Sinagra-Brisca v The Queen
[2004] WASCA 68
•7 APRIL 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: SINAGRA-BRISCA -v- THE QUEEN [2004] WASCA 68
CORAM: TEMPLEMAN J
WHEELER J
MCLURE J
HEARD: 4 DECEMBER 2003
DELIVERED : 7 APRIL 2004
FILE NO/S: CCA 123 of 2003
BETWEEN: PAOLO SINAGRA-BRISCA
Applicant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :HEALY DCJ
File Number : IND 1150 of 2003
Catchwords:
Criminal law - Sentence - Possession of MDMA with intent to sell or supply - Possession of methylamphetamine with intent to sell or supply - "Fast track" plea of guilty - Discount - Declaration a "drug trafficker" - Whether mitigating - "One transaction" rule - Concurrency or cumulation of sentence
Legislation:
Misuse of Drugs Act, s 32A
Result:
Application for leave to appeal allowed
Appeal dismissed
Category: B
Representation:
Counsel:
Applicant: Mr D Grace QC & Mr L M Levy
Respondent: Mr R E Cock QC
Solicitors:
Applicant: Laurie Levy & Associates
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bowman v The Queen (1995) 14 WAR 466
Cardile v The Queen [2003] WASCA 72
Johnson v The Queen [2004] HCA 15
Kirby v The Queen [2003] WASCA 164
Ma v The Queen (2001) 125 A Crim R 349
Mada v The Queen [2003] WASCA 1
Pearce v The Queen (1998) 194 CLR 610
R v Faithfull [2004] WASCA 39
R v Rintel (1991) 3 WAR 527
R v Weldon (2002) 136 A Crim R 55
R v White [2002] WASCA 112
Radebe v The Queen (2001) 122 A Crim R 559
Case(s) also cited:
Cameron v The Queen [2002] WASCA 81
Chua v The Queen [2001] WASCA 353
Jarvis v The Queen (1993) 20 WAR 201
Little v The Queen [2001] WASCA 87
Wong v The Queen (2001) 207 CLR 584
TEMPLEMAN J: I have had the advantage of reading in draft the reasons to be published by Wheeler J.
I agree, for the reasons given by Wheeler J that although leave to appeal should be granted, the appeal should be dismissed.
WHEELER J: This is an application for leave to appeal against sentence. The applicant was charged on indictment with four counts. All related to the same date. The offences and relevant facts were as follows.
The Offences and Sentences
Count 1: that on 8 March 2003 at Myaree the applicant had in his possession a prohibited drug (MDMA) with intent to sell or supply. Two other persons went to the applicant's home in Mount Pleasant, the three of them then meeting a female who arranged to supply a quantity of MDMA (ecstasy) tablets. The four offenders then went to a motel in Rockingham in three separate vehicles. A large quantity of ecstasy tablets were purchased. The drugs were placed in the vehicle of one of the applicant's associates and he and the other man followed that vehicle. Police intercepted the vehicle carrying the drugs at the intersection of North Lake Road and Marmion Street. The police attempted to apprehend the applicant but he drove over the median strip and was not apprehended until shortly afterwards (having been involved in an accident with another vehicle). In the vehicle driven by the associate the police found in excess of 10,000 ecstasy tablets, a total of 2,400 grams in weight with a purity of about 27 per cent. Also found in that vehicle was $1675 in cash, which the applicant told the police belonged to him, he having withdrawn it, he said, from a bank account to pay bills. Police executed a search warrant at the applicant's house, locating quantities of drugs in clip‑seal bags in the top drawer of his bedside table, and a little under $8000 in cash and jewellery in a drawer in the same bedroom. If the 10,000 tablets had been sold at $50 per tablet on the street, they would, as the learned sentencing Judge found, have raised approximately half a million dollars. In respect of that offence, his Honour imposed a sentence of 17 years and 6 months imprisonment.
