Seeto v The State of Western Australia
[2014] WASCA 221
•28 NOVEMBER 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SEETO -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 221
CORAM: MARTIN CJ
MAZZA JA
HALL J
HEARD: 22 JULY 2014
DELIVERED : 28 NOVEMBER 2014
FILE NO/S: CACR 240 of 2013
BETWEEN: KEN WAH SEETO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STAVRIANOU DCJ
File No :IND 832 of 2013
Catchwords:
Criminal law - Appeal against sentence - Possession of methylamphetamine - Whether total effective sentence of 15 years infringed totality principle - Whether possible to calculate starting point for sentences and whether the starting point too high
Legislation:
Nil
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr S Vandongen SC
Respondent: Mr J A Scholz
Solicitors:
Appellant: Seamus Rafferty
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abraham v The State of Western Australia [2014] WASCA 151
Basilio v The State of Western Australia [2010] WASCA 202
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Forkin v The State of Western Australia [2013] WASCA 51
Fragomeni v The State of Western Australia [2011] WASCA 67
Galbraith v The State of Western Australia [2011] WASCA 70
Kitis v The State of Western Australia [2013] WASCA 34
Lai v The State of Western Australia [2012] WASCA 181; (2012) 225 A Crim R 218
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mikulic v The State of Western Australia [2011] WASCA 127
Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324
Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154
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
Pham v The State of Western Australia [2011] WASCA 244
Rossi v The State of Western Australia [2014] WASCA 189
Ruvinovski v The State of Western Australia [2013] WASCA 204
The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119
Thomas v The State of Western Australia [2014] WASCA 202
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465
MARTIN CJ: This appeal against sentence should be allowed, and the appellant resentenced in the manner proposed by Justice Hall, for the reasons given by his Honour, with which I agree. It will be appropriate for this court to consider in due course, in the context of an appropriate vehicle, the procedure appropriately adopted at the time of sentence in order to give effect to s 9AA of the Sentencing Act 1995 (WA).
MAZZA JA: I respectfully agree with Hall J that this appeal against sentence must be allowed. I also agree with the orders that he proposes. My reasons for doing so may be briefly stated.
The background to the appeal has been comprehensively stated by his Honour. I will only refer to it insofar as it is necessary to explain these reasons. The appellant's sole complaint is that the total effective sentence infringed the first limb of the totality principle. He does not call into question any of the individual sentences that were imposed.
The appellant's overall criminality was plainly very serious. The appellant was an upper echelon drug dealer. His business plan involved purchasing in Sydney large quantities of high purity methylamphetamine and importing it to Western Australia where it would most likely be cut and sold. No doubt the appellant anticipated large profits from this venture. The offending involved a considerable degree of preparation and planning. His determination and persistence is evident from the number and frequency of the offences and the fact that he committed counts 5 to 8 on bail. The appellant recruited others to assist him in his operation.
Apart from his pleas of guilty, there was no other mitigation. The appellant's antecedents were unfavourable. His prior record of similar offending underlined his moral culpability and gave rise to the need to impose condign punishment to deter him from further offending: Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 477. Of course, general deterrence was a factor of utmost importance in this case.
When all of these factors are weighed, it was inevitable that he would receive a long total sentence of imprisonment. The question nevertheless remains: did the total effective sentence infringe the totality principle?
Hall J has undertaken a careful analysis of the comparable cases. I agree with the conclusions that he draws at [57] ‑ [59] of his reasons.
Of course, each case must be decided upon its own facts and circumstances. Nevertheless, broad consistency is an important
sentencing consideration. Having compared this case with other cases of serious illicit drug offending, it is evident that the total effective sentence was erroneously long, particularly having regard to the appellant's early pleas of guilty. In my opinion, the total effective sentence of 15 years' imprisonment infringed the first limb of the totality principle.
Error having been established, this court's discretion to resentence the appellant has been enlivened. A total effective sentence of 12 years' imprisonment, as proposed by Hall J, properly reflects the appellant's overall criminality, is within the range of comparable cases and pays proper regard to the appellant's pleas of guilty.
In his reasons, Hall J makes a number of observations concerning s 9AA of the Sentencing Act 1995 (WA) and the procedure used in Forkin v The State of Western Australia [2013] WASCA 51 for the purpose of resentencing the offender in that case. In my opinion, as the procedure that was used in Forkin was not an issue for decision in this case and was not the subject of argument, it is unnecessary for me to say anything more about it. The matters raised by his Honour are matters for another day.
HALL J: This is an appeal against sentence.
On 11 November 2013 the appellant was sentenced to a total effective sentence of 15 years' imprisonment for eight offences, the most serious of which related to the possession of significant quantities of methylamphetamine. That sentence incorporated a reduction for totality and a 20% reduction for pleading guilty.
The single ground of appeal is that the aggregate sentence did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances including those referable to the offender personally. That ground relies upon the first limb of the totality principle.
Leave to appeal was granted by Mazza JA on 8 March 2014.
