Stagno v The State of Western Australia
[2013] WASCA 166
•24 JULY 2013
STAGNO -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 166
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 166 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:145/2012 | 18 MARCH 2013 | |
| Coram: | BUSS JA NEWNES JA MAZZA JA | 24/07/13 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal is granted Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | PAOLO NUNZIO STAGNO THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Error of law Totality principle |
Legislation: | Misuse of Drugs Act 1981 (WA), s 6(1)(a) Firearms Act 1973 (WA), s 19(1)(c), s 19(1ab) |
Case References: | Cartwright v The State of Western Australia [2010] WASCA 4 Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246 Huynh v The State of Western Australia [2012] WASCA 8 Jarvis v The Queen (1993) 20 WAR 201 Jecks v The State of Western Australia [2007] WASCA 111 Jordan v The State of Western Australia [2012] WASCA 163 Moreton v The State of Western Australia [2011] WASCA 258 Neumann v The State of Western Australia [2013] WASCA 70 Pepper v The State of Western Australia [2005] WASCA 177; (2005) 30 WAR 447 Roffey v The State of Western Australia [2007] WASCA 246 Schlenka v The Queen [2004] WASCA 142 Tanner v The State of Western Australia [2013] WASCA 142 Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 Vagh v The State of Western Australia [2007] WASCA 17 Vogel v The Queen [2002] WASCA 261 Watt v The Queen [2000] WASCA 354 Wilson v The State of Western Australia [2010] WASCA 82 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : STAGNO -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 166 CORAM : BUSS JA
- NEWNES JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : McCANN DCJ
File No : IND 1436 of 2009
Catchwords:
Criminal law - Appeal against sentence - Error of law - Totality principle
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Firearms Act 1973 (WA), s 19(1)(c), s 19(1ab)
Result:
Leave to appeal is granted
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr L M Levy SC
Respondent : Mr J A Scholz
Solicitors:
Appellant : David Manera
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Cartwright v The State of Western Australia [2010] WASCA 4
Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246
Huynh v The State of Western Australia [2012] WASCA 8
Jarvis v The Queen (1993) 20 WAR 201
Jecks v The State of Western Australia [2007] WASCA 111
Jordan v The State of Western Australia [2012] WASCA 163
Moreton v The State of Western Australia [2011] WASCA 258
Neumann v The State of Western Australia [2013] WASCA 70
Pepper v The State of Western Australia [2005] WASCA 177; (2005) 30 WAR 447
Roffey v The State of Western Australia [2007] WASCA 246
Schlenka v The Queen [2004] WASCA 142
Tanner v The State of Western Australia [2013] WASCA 142
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
Vagh v The State of Western Australia [2007] WASCA 17
Vogel v The Queen [2002] WASCA 261
Watt v The Queen [2000] WASCA 354
Wilson v The State of Western Australia [2010] WASCA 82
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
1 BUSS JA: I agree with Mazza JA.
2 NEWNES JA: I agree with Mazza JA.
3 MAZZA JA: This is an appeal against sentence.
4 The appellant was arraigned before McCann DCJ and a jury in the District Court on four counts in an indictment being:
Count 1: On 8 January 2009, he possessed 130.06 g of methylamphetamine with a purity of 7 to 8% with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).
Count 2: On 8 January 2009, he possessed an unlicensed firearm while also in possession of a prohibited drug, contrary to s 19(1)(c) and s 19(1ab)(a)(i) of the Firearms Act 1973 (WA).
Count 3: On 8 January 2009, he possessed 48 rounds of 0.40 calibre ammunition without a licence, contrary to s 19(1)(c) of the Firearms Act.
Count 4: On 25 February 2011, he possessed 15.07 g of methylamphetamine, of which 1.67 g was 1% pure and 13.4 g was 78% pure, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act.
5 The appellant pleaded guilty to count 3. In relation to count 2, the appellant pleaded guilty to being in possession of an unlicensed firearm, but not guilty to the circumstance of aggravation of being in possession of a prohibited drug. He pleaded not guilty to counts 1 and 4. He was convicted by the jury of counts 1, 2 and 4 as charged.