Count 2: that on 8 March 2003 at Como the applicant had in his possession a prohibited drug (methylamphetamine) with intent to sell or supply. Following execution of a search warrant at a unit in Como, police located methylamphetamine in a refrigerator in 11 separate sealed plastic bags. In total, the methylamphetamine weighed about 5.06 kilograms and ranged in purity between 21 and 50 per cent, with the majority of it (4.625 kilograms) of a purity between 46 and 50 per cent. Also located at the
unit was "drug paraphernalia", including electronic scales, unused clip‑seal bags and sugar; this last was capable of being used as a "cutting agent". The unit was rented by the applicant, using a false name, solely for the purpose of storing and preparing the prohibited drugs. The value of the methylamphetamine found in this unit, in its uncut form, was somewhere between $900,000 and $1,000,000. Had it been cut to "street level", its value would have increased to somewhere between $15,000,000 and $20,000,000. In relation to this count, his Honour also imposed a sentence of 17 years and 6 months imprisonment.
Count 3: that on 8 March 2003 at Ardross the applicant had in his possession a prohibited drug (methylamphetamine) with intent to sell or supply. This arose out of the execution of a search warrant at a unit in Ardross, also rented by the applicant under a false name for the purpose of storing and preparing prohibited drugs. In the refrigerator in that unit police located, in empty orange juice containers, 34 clip‑seal bags which contained a total of approximately 800 grams of methylamphetamine. The purity of the drug in these bags ranged from 28 to 70 per cent. The learned sentencing Judge took the view that if that were the only charge facing the applicant, there would have been a "starting sentence" of 9 years, discounted to 7 years for the plea of guilty and other factors.
Count 4: that on 8 March 2003 the applicant had in his possession a prohibited drug (MDMA) with intent to sell or supply. This count also related to the unit at Ardross, and the finding in the same refrigerator in empty orange juice containers of 55 MDMA (ecstasy) tablets weighing about 14 grams and of about 18 per cent purity. In relation to this count, his Honour imposed a sentence of 3 years imprisonment.
His Honour considered questions of concurrency of sentence and found that it was not an occasion where, in principle, sentences for the four offences should be served concurrently. In his Honour's view, the ecstasy in the first charges was separate and distinct from the ecstasy and the methylamphetamine the subject of the other three. There was no evidence before his Honour as to when the applicant came into possession of the various separate quantities of drugs. It was clear that the drugs in the units had been there for some time, as was shown by the storing and packing of them. His Honour said:
"For that reason I can't see why the sentences for counts 2, 3 and 4 should not be served concurrently with each other but that there should be some accumulation with the first charge."
In relation to counts 1 and 2, his Honour ordered that the terms be served concurrently. So far as count 3 was concerned, for reasons of totality, his Honour discounted the term which he had originally indicated of 7 years to one of 3 years imprisonment to be served cumulatively on count 1. The final charge, count 4, also was ordered to be served concurrently. The total effective sentence imposed was therefore one of 20 years and 6 months, dating from the time at which the applicant was taken into custody on 18 July. There was an order for eligibility for parole.
Other Circumstances Relevant to Sentence
In addition to the matters to which I have referred above relating to each particular count, there were a number of other circumstances which were unfavourable to the applicant. It appears that, as a result of a covert police operation and telephone intercepts, the applicant had been identified as a significant drug dealer in a well‑organised syndicate. His Honour accepted that the applicant's role was that of a "significant organiser" for the acquisition and distribution in Western Australia of large quantities of prohibited drugs, including ecstasy and methylamphetamine. It appears that the applicant also made attempts to sell drugs interstate, but was not able to do so because of the relatively cheaper price of drugs in Sydney and Melbourne. The information which had been gathered made it clear that the scale of the applicant's operation was such that he did not wish to deal in anything less than a "pound" of prohibited drugs of whatever nature. His prior drug‑related offending consisted of a charge of possession of amphetamines in 1997 and, much more seriously, District Court charges in 1999 of possession of amphetamines and possession of MDMA, in each case with intent to sell or supply, in respect of which he received concurrent sentences of 3 years imprisonment.
A number of matters were put forward in mitigation. First, it was noted that, by reason of his conviction, the applicant was liable to forfeit a quantity of property. The most significant was a list of five motor vehicles with a total value of approximately $124,000, but also some quantities of cash and jewellery.
There were a number of references put before his Honour which spoke of the applicant's "values" and good upbringing. These, of course, were of extremely limited, if any, weight in light of the circumstances of the offending and the history of previous offences to which I have referred.
