Smith v The Queen - [2000] WASCA 243

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: SMITH -v- THE QUEEN [2000] WASCA 243

CORAM: KENNEDY ACJ
MURRAY J
PARKER J

HEARD: 6 JUNE 2000

DELIVERED : 31 AUGUST 2000

FILE NO/S: CCA 48 of 2000

BETWEEN: RALPH SMITH
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Aggregate term of 6 years imprisonment imposed for two offences of possession of heroin with intent and three offences of supplying heroin to another - Whether sentences making up the aggregate manifestly excessive - Whether due allowance made for time spent in custody - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed
Sentences quashed and restructured sentences totalling 6 years' imprisonment imposed

Representation:

Counsel:

Applicant: Mr B R Jackson
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Pryles & Defteros
Respondent: State Director of Public Prosecutions

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

Jarvis v The Queen (1993) 20 WAR 201
Pearce v The Queen (1998) 194 CLR 610
R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998
R v Leucus (1995) 78 A Crim R 40
Ratcliff v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998
Verschuren v The Queen (1995) 17 WAR 467

Case(s) also cited:

Caritativo v The Queen, unreported; CCA SCt of WA; Library No 970033; 10 February 1997
Donatelli v The Queen, unreported; CCA SCt of WA; Library No 980505; 3 September 1998
Ford v The Queen, unreported; CCA SCt of WA; Library No 980450; 11 August 1998
Hayes v R [1981] WAR 252
Holland v The Queen [1999] WASCA 43
Korculanic v The Queen, unreported; CCA SCt of WA; Library No 980437; 5 August 1998
Lowndes v The Queen (1999) 195 CLR 665
Miles v The Queen (1997) 17 WAR 518
Quach v The Queen [1999] WASCA 210
R v Gibson, unreported; CCA SCt of WA; Library No 980308; 5 June 1998
R v Ruich [2000] WASCA 84
R v Wallace (1993) 65 A Crim R 362
Sice v The Queen, unreported; CCA SCt of WA; Library No 940134; 11 March 1994
Simion v The Queen, unreported; CCA SCt of WA; Library No 970738; 23 December 1997
Troy v The Queen, unreported; CCA SCt of WA; Library No 980068; 13 February 1998
Veen v The Queen (No 2) (1988) 164 CLR 465

KENNEDY ACJ: In Pearce v The Queen (1998) 194 CLR 610, McHugh, Hayne and Callinan JJ, in the High Court, said at 623 ‑ 624:
"To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality [Mill v The Queen (1988) 166 CLR 59]."
It is necessary to repeat once again the necessity for observing the foregoing direction. In this case, the learned sentencing Judge failed to do so, and generally for the detailed reasons given by Murray J, I agree that the sentences imposed upon the applicant should be quashed. It now falls to this Court to pass such other sentences which may lawfully be passed for the offences of which the applicant stands convicted in substitution therefor as the Court thinks ought to have been passed - Criminal Code, s 689(3).
In relation to the re‑sentencing, for the reasons which his Honour gives, I am in agreement with the orders proposed by Parker J.
MURRAY J: On 2 February 2000 the applicant was presented in the District Court on two indictments containing five offences. He pleaded guilty to all of them and so the pleas were entered at the early stage of his first appearance in the District Court, although he did not reach there by way of expedited committal following pleas of guilty made in the Court of Petty Sessions. The offences were as follows:
(1)Possession of heroin with intent to sell or supply on 2 July 1999 at his home in Mirrabooka. The heroin was secreted in a film canister under clothes inside the washing machine. It was contained in 11 paper folds, each containing about 0.05 of a gram of heroin. The total quantity was 0.57 of a gram of 62 per cent purity. Each fold might be sold on the street for $50 and so the total value of the drug was in the order of $550. The sum of $1,890 in cash was seized, together with kitchen scales which had evidently been used to weigh heroin for separate packaging. Initially the applicant denied all knowledge of the presence of the film canister and its contents. He later declined to be formally interviewed.