6 On 25 May 2012, the appellant was sentenced as follows:
Count 1: 4 years' imprisonment
Count 2: 1 year 6 months' imprisonment
Count 3: 6 months' imprisonment
Count 4: 2 years 6 months' imprisonment
7 His Honour ordered that the sentences on counts 1, 2 and 4 be served cumulatively so that the total effective sentence was 8 years' imprisonment. The appellant was made eligible for parole and the sentence was backdated to commence on 9 March 2012.
8 There are two grounds of appeal. Ground 1 alleges that the learned sentencing judge erred by finding that the gravamen of count 4 was 'similar in seriousness to count 1'. Ground 2 alleges that the total effective sentence of 8 years' imprisonment infringed the first limb of the totality principle. Leave to appeal has been granted in respect of ground 2. The question of leave to appeal in respect of ground 1 was referred to the hearing of the appeal.
9 For the reasons that follow, the appeal must be dismissed.
The conduct of the sentencing proceedings
10 The sentencing proceedings had many of the features which were recently described by this court in Tanner v The State of Western Australia [2013] WASCA 142. There is no ground of appeal directed to what occurred in the present case and therefore there is no need to describe in detail what occurred. It is sufficient to state that the observations made in Tanner by Buss JA at [160] - [161], with whom I agreed, and by the Chief Justice at [2] - [3], are apposite to this case.
The facts as found by the learned sentencing judge
11 The learned sentencing judge presided over the trial before the jury and a trial of issues in respect of count 2. The accused did not give evidence in the trial before the jury, but he testified in the trial of issues. Thus, his Honour was well placed to make findings of fact.
12 On 8 January 2009, the Holden Commodore that the appellant was driving was stopped and searched by police on Manning Road, Wilson. The police officers found approximately 130 g of methylamphetamine, with a purity of between 7 and 8%, distributed between a number of plastic bags hidden in the car (count 1). His Honour described the drugs as being carefully sorted and packaged in various quantities, ready for sale on a wholesale basis to street level dealers (ts 1051).
13 The police also found, hidden under the driver's seat, a Glock handgun with its serial number erased. The weapon was loaded with 13 rounds of ammunition in the magazine (count 2).
14 In addition to the drugs and the firearm, the appellant was found to be carrying $2,380 in cash in his wallet.
15 The appellant's home was then searched. There, investigators found tick lists which showed 'prior [drug] dealing on credit in very large sums of money' (ts 1052). During this search, the police discovered the ammunition the subject of count 3.
16 The appellant's mobile telephone was seized and his text messages were read. Many of these messages plainly related to drug dealing. His Honour said that they showed that the appellant had 'close business links with known drug dealers' (ts 1052).
17 Count 4 was committed more than 2 years after counts 1 to 3, while the appellant was on bail for those charges.
18 On 25 February 2011, the police stopped and searched the appellant's work vehicle. The police found two bags containing methylamphetamine in the vehicle's freezer compartment. One bag contained 1.67 g of methylamphetamine with a purity of only 1%. His Honour said that he was minded to think that this was a contaminated cutting agent. The other bag contained 13.4 g of methylamphetamine with a very high purity of 78%. His Honour said this quantity had 'more or less come uncut from manufacture' and described it as being 'carefully wrapped and tied' (ts 1053).
The appellant's antecedents
19 The appellant was 29 years of age when he was sentenced. His Honour noted that the appellant came from an excellent family and was a highly skilled mechanic.
20 The appellant had what his Honour described as 'a shocking driving record' which he said showed that the appellant had a 'wilful disregard for public safety and [the] law'. However, apart from a conviction for possession of cannabis with intent to sell or supply when the appellant was 18, he had no prior drug offences. The learned sentencing judge accepted that the appellant had been a user of illicit drugs since some time prior to 2008. He found that the appellant was not remorseful and lacked insight into his offending. His Honour considered that the appellant posed a high risk of reoffending in a similar way in the future (ts 1055).
The sentencing remarks
21 In respect of count 1, although his Honour accepted that at the time of the offence the appellant was a drug user, he found that the quantities and extent of the appellant's dealing far exceeded anything he could possibly need for his personal use. His Honour described the appellant's drug operation as 'wholly commercial' (ts 1056). He said that the appellant was the 'principal in a mid-level wholesale drug distribution network'. He further said that the appellant was 'motivated by greed and characterised by a willing association with the worst aspects of the criminal underworld' (ts 1052).
