Scott v The State of Western Australia

[2006] WASCA 28

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SCOTT -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 28

CORAM:   WHEELER JA

PULLIN JA
BUSS JA

HEARD:   10 FEBRUARY 2006

DELIVERED          :   23 FEBRUARY 2006

FILE NO/S:   CACR 70 of 2005

BETWEEN:   ANDREA MAY SCOTT

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :WISBEY DCJ

File No  :IND 1207 of 2004

Catchwords:

Criminal law - Sentencing - Conspiracy to possess methylamphetamine - Whether sentence manifestly excessive - Whether delay and rehabilitation taken into account

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(2)(a)

Result:

Appeal allowed
Sentence set aside
New sentence imposed

Category:    D

Representation:

Counsel:

Appellant:     Mr H C Quail

Respondent:     Mr K P Bates & Mr A D Sullivan

Solicitors:

Appellant:     E C De Vries & Co

Respondent:     State Director of Public Prosecutions

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

Bell v The Queen [2001] WASCA 40

Dinsdale v The Queen (2000) 202 CLR 321

House v The King (1936) 55 CLR 499

Lowndes v The Queen (1999) 195 CLR 665

Mill v The Queen (1988) 166 CLR 59

R v Bellissimo (1996) 84 A Crim R 465

R v Todd [1982] 2 NSWLR 517

R v Tulloh (2004) 147 A Crim R 107

Case(s) also cited:

R v Blanco (1999) 106 A Crim R 303

R v Kane [1974] VR 759

R v King (1998) 99 A Crim R 288

R v Lambert (2000) 111 A Crim R 564

R v Latham (2000) 117 A Crim R 74

R v Law [1996] 2 Qd R 63

R v Liddington (1997) 18 WAR 394

R v Schwabegger [1998] 4 VR 649

Wagenaar v The Queen [2000] WASCA 325

1. WHEELER JA:  I have had the advantage of reading a draft of the reasons for decision of Pullin JA.  I am generally in agreement with them, save in relation to the issue of delay.  However, I wish to expand briefly upon some points made by Pullin JA in his reasons for concluding that the learned sentencing Judge was in error. 

2. The very slight nature of the appellant's involvement with the drugs, as compared with that of her co‑offenders, is something which emerges from both the State's sentencing submissions and from his Honour's discussion with the appellant's counsel during the course of sentencing submissions.  The State contended, and it seems to have been accepted by his Honour, that Di Lena was the principal organiser of this large quantity of methylamphetamine.  Washer was a significant financier of the transaction, having paid a substantial sum of money ($55,000) towards the purchase price. 

3. By contrast, the appellant's role was limited to authorising the use of her credit card, and in circumstances where it was clear that she was not, from the outset, an integral part of the plan.  Her counsel submitted, and his Honour seems to have accepted, that it was a last‑minute decision by the co‑offenders to ask the appellant to provide her credit card.  There seems to have been a prior attempt to have some other person use a credit card for the purpose of hiring the vehicle, but there was a problem with the authorisation.  It was only when that problem emerged that Di Lena asked the appellant, with whom he was then living, to authorise the use of her card.  His Honour seems to have accepted that she came into the enterprise at a late stage, and without more than limited thought about it. 

4. Although in his sentencing remarks, his Honour said only that he was satisfied that the appellant had "succumbed to Di Lena's overtures" to participate, during the course of discussion with counsel his Honour seemed to accept that there could have been "some overbearing of her capacity to exercise judgment" by Di Lena, who, it must be remembered, was at that time a member of a motorcycle gang.

5. The State also submitted to his Honour, and there is nothing in the papers before us to contradict the submission, that Di Lena and Washer continued involvement in drug dealing activities even after this transaction and even after being aware that they were the subject of police attention.  Di Lena, however, then took the precaution of ensuring that he would only have a relatively small amount of methylamphetamine on him at any time if he was caught.  That stands in stark contrast to the appellant's position; there is no suggestion that she was a participant in the drug trade either before or after this offence. 

6. Having regard to the appellant's very different culpability, it is clear that principles of proportionality would require that she receive a sentence which was much less than that imposed upon Di Lena and Washer.  They each received terms of 7 years' imprisonment (10½ years before the transitional provisions were applied) which were appropriate, but were perhaps towards the lower end of an appropriate scale, having regard to their culpability.  The 3 years imposed upon the appellant (4½ years before the application of the transitional provisions) would, in my view, have been an appropriate proportion of the sentences imposed on the co‑offenders, were it not for the appellant's very different antecedents.

