v Olbrich [25], [26].

24 In this case, the appellant submitted to the sentencing judge in mitigation that he committed the offence as a consequence of being threatened. His Honour made it clear to defence counsel that he was not prepared to accept that submission on the balance of probabilities.

(Page 7)

His Honour gave the appellant the opportunity, before passing sentence, to call evidence to prove this point on the balance of probabilities. However, the appellant declined to do so. His Honour concluded that the appellant had not discharged the onus that was on him to prove the mitigating factor. His Honour's approach to the factual assertions made on behalf of the appellant was in accordance with the legal principles stated in R v Olbrich. He did not err as asserted.

25 For these reasons, ground 1 has no reasonable prospect of succeeding.

Analysis of ground 2

26 The totality principle was succinctly described in Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26].

The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.

The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).

The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).

27 The principle applies where an offender is serving or is liable to serve a sentence that has already been imposed.

28 The appellant's submissions assume that his Honour erred by not accepting that the appellant committed the offence under threats and that the appellant was remorseful, determined to rehabilitate himself and had generally good antecedents. None of these assumptions are valid. For

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reasons I have already given, his Honour did not err as alleged and his Honour made findings in his sentencing remarks which contradict the other matters asserted by the appellant.

29 The general sentencing principles with respect to those who deal in dangerous illicit drugs such as methylamphetamine are well known. The primary sentencing objective is deterrence, with the aim of preventing the distribution of these substances into the community. Because of the emphasis given to deterrence, matters personal to the offender carry less weight. Although the weight and purity of the substance in question are not the chief factors to be taken into account, they are nevertheless of importance because, among other things, they directly bear upon the harm or potential harm that can be caused by the offending to the community. Other important matters to be considered are the nature and level of the offender's participation in drug dealing and whether the offending was for commercial gain: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [67] - [70]; and Reid v The State of Western Australia [2012] WASCA 23 [46].

30 The appellant was involved in drug dealing predominantly for commercial purposes. The earlier drug offence dealt with by Stavrianou DCJ involved a reasonably substantial quantity of methylamphetamine of a high purity. The offence which is the subject of this appeal involved a substantially larger quantity of drugs which had a purity varying from just above to significantly above street purity. By acting as a courier, the appellant knowingly and willingly played an important part in the commercial distribution of the drug into the community. The appellant's offending was aggravated by the fact that he did so on bail.

31 I have reviewed the cases cited by the appellant's counsel in her written submissions being Nelis v The Queen [2000] WASCA 194; Colangelo v The State of Western Australia [2004] WASCA 294; Dann v The State of Western Australia [2006] WASCA 254; Dixon v The State of Western Australia [2006] WASCA 255; Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152; and Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49. I observe that all of these cases involved quantities of methylamphetamine less than the quantity involved here and, in some cases, considerably less.

32 His Honour expressly referred to the totality principle and reduced the sentence he would otherwise have imposed because of it.

(Page 9)

33 Having regard to all of the circumstances of the case, including those referable to the offender personally, the total effective sentence which the appellant must serve bears a proper relationship to the appellant's overall criminality and does not offend the first limb of the totality principle.

34 With respect to the second limb of the totality principle, the sentence is not crushing. The appellant will be in his late twenties or thereabouts when he is released and will therefore have ample opportunity to live a useful life thereafter.

35 For these reasons, ground 2 has no reasonable prospects of succeeding.

Conclusion

36 Neither of the proposed grounds of appeal have reasonable prospects of succeeding. Accordingly, the appeal must be dismissed.

Orders

1. Leave to appeal is refused.

2. The appeal is dismissed.