The facts
At 1.20 pm on Saturday 4 August 2012 police officers intercepted the appellant at the Perth domestic airport following his arrival on a flight from Sydney. As a result of searching the appellant and his vehicle the police located items which led them to a storage facility in Redcliffe.
A search warrant under the Misuse of Drugs Act 1981 (WA) was executed on the storage unit. Inside the unit a small toy panda bear was
located which contained a number of packages. The contents of the packages were subsequently analysed and found to contain a total of 21.21 grams of methylamphetamine; 14.5 grams of the drug was at 79% purity, 6.27 grams was at 64% purity and the remainder was of undetermined purity. Other items indicative of drug dealing were also found, including two sets of scales, clip seal bags and a quantity of cutting agent. The possession of the drugs was the subject of count 2 of the indictment.
Also contained in the toy panda bear were nine tablets of MDMA weighing a total of 2.01 grams and another package containing 2.51 grams of cocaine at 10% purity. Possession of the MDMA was the subject of count 3 of the indictment and possession of the cocaine was the subject of count 4.
Police enquiries revealed that the storage unit had been rented by the appellant in the false name of Peter Chew. When searched at Perth airport the appellant had been found in possession of a New South Wales driver's licence in the name of Peter Chew. A subsequent examination of business records and CCTV footage established that the appellant had used the false drivers licence for identification purposes when renting the storage unit. The use of that false identification material to facilitate an offence was the subject of count 1 on the indictment.
The appellant was charged by way of summons with the offences the subject of counts 1 and 2. His first appearance in the Magistrates Court on those charges was 10 October 2012. At that time the proceedings were adjourned to 25 January 2013 and the appellant was bailed on a personal undertaking to appear on that date.
On or about 6 October 2012 the appellant recruited a man named Marcus Chapman to travel to Sydney and bring a quantity of methylamphetamine back to Perth. Chapman flew from Perth to Sydney on Saturday 6 October 2012. On arrival Chapman attended a meeting arranged by the appellant at which time he collected a package and had it strapped to his back. Later the same day Chapman returned to the Sydney airport and attempted to board a plane to Perth. He set off a metal detector as he passed through security and was stopped and searched. As a result the package, containing approximately 431.8 grams of methylamphetamine at 57.4% purity, was located. The appellant's conduct in relation to this transaction was the subject of count 5 of the indictment.
Sometime between 31 July 2012 and 15 November 2012 the appellant formed an agreement with Alex Mills and Penelope Hutchison that one of them would travel to Sydney and bring a quantity of methylamphetamine back to Perth. The amount was to be a pound or 454 grams. On 2 November 2012 Mills took Hutchison to the Perth domestic airport and handed her $19,000 in cash, which had been supplied by the appellant. Hutchison then flew to Sydney and met with the drug supplier. On considering the prospect of carrying a pound of methylamphetamine back to Perth Hutchison decided that it was too risky. She then returned to Perth without the drugs. The conspiracy to possess the drugs was the subject of count 6 of the indictment.
On 16 December 2012 the appellant travelled to Sydney to purchase a quantity of methylamphetamine. His intention was that the drugs would be brought back to Perth by another person. He entered into arrangements to purchase 279 grams of methylamphetamine. On 19 December 2012 the appellant met with Lloyd Jason Keith. He gave Keith the methylamphetamine and a quantity of cash to purchase an airline ticket. The appellant also instructed Keith as to where he was to take the drugs on arrival in Perth. Keith purchased an airline ticket and travelled to Perth on 20 December 2012. He was intercepted by police officers at the Perth domestic airport. He was found to be carrying 279 grams of methylamphetamine at 70% purity. The appellant's conduct relates to count 7 of the indictment.
Later on the morning of 20 December 2012 the appellant arrived in Perth on a flight from Melbourne. He was intercepted by police, searched and found to be in possession of a baggage ticket in the name of Tak Tan. Police located the item of luggage which matched this baggage ticket. When the bag was searched three small clip seal bags were located which contained a total of 1.78 grams of methylamphetamine of undetermined purity. This conduct is the subject of count 8 of the indictment.
The appellant declined to be interviewed. He was charged with the offence the subject of count 7 and remanded in custody. He remained in custody from 21 December 2012 and it was to that date that the sentence was backdated. Charges 3, 4, 5, 6 and 8 were preferred on 27 February 2013 and first mentioned on 14 March 2013.
Personal circumstances
The appellant was aged 38 at the time of sentencing. He was born in Western Australia. He completed Year 11 at high school and then undertook an apprenticeship to become a chef. He has also completed a Diploma in Community Services at TAFE. He has undertaken youth work and worked in aged care and disability services in Broome. He is currently studying for a Diploma in Occupational Health and Safety.
The appellant has one child by a former relationship. His son is now 12 years old. The appellant has intermittent contact with him.