22 With respect to the handgun, his Honour accepted that the appellant did not own it. He found that the weapon had been put in the car by the appellant some hours before he was arrested on count 1. His Honour said that the weapon was 'part of [the appellant's] drug dealing operation' and that the appellant intended to use it, if required, for his own protection or to threaten others in the course of his drug dealing (ts 1052 and 1053).
23 His Honour differentiated between the appellant's roles in counts 1 and 4. While in count 1 his Honour considered the appellant to be a principal in his own drug dealing business, in respect of count 4 he described the appellant as 'a courier and bagman' for others (ts 1052 and 1053). Nevertheless, his Honour regarded the offending in count 4 as serious. The learned sentencing judge calculated that 13.4 g of 78% pure methylamphetamine would be enough for '500 very strong deals and 1,000 smallish deals, reasonably weak deals, by street level standards of the day' (ts 1054). His Honour went on to make the statement the subject of ground 1:
The gravamen of this offence, as I've tried to emphasise during submissions, is that it was of similar seriousness to count 1. This is of a similar scale of drug distribution, but just a different role. Absent was the element of greed and self-motivation and organisation. [The appellant] was playing a more subservient role on this occasion, I would suggest, highly possibly under some kind of pressure he couldn't resist; of itself, one of the more odious aspects of this industry.
But the point is that I am of the view that possession of wholesale quantities or potentially wholesale quantities of drugs which have come straight from the manufacturer and not been cut in any way, in other words, very pure methylamphetamine, is an extremely serious aggravating factor.
For the avoidance of doubt, I repeat: in my view, the people working closely to the owners and operators of these distributors, the people who were importing a manufactured drug into Western Australia or manufacturing it here, are vital to those principal's [sic] interests. They are important lieutenants, and as a matter of general deterrence, it is these couriers and mid-level distributors of high grade methylamphetamine that need to be targeted by sentencing judges (ts 1054). (emphasis added)
24 His Honour took into account as an aggravating factor that count 4 was committed while the appellant was on bail for counts 1, 2 and 3. He said that there was no mitigation at all in relation to count 4 (ts 1057).
25 His Honour noted that the trade in methylamphetamine is conducted easily and in secret and is difficult to detect and intercept. He emphasised the need for personal and general deterrence. He assessed the appellant's overall criminality for the offences as being very high.
26 His Honour observed that the pleaded circumstance of aggravation in count 2 overlapped with the appellant's conviction on count 1. His Honour said that in order to ensure that there was no aspect of double punishment for the aggravating circumstance, he would sentence the appellant on count 2 as if he had been convicted 'merely' of possession of an unlicensed firearm, which carries a maximum penalty of 5 years' imprisonment per s 19(1ad) of the Firearms Act. It is clear from a reading of his Honour's sentencing remarks as a whole that the sentence he imposed on count 1 did not take into account the appellant's possession of the firearm.
27 His Honour had express regard to the totality principle. He did so by reducing the sentence he would otherwise have imposed on count 4 from 4 years' imprisonment to 2 years and 6 months' imprisonment (ts 1060).
Analysis and disposition of ground 1
28 Mr Levy SC, on behalf of the appellant, submitted that the overall criminality of count 4 was less than the overall criminality of count 1. Senior counsel emphasised the different roles played by the appellant in the offences. In count 1, the appellant was a principal running his own drug dealing business, while in count 4, the appellant was acting as a courier. Senior counsel further submitted that his Honour placed too much emphasis on the potential for the drug in count 4 to be cut.
29 There are some obvious and significant differences between counts 1 and 4. Count 1 was committed by the appellant as a principal, that is, as someone who is running his own drug dealing business for profit. The surrounding circumstances, most notably the text messages, showed that at the time of the offending, the appellant was involved in an ongoing business in which large sums of money were changing hands. However, his role in count 4 was different. The appellant was not conducting his own business, but was acting as a courier and bagman for someone else. As his Honour noted, the elements of greed, self-motivation and organisation which marked count 1 were absent from count 4.
