Stapleton v The Queen
[2004] WASCA 130
•21 JUNE 2004
STAPLETON -v- THE QUEEN [2004] WASCA 130
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 130 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:147/2002 | 5 MARCH 2004 | |
| Coram: | MALCOLM CJ WHEELER J MCKECHNIE J | 21/06/04 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | BERNARD JOHN STAPLETON THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Supply of 437 grams of methylamphetamine 58 per cent pure Offender responsible for bringing drug into Western Australia for resale and supply Whether sentencing of imprisonment for 9 years manifestly excessive Whether discount for plea of guilty should be stated Whether discount for personal factors inadequate |
Legislation: | Misuse of Drugs Act 1981 (WA), s 6(1)(c), s 34(1)(b) |
Case References: | Aconi v The Queen [2001] WASCA 211 Atholwood v R [1999] WASCA 256; (1999) 109 A Crim R 465 Bates v Wheatley [2000] WASCA 38 Cameron v The Queen [2000] WASCA 286 Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Cardile v The Queen [2003] WASCA 72 Collier v The Queen [2001] WASCA 69 De Luce v R, unreported; CCA SCt of WA; Library No 960375; 19 July 1996 Grimwood v The Queen [2002] WASCA 135 Kezkiropoulos v The Queen [2002] WASCA 352 Mada v The Queen [2003] WASCA 1; (2003) 137 A Crim R 460 Quach v R [1999] WASCA 210 R v Bellissimo (1996) 84 A Crim R 465 R v Darwell (1997) 94 A Crim R 35 R v Munro [2000] WASCA 285 R v Ruich [2000] WASCA 84 R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383 Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313 Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656 Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995 Verschuren v The Queen (1996) 17 WAR 467 Watson v The Queen [2000] WASCA 119 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 Angeleski v The Queen [2003] WASCA 209 Dadswell v The Queen [2003] WASCA 212 Dodd v The Queen [2002] WASCA 55 Heryadi v The Queen (1998) 19 WAR 383 Krakouer v The Queen (1996) 16 WAR 1 Lim v The Queen, unreported; CCA SCt of WA; Library No 970482; 26 September 1997 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55 R v Foster & D'Anna (1992) 59 A Crim R 14 R v Hafner [2002] WASCA 211 R v Morse (1979) 23 SASR 98 R v Nai Poon [2003] NSWCCA 42; (2003) 56 NSWLR 284 R v Ruvinovski [2000] WASCA 398; (2000) 116 A Crim R 131 Thompson v The Queen (1992) 8 WAR 387 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : STAPLETON -v- THE QUEEN [2004] WASCA 130 CORAM : MALCOLM CJ
- WHEELER J
MCKECHNIE J
- Applicant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : KENNEDY DCJ
File Number : IND 1938 of 1999
Catchwords:
Criminal law and procedure - Sentencing - Supply of 437 grams of methylamphetamine 58 per cent pure - Offender responsible for bringing drug into Western Australia for resale and supply - Whether sentencing of
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imprisonment for 9 years manifestly excessive - Whether discount for plea of guilty should be stated - Whether discount for personal factors inadequate
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(c), s 34(1)(b)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr J A Davies
Respondent : Mr R E Cock QC and Mr D N Ryan
Solicitors:
Applicant : Dawson Davies
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Aconi v The Queen [2001] WASCA 211
Atholwood v R [1999] WASCA 256; (1999) 109 A Crim R 465
Bates v Wheatley [2000] WASCA 38
Cameron v The Queen [2000] WASCA 286
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Cardile v The Queen [2003] WASCA 72
Collier v The Queen [2001] WASCA 69
De Luce v R, unreported; CCA SCt of WA; Library No 960375; 19 July 1996
Grimwood v The Queen [2002] WASCA 135
Kezkiropoulos v The Queen [2002] WASCA 352
Mada v The Queen [2003] WASCA 1; (2003) 137 A Crim R 460
Quach v R [1999] WASCA 210
R v Bellissimo (1996) 84 A Crim R 465
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R v Darwell (1997) 94 A Crim R 35
R v Munro [2000] WASCA 285
R v Ruich [2000] WASCA 84
R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383
Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313
Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656
Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995
Verschuren v The Queen (1996) 17 WAR 467
Watson v The Queen [2000] WASCA 119
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Case(s) also cited:
AB v The Queen [1999] HCA 46; (1999) 198 CLR 111
Angeleski v The Queen [2003] WASCA 209
Dadswell v The Queen [2003] WASCA 212
Dodd v The Queen [2002] WASCA 55
Heryadi v The Queen (1998) 19 WAR 383
Krakouer v The Queen (1996) 16 WAR 1
Lim v The Queen, unreported; CCA SCt of WA; Library No 970482; 26 September 1997
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55
R v Foster & D'Anna (1992) 59 A Crim R 14
R v Hafner [2002] WASCA 211
R v Morse (1979) 23 SASR 98
R v Nai Poon [2003] NSWCCA 42; (2003) 56 NSWLR 284
R v Ruvinovski [2000] WASCA 398; (2000) 116 A Crim R 131
Thompson v The Queen (1992) 8 WAR 387
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1 MALCOLM CJ: In the District Court at Perth on 17 June 2002 the applicant was convicted of supplying methylamphetamine contrary to s6(1)(c) of the Misuse of Drugs Act1981 (WA) and was sentenced by Kennedy DCJ as she then was on 25 July 2002 to imprisonment for 9 years with eligibility for parole. The maximum penalty for the offence is a fine of up to $20,000 or imprisonment for 20 years or both under s 34(1)(b) of the Act.