The appellant started using cannabis when he was about 13 or 14 years of age and then progressed to amphetamine and ecstasy when he was about 18 years of age. Thereafter he used drugs on an 'on and off' basis. During 2012, when these offences occurred, he was a very heavy user of drugs.
Whilst the appellant owned a lawn‑mowing franchise, it was conceded that during the time that the offences were committed he was also engaged in an illegal drug dealing business. It was also conceded on the appellant's behalf in the sentencing proceedings that, if not at the very top of the criminal enterprise, he was responsible for making significant decisions. He made the arrangements to bring the drugs to Western Australia and for them to be moved on once they had arrived. It was accepted that the purpose of bringing the drugs to this State was so that they could be on‑sold.
The appellant has a significant criminal record. It commences in 1995 with offences of possessing cannabis. In 1996 he was convicted of possessing amphetamines with intent to sell or supply and sentenced to 2 years' probation. That probation was later breached when he committed offences of burglary in 1998, for which he received terms of imprisonment. He received further terms of imprisonment in 2002 for drug, fraud and weapons offences. In 2003 he was sentenced to 18 months' imprisonment for possession of a prohibited drug with intent to sell or supply and was declared to be a drug trafficker. In 2008 he was sentenced to a total of 2 years' imprisonment for burglary, weapons and drugs offences.
The appellant's pleas of guilty were not fast track pleas but they were made at a relatively early stage. The pleas on all charges were entered at the disclosure committal hearing date on 5 July 2013. The appellant's solicitor had advised the State on 19 June 2013 that those pleas would be entered. The State accepted that the pleas were relatively early and deserving of a significant discount.
Sentencing remarks
The sentencing judge said that it was very clear from the papers that the appellant was engaged in a business of importing methylamphetamine into this State from New South Wales and then arranging for its distribution. He noted that indicia of dealing in the form of electronic scales and clip seal deal bags were located in the storage unit, in the appellant's vehicle and on his person.
His Honour noted that the appellant had been previously imprisoned, including for drug offences. Whilst this history was not an aggravating factor it did show that the present offending was not an aberration.
His Honour took into account that the appellant had pleaded guilty, the timing of the pleas and the benefits to the State which flowed from them. He took into account that very significant resources are required if matters of this nature proceed to trial. He concluded that the appropriate discount for the pleas of guilty was 20%. He said that he had applied that discount to the head sentence and each count on the indictment.
His Honour took into account the weight of the drugs, which in total was 1.1 kgs, and the degree of purity, that ranged between 57.4% and 79%. The high purity indicated that the appellant was close to the source of the drugs or very high up in the chain of distribution. His Honour said that purity and weight were not determinative of the seriousness of the offences, but were two relevant factors to be taken into account. Another factor was the appellant's role. His Honour concluded that the appellant was engaged in a commercial drug distribution business and was at the upper level in the chain of distribution.
In relation to the conspiracy offence (count 6), his Honour took into account the content, duration and reality of the conspiracy. In this case the transport of the drugs that were the subject of the conspiracy only failed to proceed because the courier backed out at the last moment.
His Honour referred to the maximum penalties, the need to ensure that any sentence was commensurate with the seriousness of the offences and the totality principle. He concluded that there were essentially four separate incidents represented by counts 1 to 4, count 5, count 6 and counts 7 and 8. He considered that it was appropriate to impose concurrent penalties for the offences comprising each incident. The effect of this would have been a head sentence of 19 years. He then considered whether any further reduction needed to be made to ensure that the total effective sentence was not disproportionate to the total offending and was not crushing. Having regard to the totality principle, he reduced the sentence he would otherwise have imposed as follows: Firstly, the sentence in relation to count 7 was reduced from 5 years to 3 years. Secondly, the sentences on counts 1 to 4 were ordered to be served concurrently with the other sentences. A total effective sentence of 15 years' imprisonment resulted from the accumulation of the sentences on count 5, 6 and 7. In doing this his Honour said that in his view a total effective sentence of 15 years properly reflected the appellant's overall criminality.