(2)Three offences of supplying heroin on 7, 9 and 10 September 1999 at Wanneroo, Malaga and Joondalup respectively. These were individual sales to one person of three folds of heroin, each for the price of $50 and each containing about 0.05 of a gram. The third such sale had been made moments before the police observed the applicant in his vehicle at Joondalup in the company of his customer. None of this heroin was recovered. When the police arrived the customer managed to dispose of the heroin he had just purchased and it was not found. It was possible that the paper fold simply blew away in a high wind.
(3)A further offence of possession of heroin with intent to sell or supply at Joondalup on 10 September 1999. This heroin was found wrapped in plastic in the applicant's shirt pocket when he was apprehended in the circumstances just described. The total quantity of the heroin was 0.49 of a gram of 64 per cent purity and so it may be assumed that the value of this drug when sold on the street would have been about $500. The police seized the sum of $1,025 found in the applicant's wallet and upon searching the vehicle, one owned by his employer and used in the course of his employment as a gas fitter, a further sum of $3,350 was found hidden under the cover of the front passenger seat. Again, the applicant refused to answer any questions in relation to the heroin found in his possession or the sales he had made. The evidence of the sales with which he was charged, apart from the observation made by the police on 10 September, was a statement made by the customer.

No order was made at that time for the forfeiture of the money seized, a total amount of some $6,265. The making of such an order was opposed at that time and it was left to the Crown to make a separate application for forfeiture. However, we were told that upon the making of that application an order for forfeiture would not be opposed.
The possession of the drug in each case was in circumstances which showed that the applicant was a relatively small street pedlar of the drug, albeit in a relatively pure form. Further, it was evident that he was prepared to pursue the trade with some determination because after he was arrested following the commission of the first offence of possession with intent, he was admitted to bail and yet, as can be seen, his trading activities apparently continued undiminished and no doubt involved sales to more than the one customer, particularly when regard is had to the sum of $3,350 secreted in the motor car upon the applicant's arrest on 10 September 1999. His bail was revoked and he remained in custody on remand thereafter.
The applicant was sentenced on 29 February 2000. The Judge found the facts of the commission of the offences to be as I have outlined them. His Honour appropriately described the applicant as "a street level distributor of narcotics." He continued:
"The papers disclose that you are not an addict yourself and don't use heroin, so your involvement is purely commercial. Having regard to your age and antecedents and particularly to your knowledge of the addiction of young people and its effect upon the witness who resided with you and whom I gather you knew was prostituting herself to pay for a drug habit, your involvement in the drug trade for commercial gain is particularly odious."
His Honour rejected the applicant's explanation with respect to the first offence described above that the heroin belonged to the young female addict with whom the applicant was residing. He said he was hiding the drug from her so as to regulate and reduce the amount of heroin she was using. The sentencing Judge described this explanation as "absurd".
Turning to the applicant's personal circumstances, the Judge noted that he was a 48 year old divorcee with three children whom he supported. He had worked for AlintaGas for 17 years and prior to that he had been a self‑employed carpenter. He had a criminal history dating back to 1961 when he was only 9 years of age. There was a series of minor offences as a juvenile for which probation and committal to the care of what was then known as the Community Welfare Department had been ordered. As an adult there were again a series of minor criminal offences and traffic offences. His most serious offences were convictions for assault occasioning bodily harm and doing grievous bodily harm for which in September 1988 he was fined and placed on bonds to be of good behaviour. Thereafter there was nothing of note in his record.
His Honour continued his sentencing remarks with comments which, in my respectful opinion, reveal a proper appreciation of the matters relevant to the sentencing process in this case:
"Whilst you entered a plea of guilty at an early opportunity there has been no expression of remorse, no evidence of contrition, no cooperation with police in volunteering the name of your supplier or the like. Looking at other sentencing considerations it is fair to say that there is an alarming prevalence of hard drug dealing in this state. The cost to the community in terms of ruined lives, broken homes, social disorder, the cost of policing, health care prevention and cure, all indicate the need for a strong deterrent sentence so that all levels of the drug trade, from street level distributors like yourself through to the major importers, all know the price they pay for dealing in drugs is gaol.