7. The appellant had good antecedents, not only in the sense of having no prior convictions, but also in the sense of having a lengthy work history, in the course of which her employers and co‑workers had described her as honest, reliable and diligent.  Finally, and importantly, she had taken the step of removing herself from the situation which had led to her involvement in the offence.  Although she did not separate from Di Lena until some two years after the offence in question, she did separate from him and did so, it appears, at least in part because of his continued association with the motorcycle gang. 

8. I would not regard the four years which elapsed between the appellant's apprehension and her conviction as being "delay" in any sense which would be relevant for purposes of mitigation.  There were delays in the trial process which were not unreasonable, having regard to the nature of the offence and of the trial.  Although it may be said that the appellant's life was effectively "on hold" while she was awaiting trial, it must be observed that she had it in her own hands at all times to eliminate that delay by acknowledging her offence and entering a plea of guilty.  The consequences of her failure to acknowledge her offence should not, in my view, be held in her favour by way of mitigation.  However, the period between apprehension and sentence is relevant because it was during that period that the appellant removed herself from Di Lena's influence.  That fact, and the fact that it is not suggested that she (unlike Di Lena) had any continued involvement in drug dealing after this offence, is evidence of rehabilitation, which should be taken into account.

9. Considering the appellant's sentence in isolation from the sentences imposed on Di Lena and Washer, I would have been inclined to the view that, while it was relatively severe having regard to her culpability and her

antecedents, it was perhaps not so severe as to manifest error and to require that it be quashed.  However, during the course of hearing argument in relation to this matter, the issue of proportionality between the term imposed upon Di Lena and Washer and the term imposed upon the appellant, arose.  While it was not a ground of appeal, that issue was ventilated.  Considering all of the matters relevant to the appellant alone, and then placing her sentence against those imposed upon Di Lena and Washer, I would agree with Pullin JA that the sentence is manifestly excessive, and I would substitute the sentence proposed by his Honour.

1. I would add one further comment.  It is with some hesitation that, based upon my view of the circumstances of the offence and the offender, I would quash a sentence imposed by a Judge who had the benefit of hearing at trial detailed evidence about the circumstances of the offence, and of forming a view about those circumstances.  In the course of his sentencing remarks, his Honour expressly noted that he was not dealing with the facts of the offence in "exquisite detail" and that they were identified in the transcript.  Neither the appellant nor the respondent, however, invited us to consider the transcript or the exhibits.  It is not, of course, possible for this Court to avoid the task of evaluating the sentence imposed, even after trial, upon the basis that it has material which was less adequate than that available to the trial Judge.  In the circumstances, I have therefore found it necessary to assume that the materials provided by the appellant are the only materials relevant to sentence.  I have assumed that, if there were available material to contradict the extremely favourable impression of the appellant which is created by those materials, the respondent would have made it available to us.

2. PULLIN JA:  This is an appeal against a 3 year term of imprisonment imposed on the appellant by Wisbey DCJ on 14 April 2005.

3. The appellant had been earlier convicted of an offence, particulars of which were that between 18 May and 2 June 2000 in Western Australia, she and Raymond James Washer and John Di Lena conspired together to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply to another, contrary to s 6(1)(a) and s 33(2)(a) of the Misuse of Drugs Act 1981 (WA).

4. The facts found by the sentencing Judge were as follows.  The appellant was in a de facto relationship with Di Lena.  Di Lena and the other co‑conspirator arranged for the purchase of about 2 kilograms of methylamphetamine to be supplied by a source in Brisbane. 

1. The two male conspirators arranged for a courier to be despatched to Brisbane to collect the substance and bring it to Western Australia.  The courier flew to Brisbane, where it then became necessary for him to hire a car to return to Western Australia with the drugs, but he did not have any credit facility to enable him to do so.  It was then that the appellant because involved.  She  provided the required facility by contacting Hertz Rent-a-Car and providing her credit card details to enable the courier to hire the vehicle.  This assistance was provided by the appellant with the knowledge of the purpose for which the car was required, that is, to enable the drug to be transported to Western Australia.