The sentences that were imposed are reflected in the following table:
Count
Offence
Maximum Penalty
Sentence
1
Use of identification material with intent to facilitate the commission of an indictable offence, namely possession of a prohibited drug with intent to sell or supply - s 490(1) of the Criminal Code and s 6(1) of the Misuse of Drugs Act
25 years' imprisonment and/or $100,000 fine
8 months' imprisonment concurrent
2
Possession of a prohibited drug with intent to sell or supply (methylamphetamine 21.21 grams 64% - 79% purity) - s 6(1)(a) Misuse of Drugs Act
25 years' imprisonment and/or $100,000 fine
2 years' imprisonment concurrent
3
Possession of a prohibited drug with intent to sell or supply (MDMA - 9 tablets 2.01 grams) - s 6(1)(a) of the Misuse of Drugs Act
25 years' imprisonment and/or $100,000 fine
8 months' imprisonment concurrent
4
Possession of a prohibited drug with intent to sell or supply (cocaine - 2.51 grams 10% purity)
25 years' imprisonment and/or $100,000 fine
8 months' imprisonment concurrent
5
Possession of a prohibited drug with intent to sell or supply (methylamphetamine - 431.8 grams 57.4% purity) - s 6(1)(a) of the Misuse of Drugs Act
25 years' imprisonment and/or $100,000 fine
6 years' imprisonment (head sentence)
6
Conspiracy to possess a prohibited drug with intent to sell or supply (methylamphetamine - 454 grams) - s 6(1)(a) and s 33(2) of the Misuse of Drugs Act
20 years' imprisonment and/or $75,000 fine
6 years' imprisonment cumulative on count 5
7
Possession of a prohibited drug with intent to sell or supply (methylamphetamine - 279 grams - 70% purity) - s 6(1)(a) of the Misuse of Drugs Act
25 years' imprisonment and/or $100,000 fine
3 years' imprisonment cumulative on count 6
8
Possession of a prohibited drug with intent to sell or supply (methylamphetamine - 1.78 grams undetermined purity) - s 6(1)(a) of the Misuse of Drugs Act
25 years' imprisonment and/or $100,000 fine
6 months' imprisonment concurrent
Total Effective Sentence
15 years' imprisonment
Appellant's submissions
In essence, the appellant's submission is that the total effective sentence of 15 years' imprisonment is too high having regard to the nature of the offences, the quantity and purity of the drugs and the fact that the appellant pleaded guilty. It was accepted that the pleas of guilty were the only mitigating factor of any significance. It was submitted that as serious as the offending was, the sentence imposed was significantly higher than in other comparable (and indeed some more serious) cases. The inconsistency was said to be particularly apparent when account was taken of the guilty pleas.
Whilst there was no dispute that 20% was an appropriate discount, an issue raised at the hearing of the appeal was what starting points the sentencing judge must have had in mind in order to reach the sentences he did. This requires consideration of how the discount was applied in this case. That is a matter to which I will return later in these reasons.
Relevant principles
The totality principle has two limbs. The first limb is relied upon here. It requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences, having regard to all relevant circumstances, including those referable to the appellant personally.
Grounds of appeal that claim that the totality principle has been infringed assert implied error. That is, though no express error is apparent from the reasons of the sentencing judge the result is said to be one that cannot be reconciled with the proper exercise of sentencing discretion. What must be demonstrated in such cases is that the sentence imposed was unreasonable or plainly unjust.
The considerations relevant to sentencing for offences of dealing in dangerous drugs of addiction were referred to in The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 [125]. The major sentencing considerations in such cases are general and personal deterrence. The weight of the drugs is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other relevant factors are the nature and level of the offender's participation in drug dealing and whether the offending was committed solely for commercial gain. The purity of the drug is often regarded as significant. Matters personal to an offender will almost always be a very limited consideration, though they are not completely irrelevant.
When considering whether a sentence is consistent with the standards that are usually observed it is necessary to have regard to comparable cases. However, each case will turn on its own particular facts and can provide only general guidance. Where totality is in issue and the comparison is not between sentences imposed for individual offences there is an increased level of complexity in the comparison exercise. Nevertheless, it is important to take into account comparable cases to ensure broad consistency in sentencing.
Comparable cases
There are, of course, very many cases dealing with sentences imposed for drug offences. Many of them involve multiple offences. Comparisons can only be usefully made here with cases relating to methylamphetamines in similar quantities and where the offender had a similar role to that of the appellant. I have canvassed a number of such cases below. Whether or not the offender in each case pleaded guilty or was found guilty after trial is also noted.
In Atherton the offender was convicted after trial of nine counts of drug trafficking offences involving a total of approximately one kilogram of methylamphetamine (the majority of which was between 8% and 13% purity), one kilogram of MDMA (the majority of which was at 28% purity) and approximately 500 grams of cannabis. The wholesale value of the methylamphetamine was at least $175,000 and the wholesale value of the MDMA was between $84,000 and $120,000. Two of the offences were committed whilst the offender was on bail for the other offences. He was described as 'a commercial dealer, at the higher level, in prohibited drugs' (Buss JA [163]). In that case a State appeal against sentence was allowed and the total effective sentence of 8 years was increased to 11 years' imprisonment.
In Basilio v The State of Western Australia [2010] WASCA 202 the offender was convicted after trial of four drug trafficking offences. The first two offences involved attempts to obtain methylamphetamine. The first attempt related to the purchase of a quantity of methylamphetamine from a seller in Sydney for $187,000. The offender provided the cash to two couriers who flew to Sydney and obtained the drugs. They were intercepted by police on returning to Perth and found in possession of a total of 869 grams of methylamphetamine with a purity of between 55% and 59%. The second attempt related to 10 ounces of methylamphetamine. The seller was arrested by police and found in possession of 139 grams of methylamphetamine of between 34% and 37% purity. Shortly after the second attempt the police executed a search warrant and found the offender in possession of 17.7 grams of methylamphetamine at 39% to 58% purity, 6.86 grams of MDMA and scales, bags and cash indicative of drug dealing. The offender was described as being a 'commercial dealer at a high level' (Newnes JA [25]). A total sentence of 13 years' imprisonment was found to have infringed the totality principle and was reduced to 11 years on appeal.