There is a need for a specific deterrent in your case, having regard to the fact that you entered this business for commercial gain. There is a need to punish you for your cynical profiteering. There is a need for the protection of the community from people like you.
Finally, in terms of looking at the seriousness of the commission of these offences it should be again noted that these last four offences were committed whilst you were on bail in respect of the first offence, showing that you were prepared to take all of the risks for the monetary rewards the drug trade offers."
His Honour then referred to the mitigation to be found in the early pleas of guilty and the fact that the applicant had been in custody on remand since 10 September 1999. I shall return shortly to how his Honour proposed to provide that credit in the sentences to be imposed, but his Honour said that he thought that a "starting point" for sentencing the applicant would be "in the range of something between 7 and 8 years imprisonment. I am not sure that I understand what was meant by a starting point in that context because his Honour said that he had regard to all of the matters that he had previously mentioned, ie, the circumstances surrounding the commission of the offences and the circumstances personal to the applicant, and he said that he had regard to "the total criminality involved". As has been seen, his Honour had described the matters relevant to the sentencing process which particularly affected the decision to be made in this case. The "starting point" in truth seems to be the expression of a view about the aggregate term of imprisonment which in his Honour's view ought to have been imposed. However, in the end the aggregate term was the period of 6 years imprisonment.
His Honour imposed a sentence of 4 years imprisonment for the first offence of possession of heroin with intent. He imposed sentences of 3 years imprisonment for each of the three offences of supplying heroin and he imposed a sentence of 6 years imprisonment for the second offence of possession of heroin with intent. All the sentences were permitted to be served concurrently and were to date from 2 February 2000, the date of the applicant's first appearance in the District Court.
His Honour's reference to the total criminality involved was no doubt a reference to the operation of the totality principle, the need to take a final look at the overall effect of the sentences imposed so as to ensure that in their aggregate they do not produce a result which punishes excessively having regard to the criminality involved in the commission of the offences and the circumstances of the offender: Jarvis v The Queen (1993) 20 WAR 201.
Although his Honour did not say so, it seems to me that it may well have been that consideration which led him to impose all the sentences concurrently. Were it not for such a consideration one would have thought that the two offences of possession merited separate cumulative punishment and indeed, the three offences of supplying heroin were themselves separate and distinct offences. However, the sentences to be imposed for those offences might properly be permitted to be served concurrently with the second offence of possession with intent on the ground that they were apparently related acts of supply out of the same source of which the second offence of possession with intent represented the remainder.
What then accounts for the reduction of the aggregate term from between 7 and 8 years to 6 years? Having regard to the remarks made by the sentencing Judge when passing sentence, it seems to me that it must lie in the credit his Honour said he would provide for the early pleas of guilty and the time spent in custody. His Honour said that time spent on remand was a period of 141 days from 10 September 1999, a period of about five months. His Honour said that that period "would be the equivalent of perhaps 12 months imprisonment with parole". No doubt his Honour had in mind the provisions of the Sentencing Act 1995 (WA), s 93(1)(a) which provides that if the parole term is 6 years or less the prisoner is eligible to be released on parole when he or she has served one third of the term. A direct mathematical calculation of that kind applied to the period of 141 days would in fact yield something over a year and would occupy all of the period which was the difference between the "starting point" of between 7 and 8 years and the final aggregate term of 6 years. What then, it might be asked, became of the credit which was to be given for the early pleas of guilty?
His Honour was, of course, not obliged to quantify the discount given for the early pleas of guilty and this was a case where, in my opinion, there were factors to which the sentencing Judge referred which tended to reduce the discount. The pleas were made at a relatively early stage and they would attract a discount from the sentence imposed for that reason alone: Sentencing Act, s 8(2). However, it was the case that there had not been early cooperation with investigating police, despite the fact that the applicant had been caught in possession of the heroin the subject of the second such charge. He did not identify his supplier. He did not initially confess his involvement, particularly in respect of the first charge of possession with intent, and in relation to that charge he endeavoured to explain the commission of the offence by a story which the sentencing Judge rejected out of hand. The comment about the applicant's lack of true remorse was therefore appropriate and tended to reduce the mitigatory power of the pleas and the discount which they might cause to be applied: Verschuren v The Queen (1995) 17 WAR 467.