There was a report of a clinical psychologist which noted that the applicant had had a steady employment history for many years upon leaving school. It stated that he had a problem with gambling for a number of years and had extensively used different illegal drugs. He had been a user, in particular, of MDMA. He was assessed as being of low average IQ with significant deficits in verbal cognitive skills (this was apparently in part, but not only, because of his drug use). He was assessed as lacking interpersonal skills, and it was suggested that the expense associated with drug use, gambling and debt probably contributed to his decision to engage in drug dealing, although the psychologist noted that he had not seen anything to indicate that the applicant was unaware that his offending was illegal.
Finally, it was noted that the applicant had pleaded guilty on the fast‑track system, although his counsel quite properly conceded that there was, as a result of the extensive police investigation, a very considerable quantity of evidence against him.
There are effectively three matters raised by the grounds of appeal.
The Fast-Track Plea of Guilty
It is submitted that his Honour erred in failing to give sufficient weight to the applicant's fast-track plea of guilty. It appears that the sole matter upon which this ground rests is that it is said that when one considers his Honour's reasons in detail, it appears that he allowed a discount of 20 per cent for both the plea of guilty and all the other mitigating circumstances. It was submitted that that revealed that the discount for the plea of guilty must have been 20 per cent or less, and that authority in this Court demonstrated that a discount of that order was in error. The submission appears to rest upon his Honour's reference, in count 3, to a "starting point" of 9 years reduced to 7 years for the various factors to which he had referred. I calculate that to represent a "discount" a little in excess of 22 per cent for all factors.
It is apparent that this ground can only be made out if the applicant is correct in his submission that a discount in excess of 20 per cent must be given in all cases where there is a fast-track plea of guilty. That proposition is not correct. Authority in this Court generally suggests that the range of appropriate discounts is from 20 to 35 per cent: Radebe v The Queen (2001) 122 A Crim R 559. It is true that it is generally accepted that it is an unusual case in which the discount is not at least 25 per cent: Ma v The Queen (2001) 125 A Crim R 349 at [101]-[103]. However, arguments concerning the precise percentage reduction given in a particular case are unhelpful. The appropriate question to be asked is whether, in all the circumstances, the sentencing Judge has made a proper evaluation of the worth of the plea: Cardile v The Queen [2003] WASCA 72 at [14] per Murray J.
In the present case, his Honour found that the applicant was not motivated by genuine remorse in his plea of guilty, but rather by an acceptance of the inevitable consequences of detection. The facts before his Honour amply justify that finding, and the "discount" apparently given has not been demonstrated to be inappropriate in the circumstances.
Declaration as a "drug trafficker" (s 32A Misuse of Drugs Act 1981)
It was submitted that a significant mitigatory factor, to which inadequate weight was given by his Honour, was the financial consequence that would flow from the mandatory declaration of the applicant as a drug trafficker, pursuant to s 32A of the Misuse of Drugs Act. As the submission was developed, it appeared to be based upon the proposition that in all cases in which, following on from conviction, any significant quantity of property will be lost by an offender, that fact is to be regarded as a substantial mitigating factor. The submission misunderstands the principles which are applied in this Court.
In the context of a different statutory scheme, observations were made by Parker J with whom Murray and Owen JJ agreed, in Bowman v The Queen (1995) 14 WAR 466, concerning the effect of a legislative scheme of forfeiture. At p 474, Parker J considered certain observations in R v Rintel (1991) 3 WAR 527, which drew attention to the need for some "proportionality" between the totality of the sentence, the "final outcome in the event of forfeiture", and the "gravity of the offence". Parker J observed as follows:-
"While the precise formulations quoted above vary, it does not appear that this is intended to reflect any difference of approach to the underlying principle. It is clear that the scheme of the Act is to provide an additional and strong deterrent, in particular one which affects monetary profits from crime, but it would not be appropriate to order forfeiture where the effect of forfeiture would be disproportionate to the gravity of the offence.
In this context, terminology may be misleading. It is usual to speak of the need for a sentence imposed in respect of an offence to be proportionate to the gravity of the offence. What is a proportionate sentence is determined according to the statutory limits fixed for the offence, the particular circumstances of the offence and the offender, and the principles of sentencing. This process will have occurred before an application for forfeiture of property or for an additional pecuniary penalty order is made under the Act, s 6(1). In conventional terms, a proportionate sentence or punishment has already been judicially determined.