2. The appellant was not involved in the initial discussion when the two male co‑conspirators arranged to acquire the drug.  She was not involved in the planning or setting‑up of the transaction in a way other than as I have described.  There was no evidence that she would have participated in the fruits of the venture or the dissemination of the drug if it had arrived in Western Australia.

3. The sentencing Judge accepted that the appellant succumbed to Di Lena's overtures to participate as she did.  Not surprisingly, the sentencing Judge said that the appellant's culpability was less than the other conspirators.

4. The appellant was 31 years old at the time she was sentenced.  She had no previous record and the references in her favour were in positive terms.  They reveal that after she left high school she went straight into the workforce and worked in various roles including as a section manager in a supermarket.  The building products company which employed her until she went into custody said that it was willing to hold her position open for her for a reasonable period of time past the sentencing date.  Her parents and sister explained that when the appellant met Di Lena he was not, as he later became, a member of a motorcycle gang.  The reference from the appellant's parents also reveals that Mr Di Lena and the appellant "went their separate ways" about two years before she was sentenced, due largely to his continued involvement with the motorcycle gang. 

5. The sentencing Judge noted however, that matters personal have very "limited truncating effect in matters of this nature".  His Honour noted that this did not mean that personal matters were not to be taken into account.  His Honour concluded that because the appellant denied that she participated, that this meant that there was no remorse for her offence and that immediate imprisonment was the only appropriate disposition which matched the seriousness of the offence.

6. The sentencing Judge then said that he would have imposed a sentence of 4½ years' imprisonment, but he reduced that to a term of 3 years as required by the present sentencing legislation.  The appellant was made eligible for parole and the sentence was to commence on 23 March 2005.

7. The appellant appeals on the grounds that:

   "1.The learned sentencing judge erred in law by imposing a sentence upon the appellant that is manifestly excessive in all the circumstances.

   2.The learned sentencing judge erred in law by failing to take into account the delay that had occurred between the time when the appellant was arrested until when she was sentenced."

Ground 1

1. The present offence is serious, as demonstrated by the maximum penalty of 20 years' imprisonment and a fine.  Methylamphetamine is ranked amongst one of the most serious illicit drugs.  The primary sentencing principles are general and personal deterrence, in relation to which matters personal to the appellant carry less significance: R v Bellissimo (1996) 84 A Crim R 465. The learned sentencing Judge took these factors into account.

2. The principles according to which an appellate court may interfere with a discretionary judgment by a sentencing Judge are well‑established.  The role of this Court is limited.  It is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing Judge: Lowndes v The Queen (1999) 195 CLR 665. However, it is entitled to intervene if the sentence was manifestly excessive (from which error may be inferred): Dinsdale v The Queen (2000) 202 CLR 321 at 324 ‑ 325.

3. The appellant alleges first that the sentence was manifestly excessive because the wrong type of sentence was imposed.  The appellant contends that express error was made by the sentencing Judge.  The error is said to be that the sentencing Judge failed to properly consider imposing a suspended sentence.  In my opinion that submission cannot be sustained.  In the course of his sentencing remarks, the learned sentencing Judge said:

   "The courts hear on a daily basis of the great harm and cost to the community of this type of criminal activity.  The law also directs that I am not to impose a term of immediate imprisonment unless the seriousness of the offending behaviour is such that imprisonment is an imperative.  It is important to say immediately that in my view, imprisonment to be immediately served is the only appropriate disposition which matches the seriousness of this offending behaviour and that much has been made clear by appeal courts on many occasions."

4. The use of the words "appropriate" and "immediate" where they appear in that passage indicates that his Honour did have in mind a range of possible sentences and settled upon immediate imprisonment as the appropriate sentence.  Furthermore, an examination of the transcript shows that counsel had made submissions that there should be a suspended sentence, so his Honour's reference to the "appropriate" disposition does indicate that his Honour considered those submissions, but decided on immediate imprisonment.  I therefore consider that there was no express error of the kind contended for by the appellant.

5. However, the argument is also open on this ground that the sentence of immediate imprisonment actually imposed was manifestly excessive.  It may not be apparent how a primary Judge has reached the sentence arrived at but if, upon the facts, it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may  not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has occurred: House v The King (1936) 55 CLR 499 at 505.