As to the process of recognising the time spent in custody on remand, the Sentencing Act, s 87 provides that that may be done where the sentencing Court considers it to be appropriate, but it is clear from the section that there is no compulsion to reduce a sentence on that account, particularly where, as in this case, the applicant's own conduct by reason of the commission of further offences while on bail may be truly regarded as being responsible for his remaining in custody thereafter: see Ratcliff v The Queen, unreported; CCA SCt of WA; Library No 980651; 3 November 1998 per Murray J, with whom Kennedy and Anderson JJ agreed, at 5, and the cases discussed therein.
However in this case, as has been seen, the sentencing Judge determined that he would allow a credit for the time spent in custody on remand despite the revocation of the applicant's bail as a result of his further offending. Indeed his Honour appears to have allowed the credit by directly backdating the sentences imposed to 2 February 2000, the first appearance in the District Court, and also apparently in respect of the period between 10 September 1999 and 2 February 2000 by reducing the aggregate term, and therefore presumably each of the sentences which went to make up that aggregate, by a period of somewhat in excess of 12 months. His Honour could not, as a matter of law, do both. Section 87 of the Sentencing Act provides that the time in question may be taken into account by the sentencing Court by reducing a fixed term "by an appropriate period" or by backdating the term imposed to the date when the custody on remand began or some later date between that date and the date of the imposition of the sentence.
Apart from that error the matters discussed above present a picture of considerable confusion, but in my opinion the sentencing Judge compounded the difficulty and erred in principle in the sentences he imposed because he did not proceed first to fix individual sentences for each of the offences before the court, having regard to the matters of aggravation and mitigation applicable to them, before finally applying the totality principle to check the appropriateness of the final result. His Honour proceeded in the erroneous manner identified by the High Court in Pearce v The Queen (1998) 194 CLR 610 per McHugh, Hayne and Callinan JJ at 623 ‑ 624, par [45] ‑ par [48]. The effect of failure to proceed by first fixing an appropriate sentence for each offence and then considering questions of cumulation or concurrence and totality was an approach said by the High Court to be "likely to mask error." Such I think has been the effect in this case, although his Honour clearly applied appropriate considerations of principle generally to the sentencing process and had in mind the proper ends to be achieved by the imposition of sentence.
The application for leave to appeal against the sentences relies on two propositions. Firstly, it is argued that there was a failure to properly account for the time spent in custody on remand. I have discussed that proposition above and expressed my agreement with it. The applicant's principal ground is, however, that the sentences were manifestly excessive in that there was a failure to give sufficient weight to mitigatory factors, the pleas of guilty, the applicant's character and antecedents and the lack of a criminal record for offences of this nature.
It was submitted that the applicant was not sentenced in accordance with prevailing sentencing patterns. A number of cases were referred to by both parties. As always when that is done the limited value of the exercise becomes apparent when regard is had to the various aspects of similarity to, and distinction from, the case presently before the court. Perhaps the case of those cited to us which was most like this was that of R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998, but even in that case there were significant points of distinction.
In the first place the appeal in Dao was by the Crown against the inadequacy of an aggregate term of 3 years imprisonment imposed for five offences. There was an offence of selling heroin and being in possession of the drug with an intent to sell in 1997 and there were two offences of selling heroin and a further offence of possession with an intent to sell in October 1998. The total quantity of the possession offences was not dissimilar to that in this case, but the degree of purity was less. The respondent was tried by a jury and convicted of the majority of the offences, only pleading guilty to the remainder after being convicted by the jury. As in this case, the second group of offences were committed while the respondent was on bail in respect of the offences committed in 1997. He did not have a good record. Included in his prior convictions was a previous offence of supplying a prohibited drug. He had previously come almost to the point of imprisonment, having received a suspended sentence for a drug related burglary.