In Fragomeni v The State of Western Australia [2011] WASCA 67 the offender was convicted after trial of two drug trafficking offences involving 859 grams of methylamphetamine at 14% to 18% purity. The drugs were found at the offender's home along with cash, a gun, scales and other items consistent with commercial dealing. The sentencing judge said that it was difficult to precisely place the offender in the hierarchy of distribution, but it was clear that he formed part of a commercial distribution enterprise. The offences were committed whilst the offender was on parole, he having been previously convicted of murder. A total effective sentence of 10 years' imprisonment was not disturbed on appeal.
In Galbraith v The State of Western Australia [2011] WASCA 70 the offender pleaded guilty and was sentenced to a total effective sentence of 10 years' imprisonment for one drug trafficking and seven other offences which, with one exception, were made concurrent. He also breached a suspended term of imprisonment and was required to serve that sentence. The offender was found in possession of a total of 971 grams of methylamphetamine of between 74% and 78% purity. A search of his home resulted in the finding of a 'tick list', cash, scales, cutting agent and clipseal bags consistent with drug dealing. The drug offence attracted a sentence of 9 years' imprisonment. An appeal against that part of the sentence was dismissed.
In Penney v The State of Western Australia [2011] WASCA 71 the offender pleaded guilty and was sentenced to a total effective sentence of 13 years' imprisonment for possession with intent to sell or supply of 3 kg of cocaine (at 65% purity) and 5.7 kg of methylamphetamine (at 10% to 12% purity) and other offences, including possession of $854,550 in cash reasonably suspected of having been unlawfully obtained. The offender was in a car driven from Sydney in which the drugs, concealed in scuba tanks, were located. A search of the offender's factory unit located items consistent with drug dealing as well as the cash. The sentencing judge found that the offender, whilst not a principal, was more than a 'mere courier'. The offender was a drug user but his primary motivation was commercial gain. An appeal against the total effective sentence was dismissed.
In Mikulic v The State of Western Australia [2011] WASCA 127 the offender pleaded guilty during his trial and was sentenced to a total effective sentence of 12 years' imprisonment for eight offences of possessing a variety of drugs with intent to sell or supply. The total amounts involved were approximately 12 kg of MDMA, 3.1 kg of methylamphetamine and 19.5 grams of cocaine. The methylamphetamine had a purity of between 23% and 26%. The bulk of the drugs were found in a car that had been driven from Sydney by the offender's brother. The offender's claim that he was a mere functionary in the plan of another was not accepted. The sentencing judge found that the offender planned, financed and facilitated the acquisition and transportation of the drugs. This was a large scale illegal commercial enterprise. An appeal against the total sentence was dismissed.
In Lai v The State of Western Australia [2012] WASCA 181; (2012) 225 A Crim R 218 the offender was sentenced to a total effective sentence of 13 years' imprisonment after trial for six drug trafficking offences involving 498.7 grams of methylamphetamine (at 47% to 52% purity) and 167 grams of heroin (at 64% to 66% purity). These quantities related to counts 1 and 2 of the indictment, which involved the procuring of another to bring drugs from Sydney. The other counts involved additional quantities of drugs that the offender attempted to obtain or offered for sale. The exact quantities were not known, but one of the offers was to sell an ounce of methylamphetamine and another was to sell an ounce of heroin. The sentencing judge found that the offender was a high level commercial dealer in different kinds of drugs. He placed her in the 'mid to upper level of the chain of distributors'. A co‑offender who had pleaded guilty and was less culpable (as the courier) had been sentenced to 7 years' imprisonment (Pham v The State of Western Australia [2011] WASCA 244). An appeal against the total sentence of 13 years was dismissed. The sentence was described on appeal as long but was not disturbed.
In Kitis v The State of Western Australia [2013] WASCA 34 the offender entered late pleas of guilty to two drug trafficking offences relating to a total of about five kilograms of methylamphetamine and was sentenced to a total effective sentence of 12 years' imprisonment. The offences involved an attempt to obtain 4.983 kg of methylamphetamine that was concealed in a car that had been driven by another person from Sydney. The drugs had a purity of 53% to 69% and had a value of approximately $2.5 million. The offender took delivery of the car and removed a spare tyre which he believed contained the drugs (it had been substituted by police). A search of the offender's home resulted in the finding of another quantity of methylamphetamine, 207.6 grams at 22% purity, together with cash, a gun, two sets of scales and small quantities of other drugs. An appeal against the total sentence was dismissed.