Despite this, the clear intention of the legislative scheme is that something more should be considered by way of deterrence. To achieve this, the Act has introduced entirely new concepts, forfeiture of property and a pecuniary penalty order, each of which is necessarily additional to or distinct from a 'proportionate' sentence or punishment in the conventional sentencing sense. Especially if is borne in mind that forfeiture may be ordered in respect of property which is not that of the convicted offender, the significance of these new and additional concepts and their objective becomes even more apparent. Thus, it is too restrictive, even misleading, merely to consider proportionality in the conventional sentencing sense when determining whether forfeiture is appropriate under s 10(1). Each of the passages cited above appear to be seeking to express this idea.
Conventional sentencing concepts are not without their relevance as the factors listed earlier indicate. Nevertheless, for present purposes, proportionality must also take due account of these new concepts and their objective. Giving them full weight, attention must focus ultimately on maintaining an acceptable measure of proportionality between the effect of forfeiture and the gravity of the offence, one, for example, which avoids 'unacceptable hardship' to use an example given in Winand, or which involves such a degree of disproportion as to be quite unreasonable or unjust."
While the statutory scheme is now different again, (the Court having no discretion to refrain from making a declaration under s 32A), the principles enunciated by Parker J have been accepted and applied in Mada v The Queen [2003] WASCA 1 and Kirby v The Queen [2003] WASCA 164. I accept them as the appropriate principles to be applied in a case such as the present. In particular, I draw attention again to the need to give "full weight" to the legislative intention, which is that schemes of forfeiture such as s 32A of the Misuse of Drugs Act are apparently designed to impose an additional deterrent over and above what would normally be considered a "proportionate" sentence. What is desirable for a sentencing court to avoid is such a degree of disproportion between the offending and the totality of the consequences of that offending as may be seen, even in the context of such a legislative scheme, as unjust.
In both Mada and Kirby, it is to be noted that there was before the Court an explanation of the way in which the assets to be forfeited had been obtained, which was accepted by the Court and which was inconsistent with their having been derived from any offending behaviour. In Mada, the offender had no prior convictions and faced the seizure of all his assets, despite the fact that it appeared that they had been built up over a number of years of labour in his own business which was quite unconnected with any offending. Kirby was not a first offender, but it was accepted that he would lose significant non-crime related assets, including an amount which had been "gifted" to him by his father.
One can well see that, in the context of a statutory scheme of this kind, some weight must be given in mitigation to the fact that a person will as a result of conviction lose the fruits of many years of labour which is unconnected with criminal activity, and that it may be appropriate in some cases to give weight to the fact that a person convicted of an offence of this kind will not be able to have the benefit of the sort of assistance which is often given to other members of the community by their families. However, much will depend upon the circumstances of the individual case, and it would be quite wrong to assume, as I think the applicant's argument does, that in every case where any significant quantity of property is lost as a result of the conviction, that fact must be given weight (let alone significant weight) by way of mitigation.
In the present case, his Honour stated that he had "borne in mind" when fixing an appropriate sentence the fact of the declaration as a drug trafficker and its effects. The applicant contends that his Honour gave very little weight to this circumstance. In my view, that contention is correct, but his Honour was right to give it little weight.
It must be remembered, that it is for an offender to put before a sentencing Judge any relevant factors in mitigation. His Honour had before him a list of property which was to be lost by the applicant as a result of his conviction. That was contained on a freezing notice. The freezing notice identified all but a quantity of cash as being forfeited by reason of the conviction, rather than by reason of its being directly derived from or used in the commission of the offences. However, the Crown contended that there was insufficient material before his Honour to lead to the conclusion that the property to be forfeited was neither "crime used" or "crime derived". In particular, it was noted that the freezing notice had been drawn up only three days after the applicant was apprehended, in circumstances where obviously there had not been sufficient time for a full enquiry into the source of his assets (a matter which I observe was within his knowledge, rather than the knowledge of the prosecuting authorities). It was noted that notwithstanding that one of the motor vehicles was identified on that freezing notice as not being "crime used", it had been the vehicle which conveyed the applicant during the course of the offence identified in count 1. Further, the submission was effectively made that the applicant had been, for a very considerable time, engaged in a large scale drug dealing business. In those circumstances, it was not possible to identify any of the property referred to as being unrelated to criminal offences.