The respondent was dealt with, as in this case, as a street trader, the final link in the distribution process by which the drug was made available in the community. The court could perceive no element of mitigation in either the manner of the commission of the offences or the antecedents of the offender. On appeal, concurrent terms of 4 years imprisonment were imposed for each group of offences. Having regard to the totality principle, the cumulation of the first group of sentences upon the second was partial rather than total. The case seems to me to be more serious than this, having regard to the complete absence of any mitigating factors, but of course, on the other hand, the final result must reflect the double jeopardy inherent in a Crown appeal: R v Leucus (1995) 78 A Crim R 40. Nonetheless, the case does, I think, provide some guidance as to the appropriate level of sentencing for the possession by a street trafficker of relatively small quantities of heroin.
In my opinion, not only did the exercise of discretion miscarry in this case by reason of the sentencing Judge's failure to deal carefully with the mitigation to be found in the early pleas of guilty and the allowance to be made for time spent in custody, but more importantly, it seems to me that all the sentences imposed are excessive to the degree that this Court is compelled to interfere, having regard to all the circumstances of their commission and those personal to the offender. The error in my respectful opinion is revealed by the global sentencing process adopted by his Honour which has led to the last mentioned offence being caused to carry the whole burden of what his Honour conceived to be the appropriate aggregate term.
In my opinion the sentences are individually too long. The seriousness of the offences is undeniable, but the applicant remained a relatively small street trader. The heroin in his possession on each occasion was worth about $550 and $500 respectively. He was dealing in relatively small amounts. But a course of dealing was established and the drug is undoubtedly one of the most pernicious to which vulnerable members of the community may be exposed. The case of the applicant was made worse by the fact that he was trading entirely for profit, albeit profit of a relatively small order. A deterrent sentence was required which appropriately punished the offending behaviour and recognised that the applicant continued to trade while on bail for the first offence, albeit that the three offences of supplying heroin were of a relatively minor character.
The court could not lose sight of the applicant's history. He had been in stable employment for many years. His criminal history revealed no similar offences. He had not previously been imprisoned. He pleaded guilty at an early stage and although it was in my respectful opinion right to say that he had not displayed true remorse, he was entitled to a credit for the pleas of guilty in the eyes of the law. He was not, however, in my opinion, entitled to any credit for the time spent in custody prior to his first appearance in the District Court on 2 February 2000. Having said that, the court should not lose sight of the fact that, although he had brought the previous detention upon himself by his breach of bail, it was nonetheless a punishment which he had sustained which was related to his offending behaviour.
In my view having regard to all those matters an appropriate sentence for the first offence of possession with intent would have been one of 3 years imprisonment. I consider that the three offences of supplying heroin to the one individual merited no more than 18 months imprisonment each. The second offence of possession of heroin with intent was more serious in the circumstances to which I have referred and I would impose a sentence of 4 years imprisonment for that offence.
The second group of four offences should be punished by the imposition of concurrent sentences, but it would ordinarily be appropriate to impose that aggregate term cumulatively upon the 3 years sentence previously imposed. That would make an aggregate of 7 years imprisonment. To my mind that would be too great a punishment for the overall criminality involved in the applicant's conduct. As in the case of Dao, the solution to my mind lies in partial cumulacy. I would order the second group of sentences to be served concurrently with each other, but partially cumulative upon the first sentence. The second group of sentences should commence to be served after the service of 1 year of the first sentence of 3 years imprisonment. That would result in an aggregate term of 5 years imprisonment. I would not interfere with the parole eligibility order and I would not change the order that those sentences were all to commence to be served upon 2 February 2000.