6. In my opinion, this is a case where the sentence imposed was manifestly excessive.  The fact that the involvement of the appellant was so slight, that her involvement was procured by her partner, that she had no previous record, that her work experience was so impressive, that there was no subsequent involvement with drugs, that she had separated from Di Lena, that the other two offenders only received 7 year sentences and the matters mentioned in relation to ground 2 in combination, in my opinion, all overwhelmingly point to a much lower sentence than that imposed by the learned trial Judge.  Error in the sentence ordered may therefore be inferred because it is, in my opinion, manifestly excessive.

7. I would uphold ground 1.

Ground 2

1. Ground 2 complains that the sentencing Judge failed to take into account the delay that occurred between the time when the appellant was arrested until when she was sentenced.  The history of the matter is as follows.  The offence was committed between May and June 2000.  The police monitored telephone conversations between the appellant and Di Lena between June and September.  On 21 September 2000 the rented house occupied by Di Lena and the appellant was raided by the police and Di Lena was arrested.  On 22 March 2001 the police searched the appellant's premises and the appellant's credit card was seized.  She was charged on that day with the offence.  The trial did not take place until March 2005.  I do not know what happened in the Magistrates Court, but the appellant was indicted on 10 September 2002, 18 months after her arrest.  She was indicted with others.  There were then hearings to determine whether there should be severance of the indictment and it was not until 30 April 2004 that a new indictment was presented against the appellant, Di Lena and their co‑conspirator.  There were directions hearings in December 2004 and February 2005.  The period between arrest and trial was therefore nearly 4 years.  The appellant was 26 years old when the offence was committed.  She was 31 when she was sentenced.  It has not been suggested that any of the delay was caused by the appellant.  The sentencing Judge made no reference to delay in his reasons for sentence.  It is true that no submission was made to his Honour that the delay was a relevant mitigating factor.  However, the history of the matter was evident from the file, from the evidence which emerged at trial and from the submissions made by counsel for the co‑conspirators. 

2. Marked delay between the apprehension of an offender and the trial may be a mitigating factor.  In Mill v The Queen (1988) 166 CLR 59 at 64, the High Court approved the observations of Street CJ in  R v Todd [1982] 2 NSWLR 517 that:

   "... where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to … the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence … and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach -- passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."

3. What is also of particular relevance is evidence of rehabilitation accomplished during the period of delay.  In Bell v The Queen [2001] WASCA 40, Anderson J referred to the cases concerning the relevance of delay in relation to sentence. He then said at [8]:

   "8      …I think it reasonably clearly appears from the authorities referred to that in the general run of cases, delay will attract a significant discount only where the sentencing court concludes that there has been real progress towards rehabilitation as such or where other favourable factors have positively emerged in the time between the offences and the passing of sentence."

1. During the four year period between arrest and conviction, the appellant ended her relationship with Di Lena.  Before his arrest he was involved in drug dealing while the appellant lived with him.  She could not have failed to notice this.  It should have been obvious to her that if she continued to live with him she risked being caught up in the commission of a drug offence and that is what happened.  The fact that she ended the relationship with Di Lena has eliminated that risk.  This, and the lack of any further involvement with drugs, are points of considerable significance and show the kind of favourable factor which Anderson J referred to in general terms in Bell (supra). 

2. In my opinion, the failure of the sentencing Judge to mention the delay, or the fact that her relationship with Di Lena had ended, means that material considerations were not taken into account.  As a result I would uphold ground 2.

Resentencing

1. It is therefore necessary to resentence.  In my opinion, it would not be appropriate to impose a suspended sentence.  Although the appellant participated in the offence in a minor way, she knew she was participating in a drug transaction and that it involved a substantial quantity of drugs.  A prison sentence was warranted.  However, the long delay in bringing

the case to its conclusion, the appellant's rehabilitation, other personal factors (which are less important) and her very limited involvement in the conspiracy means, in my opinion, that a sentence of 3 years under the old sentencing legislation  would have been appropriate.  Under the transitional provisions this should be reduced to 2 years' imprisonment which should commence to run from 23 March 2005.  I acknowledge that this may appear at first to be a light sentence.  R v Tulloh (2004) 147 A Crim R 107 shows the substantial sentences usually imposed for drug offences involving methylamphetamine. However, this is an exceptional case. The appellant's involvement was exceptionally brief and of a minor kind. The appellant should be made eligible for parole.

1. BUSS JA:  I have read drafts of the reasons to be published by Wheeler JA and Pullin JA.  I agree with Wheeler JA.