In Ozan v The State of Western Australia [2013] WASCA 27 (a co‑offender of Kitis) the offender entered late pleas of guilty and was sentenced to a total effective sentence of 14 years' imprisonment for one count of supplying 2.6 kgs of methylamphetamine and one count of attempting to supply 5 kg of methylamphetamine. The offender procured a car in which 2.6 kg of methylamphetamine was transported from Sydney to Perth and then travelled to Perth separately to take delivery of the car. He was then involved in a second similar offence involving 5 kg of methylamphetamine. An appeal against the total sentence was dismissed.
In Ruvinovski v The State of Western Australia [2013] WASCA 204 the offenders were father and son who were convicted of an offence of conspiracy to sell or supply about 1.2 kgs of methylamphetamine. The father, who was convicted after he entered a late plea of guilty, had a significant criminal record including an earlier conviction for a serious drug offence. He received a sentence of 10 years' imprisonment. The son was convicted after trial and also had a criminal record. The offences were committed in the context of other shipments from New South Wales to Western Australia in which both offenders were involved. The son was sentenced to 8 years' imprisonment. Appeals against those sentences were dismissed.
In Neumann v The State of Western Australia [2013] WASCA 70 the offender was convicted after entering pleas of guilty to four drug trafficking offences. The offender was part of a criminal enterprise importing methylamphetamine from Sydney. At the time of his arrest the offender was found in possession of 860.9 grams of methylamphetamine at 46% to 75% purity. A further quantity of 394.6 grams at 22% to 24% purity was later also found, along with a gun, cash and scales indicative of drug dealing. He was charged with conspiracy to possess methylamphetamine with intent to sell or supply and two counts of possessing methylamphetamine with intent to sell or supply. The offender was released on bail and committed a further offence. He was found in possession of 18.2 grams of methylamphetamine at 22% purity, large amounts of cash and other items consistent with drug dealing. A loaded handgun was also located in the offender's car. His guilty pleas were not entered until after the matter was set down for trial. The offender had prior drug convictions and was at a high level in the chain of drug distribution. He made the executive decisions, and although a drug user, carried on a drug dealing business and derived substantial profits. An appeal against an aggregate term of 15 years' imprisonment was dismissed.
In Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324 a total effective sentence of 17 years' imprisonment imposed following a trial was upheld on appeal. The offender was a co‑offender of Kitis and Ozan. He was convicted in respect of the two quantities referred to in the summary of Ozan. The offender was found to be at the top of the chain of distribution in Western Australia and was in charge of a significant commercial drug dealing enterprise. The offences were described as being at the top end of the range of seriousness for offences of their type. An appeal against the sentence was dismissed. The offender was the principle of the drug distribution organisation and organised the purchase of the drugs and transportation from New South Wales. The offences were considered to be close to the top of the range.
The appellant's offending conduct is less serious than that of Kitis, Ozan, Penney, Mikulic and Milenkovski. However, the total sentence imposed on the appellant is greater than that imposed on Ozan, Penney, Mikulic and Kitis, in the last two cases by a significant margin. The appellant's offending is comparable to Basilio and Lai, but attracted a much higher total sentence, 15 years as compared to 11 for Basilio and 13 years for Lai. The difference with the latter two cases is not accounted for by guilty pleas, indeed in both Basilio and Lai the offenders were found guilty after trial, which might have been expected to result in higher sentences than imposed on the appellant, who pleaded guilty. This would tend to indicate, though it is not conclusive in itself, that the total sentence was disproportionate to the offending.
The offending in Neumann has some similarities to that of the appellant and also attracted a total effective sentence of 15 years. In Neumann the total amount of methylamphetamine found in the offender's possession was 1,273 grams. In comparison the appellant was convicted of possessing 731 grams, though he had also attempted to obtain a further 454 grams. Both committed offences whilst on bail and both were principals in significant drug dealing businesses. In Neumann there was the additional aggravating feature of the possession of a loaded handgun. The guilty pleas in Neumann were also entered at a later stage, but the discount was not quantified because the sentences in that case were imposed prior to s 9AA becoming operative. Even if all other things were equal, the early pleas by the appellant would have been expected to produce a lower sentence than that in Neumann. In any event one prior case does not, of itself, establish a standard for sentences customarily imposed.
In undertaking comparisons it is important to take into account whether there were pleas of guilty in other cases, and if so what discount they attracted. In the present case the total sentence prior to making a reduction for totality was 19 years (having regard to the four distinct events that would otherwise have been cumulative). This took into account the 20% discount for pleading guilty. As there were no significant mitigating factors other than the plea of guilty, this means that the aggregate sentence but for the discount and the reduction for totality would have been 23 years and 9 months. For reasons that I will shortly explain this tends to reinforce the view that the total sentence here was too high.
The pleas of guilty
Sentencing judges are generally not required to state a notional starting point for sentence for an offence and then specify any reductions made. The High Court has said that the preferred approach is to take into account all relevant factors and then make a judgment as to the appropriate sentence: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [51] (McHugh J) [39] (Gleeson CJ, Gummow, Hayne and Callinan JJ), Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154. This is often referred to as the intuitive or instinctive synthesis approach. It is, however, subject to any statutory requirements.