I would grant leave, allow the appeal, quash the sentences imposed by his Honour and impose the sentences to which I have referred above.
PARKER J: I have had the advantage of reading in draft the reasons now published by Murray J. His Honour has set out in some detail the circumstances in which the five offences for which the applicant was sentenced were committed. Because of this I will only refer to limited aspects of the circumstances.
The applicant was a seller of heroin at the lower end of the scale in that he was engaged in selling heroin, which he obtained from others, in small quantities to the ultimate consumers. It was clear that the first offence of possession with intent to sell or supply committed on 2 July 1999 was not a petty offence. At that stage the applicant was found to have secreted some 11 folds or deals, each containing about 0.05 of a gram of heroin, ie in all 0.57 of a gram, in his house. Each fold might be sold on the street for $50. The heroin was of unusually high purity, 62 per cent. In addition to these 11 folds worth some $550, the applicant had some $1,890 in cash. He also had scales which had been used to package folds for sale. These matters reveal that even then the applicant was engaged in the systematic sale or supply of heroin to others. He was not a user so that financial gain was his only motivation. He denied involvement and pleaded not guilty when charged. He offered no assistance whatever to the investigating police. It was not until his first arraignment on indictment in the District Court on 2 February 2000 that he changed his plea to one of guilty.
Because of his initial denial of the first charge the applicant came to be released on bail. The remaining offences were committed while he was on bail. He was observed in the act of supplying heroin to individual customers on three different occasions at different locations on 7, 9 and 10 September 1999. These were sales of individual folds each for $50. The second offence of possession with intent to sell or supply was with respect to events on 10 September 1999 when, following the sale on that date, some 0.49 of a gram of 64 per cent purity heroin was found on his person. At street sale value this quantity was worth about $500. He then had $1,025 in his wallet and a further $3,350 hidden in his employer's vehicle which he was using. Again the applicant refused to admit the offences or to cooperate with the investigating police. After the ordinary committal process the applicant first pleaded guilty to these further offences when he was arraigned on indictment in the District Court on 2 February 2000. This further conduct confirms the applicant's persistent involvement in the systematic selling of heroin to consumers, a course of