30 With great respect to his Honour, it is not entirely clear what he meant when he said that the gravamen of the offence in count 4 was of similar seriousness to count 1. It may be that his Honour was alluding to the comment that he made during the sentencing proceedings, that the 13.4 g could be diluted to produce over 100 g of 'usable' methylamphetamine (ts 965 - 966). It might also be that his Honour was saying that whether the appellant acted as a principal in his own business or as a courier in someone else's business, he was nevertheless performing an important role in the distribution of prohibited drugs and thus, the offending required strong deterrent punishment.
31 The resolution of this ground requires an analysis of the relative seriousness of counts 1 and 4, having regard to all of the relevant circumstances of the case.
32 It is generally accepted that drug dealing is a hierarchical business. Those engaged in the business of selling drugs as a principal are ordinarily regarded as more culpable than those who act as a courier. This is because it is the principal who stands to profit to a greater extent than the courier.
33 Based on his Honour's findings, at the time the appellant committed count 1, the appellant was conducting an organised wholesale operation dealing in methylamphetamine in which large sums of money were involved. However, by the time count 4 was committed, the appellant was no longer acting in that capacity. Nevertheless, what the appellant did by committing count 4 involved a high degree of culpability. The appellant knowingly transported 13.6 g of high grade methylamphetamine which he knew or must reasonably have known was destined to be cut and ultimately distributed onto the streets. His role was an important link in the chain of distribution. The very high purity of the drug was an aggravating factor, as was the fact that the offence was committed while the appellant was on bail.
34 Having considered the circumstances, in my opinion it cannot be said that the gravamen of count 4 was of a similar seriousness to count 1. In my opinion, count 1 was a more serious offence than count 4, particularly having regard to the appellant's role as principal in count 1. It follows that ground 1 has been made out.
35 However, the appellant's appeal cannot be allowed on this ground unless the court forms the opinion that a different sentence should have been imposed: s 31(3) and s 31(4) of the Criminal Appeals Act 2004 (WA).
36 In the end, the appellant received 2 years 6 months' imprisonment for count 4. Having regard to all the circumstances of the case, this was an appropriate sentence to impose. The major sentencing considerations for drug offences of the kind committed by the appellant are general and specific deterrence: Neumann v The State of Western Australia [2013] WASCA 70 [26] While the quantity and purity of the drug are not the sole factors to be taken into account, they are doubtless important: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584; Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107. The high purity showed that the appellant was very close to the source of manufacture and the drug would almost inevitably have been diluted, although there was no evidence to suggest that the appellant would undertake that task. It is undoubtedly an aggravating factor that the offence was committed while the appellant was on bail for similar offending: Moreton v The State of Western Australia [2011] WASCA 258 [47]. There was no mitigation in respect of the offence. The appellant was not of good character. He was not youthful. He did not plead guilty. Although this is not an aggravating factor, it is not a mitigating factor of which he could avail himself. He was not remorseful.
37 The maximum penalty for an offence against s 6(1)(a) of the Misuse of Drugs Act is 25 years' imprisonment or a fine of $100,000 or both: s 34(1)(a) of the Misuse of Drugs Act.
38 In order to ensure broad consistency, I have taken into account the sentencing standards customarily observed with respect to similar offending, bearing in mind, of course, that the appellant pleaded not guilty.
39 Some of the relevant cases were discussed by McLure P in Cartwright v The State of Western Australia [2010] WASCA 4. In that case, the appellant was convicted after trial of possession of 11.8 g of methylamphetamine with a purity of 78%, with an intent to sell or supply it to another. The court unanimously rejected the proposition that a term of 3 years' immediate imprisonment was manifestly excessive, describing the sentence as 'well within the standards of sentencing customarily imposed', having regard to such cases as Pepper v The State of Western Australia [2005] WASCA 177; (2005) 30 WAR 447; Vogel v The Queen [2002] WASCA 261; Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246; Watt v The Queen [2000] WASCA 354; and Jecks v The State of Western Australia [2007] WASCA 111. McLure P referred to Schlenka v The Queen [2004] WASCA 142, where the appellant was convicted after trial of possession of 12.7 g of methylamphetamine with a purity of 47% with intent to sell or supply. In that case, the appellant, a first time offender, was sentenced to 2 years 4 months' imprisonment. The court in Schlenka noted that this sentence would usually be within the range of a proper discretion but because of the 'particularly unusual' circumstances of the case, reduced it to 1 year 8 months' imprisonment.