In my view, the submissions made to his Honour on behalf of the prosecution in relation to the declaration as a drug trafficker, were persuasive. It was for the applicant, if he wished this matter to be taken into account by way of mitigation, to put before his Honour some credible material which suggested a source of the property other than his drug dealing business. In addition, there was before his Honour no material which suggested what the impact of the loss of that property would be upon the applicant in terms of, for example, the loss of any ability on his eventual release from prison to carry out a legitimate business in which he may have engaged prior to offending (as was apparently the case in Mada for example).
Concurrency/Totality
It is submitted that in principle all of the terms imposed should have been ordered to be served concurrently, by reason of the "one transaction" rule or alternatively (if there be a difference) for reasons of totality.
As it was developed in argument, the proposition in support of the "one transaction" rule was that no matter what sort of drugs were possessed (that is, even if there were a variety of different drugs involved) and no matter whether there were different degrees of purity, different sources of the drugs, and different proposed destinations, whenever a person was found having on one day possession of any quantities of drugs with intent to sell or supply, sentences in respect of each count of possession must be concurrent, because they were all part of the "one business enterprise". That submission cannot be sustained.
The "one transaction" concept is in most cases of limited usefulness, if full weight is given to the principles enunciated by the High Court in Pearce v The Queen (1998) 194 CLR 610 (see R v White [2002] WASCA 112, R v Weldon (2002) 136 A Crim R 55, R v Faithfull [2004] WASCA 39). Rather than being fixed on the notion, itself somewhat artificial, of a "transaction", the Court must be astute to ensure that an offender is not twice punished in respect of conduct common to what are technically distinct offences; Pearce v The Queen at 623 [40] per McHugh, Hayne and Callinan JJ, Johnson v The Queen [2004] HCA 15 at [27] per Gummow, Callinan and Heydon JJ. That will often require reduction of some sentences, or complete or partial concurrency. Equally, where one "transaction", involves complex criminal conduct, distinct aspects of which constitute different offences, the Court must ensure that appropriate punishment is imposed in respect of all of the conduct; Pearce v The Queen at 621-622 [36] – [37]. That will often require totally or partially cumulative sentences.
It may well be appropriate to apply the "one transaction" rule where, for example, it is plain that an offender is in possession of a single quantity of one drug, obtained on one occasion from one source, which simply happens to have been broken up into different parcels (and perhaps even if stored at different locations). There is a degree of artificiality which may arise if distinct offences fall to be dealt with simply as a result of the stage at which a drug dealing transaction, originally conceived as a single enterprise, may have arrived. However, that was not this case.
It is clear that the conduct the subject of count 1, resulted in the applicant's coming into possession for the purpose of sale or supply of a drug on an occasion separate from whatever transactions may have caused him to come into possession of the drugs the subject of the other counts. So far as the other counts were concerned, there were two different types of drugs involved; they were stored at two different locations; and they were of differing purity. There may or may not have been some "overlap" between the offences if all the circumstances had been fully known (cf Johnson v The Queen (supra)). However, in the absence of anything to indicate that they were somehow the subject of one transaction or overlapping transactions (that being a matter peculiarly within the applicant's knowledge, and as to which he appears to have volunteered nothing) it would in my view, have been appropriate to treat them each as relevantly a separate "transaction". His Honour was, if anything, generous in treating counts 2, 3 and 4 as necessarily calling for concurrent terms of imprisonment.
So far as the second aspect of this ground of appeal is concerned – that is, that the term imposed is "crushing" – there is nothing to support it other than the bare assertion. None of the sentences imposed can be criticised individually. When one considers the question of proportionality between the total effective term and the totality of the applicant's offending, I would observe that these were all serious offences, with counts 1 and 2 being particularly serious. I would not regard a total effective term of 20 years and 6 months, with eligibility for parole, to be disproportionate to the applicant's conduct.
Conclusion
It follows from the above reasons that while I would grant leave, I would dismiss the appeal.
MCLURE J: I have had the advantage of reading in draft the reasons for decision of Wheeler J. I agree with those reasons and the proposed orders.
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