conduct persisted in despite his arrest on the first possession charge in July 1999.

While the applicant eventually pleaded guilty to all offences, this did not occur at the first or at an early opportunity. The pleas were entered in the face of compelling evidence and the circumstances do not indicate genuine remorse. Nevertheless, he did plead guilty in the end to all charges.
Murray J has identified the personal circumstances of the applicant which include a number of matters that tell in his favour. I will not detail them all again but I note, in particular, the absence of serious or relevant criminal record and the applicant's history of stable employment.
I respectfully agree that the decision of the Court of Criminal Appeal in R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998 provides the most relevant authoritative point of reference with respect to sentences for offences somewhat similar to those for which the applicant was sentenced. That comment must be significantly qualified, however, because there are clear points of distinction between the circumstances in R v Dao (supra) and the present case. Further, any process of assessment of prevailing sentencing patterns is inevitably of somewhat limited value as in any process of comparison for this purpose there is a wide range of matters which bear varying degrees of similarity to and difference from the circumstances of other cases with which comparison is made. It is rare indeed that two cases can be found which afford close comparison.
In R v Dao the Crown appealed successfully against the inadequacies of the penalties imposed at first instance. It was a Crown appeal which has the consequence that the sentences imposed on appeal are at the conservative end of the appropriate range.
There were two groups of offences in R v Dao. The first three offences were closely related in time. Each involved heroin. Two offences were for street sales very similar to the sales in the present case. The third was a charge of possession with intent to sell or supply of some nine folds of heroin weighing in all some 0.29 of a gram of extremely low strength heroin 0.4 per cent purity, a matter on which both the sentencing Judge and the appellate court made specific comment. Dao had $225 in cash when apprehended. He was seen to be a dealer at the lower end of the scale, but nevertheless a dealer in heroin as distinct from less serious substances, for financial gain as he was not a user himself at the time of this first group of offences, and the dealings were not isolated incidents or under sudden temptation or in other unusual circumstances. His was described as a systematic involvement in the distribution by sale of heroin. Dao also had scales for measuring out folds. He too refused to cooperate with the police and he denied the offences. In his case Dao did not in the end plead guilty and went to trial in respect of this first group of offences. Sentences of 12 months imprisonment for each of these three charges, one of them cumulative on the other two, were increased on appeal to sentences of four years imprisonment for each of the offences, the sentences to be served concurrently because of the other charges to which I now turn.
These further charges against Dao related to a further sale of a fold in similar circumstances to the other sales, and the possession of two further folds with intent to sell or supply. These two folds contained 32 per cent pure heroin. The total weight of all three folds was some 0.09 of a gram. These further two offences were committed while Dao was on bail for the first three offences. Again, initially he denied the two further offences but in the end he pleaded guilty to them after he had been convicted of the three earlier offences. The evidence indicated that Dao had himself become a user after his initial arrest and he had later undergone significant steps toward rehabilitation including a determined involvement in a methadone programme. Reports before the sentencing Judge indicated that his efforts in this respect were genuine and that he had accepted his wrong doing in respect of all five offences. On appeal, while the view was expressed that each of these offences warranted some four years imprisonment, for a number of reasons, especially the totality principle but also his eventual pleas of guilty, the evidence of genuine remorse and his efforts toward personal rehabilitation, sentences of two years imprisonment for each of these two further offences were imposed on appeal. These two terms each of two years were ordered to be served concurrently with each other, but cumulatively on the earlier sentences, ie an effective total term of six years imprisonment.
It is to be noted that Dao's general personal circumstances were in some respects less favourable than those of the present applicant as he had previously been convicted of supplying a prohibited drug and he had also received a suspended sentence of imprisonment. The circumstances of the five offences the subject of the appeal, however, would indicate that Dao was not shown to be as seriously involved in street trading in heroin as the present applicant.
I respectfully agree with Murray J that the exercise by the learned sentencing Judge of the sentencing discretion in this case has miscarried. It becomes necessary, therefore, to consider afresh how the applicant should be sentenced in respect of the present offences. Having regard to the circumstances of the offences and the circumstances personal to the applicant which Murray J has set out more extensively, in light of the decision in R v Dao and the other decisions which were referred to in this respect in the course of argument, it is my view that for the first offence of possession, while a sentence in the order of four years imprisonment would normally be warranted, I would impose a term of three years imprisonment in this case, especially because of the personal circumstances favourable to the applicant and his plea of guilty. I also consider that terms of three years imprisonment should be imposed in respect of each of the three subsequent selling offences, those terms being fixed having regard in particular to the pleas of guilty and the personal circumstances of the applicant. The second possession offence should, in my view, be marked more significantly than the first because it shows the persistence of the applicant in this conduct despite his having been earlier charged with the first possession offence. In my view a term in the order of five years imprisonment would otherwise be warranted, but I would impose a sentence of four years having regard to the plea of guilty and personal circumstances of the applicant.
In this case it is obviously necessary to have careful regard to the totality principle. At the same time there is clear justification for marking the applicant's conduct in actually effecting several sales on distinct occasions separately from, and in addition to, the two acts of possession. I would agree with the learned sentencing Judge that a total effective term in the order of six years is warranted to reflect adequately the total seriousness of the conduct and the applicant's personal circumstances. I would, therefore, order that the sentences of three years for each of the three selling offences be served concurrently with each other but that the service of these sentences should be partly cumulative on the term for the first possession offence and should commence after the applicant has served one year of the sentence for the first possession offence. Further, I would order that service of the term of four years for the second possession offence should be partly cumulative on the sentences for the three selling offences and should commence after the applicant has, in turn, served one year of the concurrent terms imposed for the three selling offences. The effect of this is that the total sentence remains six years imprisonment. I would not disturb the order that the applicant be eligible for parole and there is no reason to disturb the view of the learned sentencing Judge that the commencement date for the first of the sentences should be that of the applicant's first appearance in the District Court, which was 2 February 2000.
For these reasons, while I would grant leave to appeal and allow the appeal, I would impose sentences as indicated so that the effective result is the same as that achieved by the learned sentencing Judge.