2 The applicant seeks leave to appeal against the sentence on two grounds, namely:
(1) The starting point of 10 years' imprisonment for the supply of 437 grams of methylamphetamine was manifestly excessive.
(2) The applicant received insufficient reduction in his sentence for his plea of guilty and matters personal to him such that a sentence of 9 years' imprisonment was, in all the circumstances, manifestly excessive.
3 The applicant was indicted and was to be tried with alleged co-offenders on a second indictment which alleged that on 18 June 1999 at Dianella, Anthony La Bianca and one Frank Charles Agostino had in their possession a prohibited drug, namely, methylamphetamine, with intent to sell or supply it to another, and that, further, between 1 and 19 June 1999 at Perth, Barry Carlyle Sutton and Stephen Jeffery Sokol conspired together with one another to possess a prohibited drug, namely, methylamphetamine, with intent to sell or supply it to another.
4 The trial of the four then alleged offenders was listed for four weeks to commence on 4 June 2002. At a directions hearing on 23 May 2002 Mr La Bianca pleaded guilty. He was remanded for sentence and sentencing submissions were made on his behalf on 7 June 2002 when he was remanded to be sentenced on 25 July 2002. On 4 June 2002, the day on which the trial was to begin, Mr Sutton pleaded guilty. He was remanded to 14 June 2002 when sentencing submissions were heard and he was remanded to 25 July 2002 for sentencing.
5 The trial of Mr Sokol and Mr Agostino did not commence on 4 June 2002 because the applicant was not present. He was in hospital in Victoria. The trial of Messrs Sokol, Agostino and Stapleton was delayed to commence on 17 June 2002. On that day the applicant, Mr Stapleton, who had surrendered himself in the previous week, pleaded guilty. The trial of Messrs Sokol and Agostino commenced before a jury on 17 June
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- and was completed on 26 June 2002 when Mr Agostino was acquitted and Mr Sokol was convicted by the jury.
6 Mr Sokol was then remanded for sentencing submissions to 28 June 2002, on which day sentencing submissions were also made in respect of the applicant. Each of them was remanded for sentence to 25 July 2002.
7 Kennedy DCJ, as she then was, stated the relevant facts in imposing sentence on 25 July 2002. At 8 pm on 18 June 1999, Mr La Bianca and Mr Agostino got into a white Ford Falcon sedan which was parked in front of the Hotel Alexander at the Dianella Plaza Shopping Centre. The police apprehended them as Mr Agostino began to drive the car away. The vehicle was searched and in the boot a thermos flask was found containing a vacuum-sealed bag. Inside the bag was a brown powder that was subsequently discovered to weigh 437 grams and to consist of 58 per cent pure methylamphetamine.
8 According to the evidence given at the trial by Officer Fucile, at the time a pound of methylamphetamine at 58 per cent purity was worth about $40,000. At street level, if it was cut to the expected 3 to 5 per cent, it would be sold for $50 a point and a gram was about $150. The arrest of Mr La Bianca and Mr Agostino was said to have been the result of brilliant police work, for which the police were commended. The evidence was gathered by telephone intercepts and surveillance over a period of time and the result of that evidence was put before the jury against all four of the accused. The learned Judge described the evidence as "overwhelming".
9 The plan was that La Bianca would contact the applicant, who was in the Eastern States, on behalf of Sutton. The applicant would obtain a quantity of drugs for distribution. La Bianca was to be the middle man and Sutton to be the ultimate distributor. Sokol was an assistant and a colleague in this business of Sutton. Her Honour found that all of the participants "had an important and integral part in the ultimate distribution in the streets of this much amphetamine".
10 During the telephone intercepts, the applicant and another man made it clear that they could provide regular supplies to La Bianca, and Sutton made it clear that he wished to be in the business on a regular basis. There was a telephone intercept from a woman who was obviously a client of Sutton, who had been previously supplied and was seeking additional supplies. The applicant came from New South Wales. The
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- learned sentencing Judge was not sure why, although it was obviously a part of the drug plan.