40 I would not impose a different sentence to the one imposed by McCann DCJ for count 4. Although I would grant leave to appeal in respect of ground 1, it must be dismissed.
Analysis and disposition of ground 2
41 Mr Levy's submissions with respect to ground 2 were primarily concerned with the effect of his Honour's decision to accumulate the sentence he imposed on count 4. He submitted that, having regard to the appellant's personal circumstances, the fact that he made some admissions at trial, the plea of guilty on count 3, the partial plea of guilty on count 2 and that the appellant's culpability in respect of count 4 was less than count 1, the total effective sentence of 8 years' imprisonment infringed the first limb of the totality principle and should be reduced.
42 The totality principle is well-known. It has been described in many cases. A generally accepted formulation of the totality principle was enunciated by McLure JA in Roffey v The State of Western Australia [2007] WASCA 246, where her Honour said:
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J) [24] - [25].
43 When analysing whether a total effective sentence infringes the first limb of the totality principle, it must be appreciated that the severity of a term of imprisonment increases exponentially as it increases in length: Jarvis v The Queen (1993) 20 WAR 201, 207.
44 I will not repeat what I have already said concerning the major sentencing principles applicable to drug offences. With respect to firearm offences, general deterrence is a major consideration. Those who deal in illicit drugs will frequently be found in possession of firearms. Based on the experience of this court, it is one of the frequently seen tools of the drug trade. Sometimes the possession of the firearm will be charged separately to the drug offence and sometimes not. The presence of a firearm, when uncharged, will generally be viewed as an aggravating factor.
45 Where a separate firearms charge is alleged and committed, it will often attract its own cumulative penalty. A judge who imposes a cumulative penalty must be careful to ensure that there is no aspect of double punishment when imposing an appropriate sentence for the drug offence. It is not suggested that in the present case his Honour fell into this error. This court has not been called upon to consider or rule upon the range of sentences customarily imposed for breaches of the Firearms Act. However, I note that in Huynh v The State of Western Australia [2012] WASCA 8, a cumulative sentence of 2 years' imprisonment for possession of an unlicensed handgun was not interfered with. See also Jordan v The State of Western Australia [2012] WASCA 163.
46 There can be no doubt that the appellant's overall offending in this case was very serious. In respect of count 1, the appellant was engaged, at the time, in the business of wholesale drug distribution for profit. He was found in possession of a substantial quantity of methylamphetamine of street purity. The firearm that he possessed, count 2, although not belonging to the appellant, had plainly been illegally obtained and was loaded. The erasure of the serial number meant that its provenance could not be ascertained. His Honour found that the appellant had the weapon for his protection or to threaten others. The use of firearms by drug dealers introduces a potential for violence and requires particular deterrence. It was appropriate to accumulate the individual sentences for counts 1 and 2.
47 I have already described the circumstances and seriousness of count 4.
48 The personal circumstances of the appellant were not favourable. He was not remorseful and he has a high risk of reoffending. Personal and general deterrence were important considerations in this case.
49 The learned sentencing judge was correct to impose a cumulative penalty with respect to count 4: the offence was committed more than 2 years after counts 1, 2 and 3, and while the appellant was on bail for those offences.
50 I have had regard to sentences imposed in broadly comparable cases, including Vagh v The State of Western Australia [2007] WASCA 17, Wilson v The State of Western Australia [2010] WASCA 82 and Jordan, in all of which the appellants pleaded guilty. The total effective sentence imposed in the present case is not inconsistent with the outcomes in those cases, particularly bearing in mind the appellant's not guilty pleas.
51 In my opinion, the total effective sentence imposed upon the appellant in the present case bore a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and having regard to the circumstances of the case, including those referable to the appellant personally.
52 Ground 2 has not been made out.
Conclusion and orders
53 Ground 1 has been made out, but I would not impose a different sentence. Ground 2 fails. I would make the following orders:
1. Leave to appeal on ground 1 is granted.
2. The appeal is dismissed.
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