Section 9AA of the Sentencing Act 1995 (WA) provides that where a person pleads guilty to a charge the court may reduce the head sentence in order to recognise the benefits to the State, any victim or witnesses, resulting from that plea. Any such reduction cannot exceed 25%. If a reduction is made the court is required to state that fact and the extent of the reduction in open court: s 9AA(5).
In Forkin v The State of Western Australia [2013] WASCA 51 this court gave consideration to what was required to ensure compliance with s 9AA. That consideration arose in the context of an appeal against sentence allowed on an unrelated ground and where it was necessary for the appellant to be resentenced. The parties to the appeal put forward an agreed position, which McLure P (Mazza JA agreeing) said was clearly open and should be accepted for the purposes of resentencing. However, her Honour said that the full ramifications of s 9AA did not need to be determined in that context. Buss JA qualified his agreement with McLure P by expressly excluding any agreement that the agreed position should be accepted.
The agreed position in Forkin was as follows:
(1)where there is to be a reduction under s 9AA(2) for a plea of guilty, s 9AA does not require a sentencing judge to expressly identify the head sentence provided the actual percentage reduction that has been made is otherwise clear from the sentencing judge's reasons;
(2)any discount for a plea of guilty must be to the head sentence (that is, before the head sentence is discounted for any other mitigating factors);
(3)the matters specified in subs (2) ('to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea') exhaustively state the matters which can be taken into account in determining whether a discount is to be given for a plea of guilty and if so, the extent of the discount. Remorse and the other subjective considerations which informed the weight to be given to a plea of guilty under the former sentencing regime (as explained by the majority in Cameron), are no longer relevant considerations in determining what discount, if any, is to be given to a plea of guilty;
(4)however, remorse and the other subjective considerations referred to in (3) may be taken into account under s 9AA(6);
(5)s 9AA does not require the sentencing judge to state the extent of the reduction, individual or cumulative, given for mitigating factors other than the plea of guilty [21].
Whilst s 9AA has arisen for consideration since Forkin the issue referred to in that case has not been canvassed again: See Beins v The State of Western Australia [No 2] [2014] WASCA 54, Abraham v The State of Western Australia [2014] WASCA 151, Rossi v The State of Western Australia [2014] WASCA 189 and Thomas v The State of Western Australia [2014] WASCA 202. In both Beins and Abraham the focus was on the interpretation of s 9AA(2) and the meaning of the phrase 'benefits to the State'. The issue was whether the strength of the prosecution case was a factor that could reduce the discount allowed for a plea of guilty. In Rossi and Thomas the focus was on the phrase 'first reasonable opportunity'.
The procedure referred to in Forkin permits a sentencing judge to refer to the relevant factors in sentencing, state the percentage discount for any plea and then state the final sentence imposed on each offence. The process may appear to be similar to an instinctive synthesis approach except for the nomination of the percentage discount. Yet this appearance cannot be the reality. Section 9AA(2) allows for a discount from the head sentence. The phrase 'head sentence' is defined to mean the sentence that the court would have imposed if the offender had been found guilty after trial and there were no other mitigating factors: s 9AA(1). The percentage discount is not, therefore, a disconnected figure; it relates to the sentence that would have been imposed if no plea of guilty had been entered and no other mitigating factors existed.
The process that s 9AA contemplates the court undertaking is:
1.determination of a head sentence;
2.determination of the amount of the percentage reduction to be given for pleading guilty to recognise the benefits of the plea to the State, the victim and witnesses of that plea;
3.the deduction of 2 from 1;
4.the reduction of the sentence for any other mitigating factors; and
5.statement of the final figure reached and the percentage discount allowed.
The Forkin procedure does not require express statement of the head sentence. Nor is such a statement required by s 9AA. However, this cannot mean that there is no need for a sentencing judge to have a starting point. This then begs the question of whether the purpose of s 9AA is achieved by having a head sentence that is not stated.
The evident objects of s 9AA are to limit the maximum discount that can be given for a plea of guilty and to ensure that those who plead guilty (and others) know what discount they have received. A stated discount that reflects the timing of the plea and the benefits of the plea will serve to encourage other guilty persons to enter their pleas at the earliest possible time. But this assumes that a percentage can be applied to some notional sentence to reach a figure that can be expressed in terms of time. If the percentage reduction cannot be translated into a period of time, it is difficult to see how it can be meaningful either to the offender or other persons who have been charged but not yet entered a plea.
The problem with the Forkin procedure is that the head sentence is not stated so there is no figure to which the offender can apply the percentage to calculate the discount he or she received. Nor can the discount be calculated back from the final sentence imposed. This is because s 9AA requires any discount to be applied before taking into account other mitigating factors. Any reduction allowed for those other factors does not have to be stated. Accordingly, since it is not possible to know what reduction was allowed for those other factors it is usually impossible to reverse‑engineer to the starting point and thereby calculate the discount. A law that seems intended to make the discount more certain and apparent does not achieve that objective if the Forkin procedure is followed. That, of course, may be the fault of the statute and how it is framed. However, the effect is that offenders may know that they have received a discount expressed in percentage terms, but that knowledge has limited utility because it generally cannot translate into a calculable period of time.
There is another risk with the Forkin procedure. It is that a sentencing judge will merely state a percentage discount without in fact going through the procedure required by s 9AA. A sentencing judge might wrongly think that an entirely instinctive synthesis approach with an aside regarding a percentage discount would meet their obligations. There is also the risk that having stated a percentage discount a sentencing judge who does not go through the steps that s 9AA requires will forget to actually apply it, or will make an error in applying it. If those types of errors occur they will not be apparent. If such an error has been made the only recourse for the sentenced person will be to argue that the final sentence for an individual offence is manifestly excessive or that the total sentence infringes the totality principle. The difficulty in mounting such an argument is that it will significantly depend upon comparisons with other cases, some of which will involve guilty pleas that have also been dealt with in the Forkin manner.
The Forkin approach is almost universally adopted by sentencing judges. It was the approach taken by the sentencing judge in this case. In those circumstances it was not open to assert any express error in regard to the discount. The appellant relied on the totality principle, but placed great weight on the fact that the appellant had pleaded guilty. It was not suggested that the Forkin approach was wrong. Accordingly, this case does not provide a vehicle for determining that question. However, there is room to test whether the total sentence imposed might be disproportionate having regard to the pleas of guilty.
In this case, unusually, the only mitigating factor of any significance at all was the guilty pleas. The appellant conceded, and the respondent accepted, that there was nothing in the appellant's personal circumstances that mitigated the offences. Accordingly, there is no intervening unstated discount for other mitigating factors that would make calculating back to a head sentence impossible. When that calculation is done the possible starting points for both the individual sentences and the total effective sentence are seen to be very high by any accounting. I will refer to the figures when I come to consider the merits of the appeal. They suggest that the sentencing judge may not have started with notional head sentences, or that he started with very high notional head sentences, or perhaps did not apply the discount that he said he would. Whilst this would not in itself establish implied error, it serves to further reinforce the argument that the total sentence was too long.
Merits of the appeal
There is no doubt that the appellant's offending was very serious and required a significant sentence of imprisonment. The commission of counts 6, 7 and 8 whilst on bail for counts 1 and 2 was an aggravating factor. The appellant's personal circumstances were not favourable and could not be said to be mitigating. Indeed, as I have already noted, the only mitigating factor of any significance was the pleas of guilty.
The sentencing judge stated that he had allowed a discount of 20% for the pleas of guilty. There is no dispute that that was an appropriate discount. There being no other significant mitigating factors it is possible to determine what the starting points must have been. Initially the total effective sentence was 19 years before the reduction of 2 years for totality and the order that counts 1 to 4 be served concurrently with the other sentences.. It would seem from the transcript that the 19 year sum took into account the 20% discount as applied to the individual sentences.
If the 20% discount is removed the starting figures for the individual sentences are 10 months for counts 1, 3 and 4, 7 years and 6 months for counts 5 and 6, 6 years and 3 months for count 7 (before taking into account the further 2 year reduction for totality) and 7½ months for count 8. Accordingly, the trial judge's initial total effective sentence was 23 years and 9 months (23 years and 9 months less 20% equals 19 years). Even if the discount for totality is ignored, in order to reach a total effective sentence of 15 years' imprisonment the sentencing judge would have had to have had a starting point of 18 years and 9 months. Very large and unlikely numbers are produced whether the calculations of the starting sentence before the discount for the plea are done on the individual sentences or on the total effective sentence.
This serves to confirm that the total sentence imposed in this case was very significantly higher than sentences imposed in comparable cases. This suggests that despite saying that he had accorded a 20% discount on the sentence it is possible that his Honour may not in fact have done so. Whether or not that is what occurred, the total effective sentence imposed here is not merely high, it is inconsistent with standards of sentencing customarily observed in cases of this kind, as is evident from the cases to which I have referred, several of which also included the aggravating factor of offences committed whilst on bail.
In my view, the total effective sentence was disproportionate to the total offending and the ground of appeal has been made out. I would allow the appeal and resentence the appellant in a manner that produces a total effective sentence of 12 years' imprisonment. The most convenient way to now achieve that objective is to reduce the sentences on counts 5 and 6 to 5 years on each and on count 7 to 2 years with the orders of cumulation to remain. Those sentences take into account the reduction of 20% for pleading guilty pursuant to s 9AA. The sentences on the other counts should not be altered.
Orders
I would make the following orders:
1.Appeal allowed.
2.The sentences imposed on the appellant be varied by setting aside the sentences on counts 5, 6 and 7 and substituting sentences of 5 years' imprisonment on each of counts 5 and 6 and a sentence of 2 years on count 7.
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