11 In his plea in mitigation the applicant's counsel, Mr Bowden, said that the applicant brought the drugs from New South Wales. The learned Judge commented in respect of this:
"If he did, he didn't immediately hand them over. [The applicant] is first encountered in the evidence put before me when he is already with the La Biancas."
12 Subsequently, La Bianca and the applicant went to a hotel at the Dianella Plaza where they were met by Sutton who was driven by Sokol. It appears that money was handed over at that time, although no-one saw that. The applicant was then left alone in a vehicle supplied by La Bianca. A day or so earlier, La Bianca had arranged to borrow this vehicle from a motor vehicle wholesaler whom he knew.
13 The applicant was observed to drive into the country and it was known that he telephoned a farm in Gidgegannup on several occasions during this period of time. The applicant then returned to Perth and parked the vehicle in the Dianella Plaza Shopping Centre. He telephoned Sutton and advised him that the vehicle was there. The applicant then ordered a taxi and left the area. The drugs were in the boot of the car. For several hours afterwards, Sutton and Sokol made several runs around the area. Sutton telephoned La Bianca indicating that he thought there was something suspicious and the vehicle was being watched.
14 Eventually, La Bianca, Sutton and Sokol drove back together and had a look at the vehicle. Finally, La Bianca, Agostino, Sutton and Sokol drove back and La Bianca and Agostino got out of Sokol's car and went to the vehicle and commenced to drive it away. It was at that point that they were arrested. Sutton and Sokol left the scene and were subsequently apprehended, as was the applicant.
15 Passing sentence on the applicant, the learned Judge said:
"Turning now to you individually Bernard John Stapleton, you pleaded guilty to these matters but it was a very late plea of guilty. You are 58 years of age. You are a married man but separated. You have two children aged 17 and 19. Along with all the others, you seek to minimise your role in this matter. It is certainly the case that you are a person with nothing to show for your life financially.
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- You appear to have simply knocked around race tracks most of your life, living by your wits and taking what has become available to you. It seems that this opportunity became available to you and you took it. There is no indication in the telephone calls that you were in any way concerned about what you were doing or reluctant or under any sort of pressure.
Until very recently, you were working for members of your family and it seems that you have some family support in the Eastern States and indeed you have a brother here, but it's not a lot to show for your life. In your record there is no [sic] prior drug convictions and indeed the only conviction of anysignificance is a 1992 conviction for dishonesty which appears to involve about $125,000 and that may be consistent with you having a gambling problem.
It has been suggested to me that La Bianca also has a gambling problem and that is how you first encountered La Bianca, through the gambling scene in New South Wales. You have pleaded guilty. You are certainly the oldest of the offenders and you will be in your sixties when you are released and will not be able to re-establish yourself in any meaningful way and that isa matter to be taken into account.
Despite that this was a serious matter, I don't think that it was particularly sophisticated in all the circumstances and I will refer to that again later. I seriously doubt that you were to receive only $3000 for your involvement in this, but it's highly unlikely that you're the man at the top, so to speak, or you would not be delivering this much methylamphetamine. Nevertheless, you are responsible for this much methylamphetamine being available in Western Australia."
16 Her Honour then proceeded to sentence La Bianca. He was the first of the offenders to plead guilty. He was 46 years of age and married. He had two children aged 8 and 10 years respectively. He had a reasonable education and had completed an apprenticeship. He was a regular user of amphetamines. Her Honour noted that:
"In the submissions made by your counsel, there was an attempt to minimise your role in this matter. As a result of Mr Sokol's trial, I have now listened to you on the telephone to Mr Sutton and it's not possible for me to accept that view. It's quite
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- obvious that you have done this before and it's quite obvious - and I'm saying that not from the New South Wales material; I'm talking about the tapes.
It's quite obvious that you were planning to do it again. You and Mr Sutton were in fact targets of this operation. There was an intercept on your telephone line from New South Wales and there was an intercept on Sutton's line from Western Australia. Furthermorethe surveillance was on your home and Sutton's home. I note that there are two matters in relation to the possession of amphetamine in New South Wales and there's really nothing further I can do about those matters."
17 Her Honour noted that three of the four offenders were the sons of migrants which carried with it "enormous problems" inadequately recognised in our community. Mr La Bianca suffered from post-traumatic stress disorder which was a consequence of an incident in his childhood which was accompanied by:
"… chaotic and confused thought processes as well as physical symptoms generated by … [abuse of] alcohol and other substances of dependence."
18 Mr La Bianca's major problem was alcohol abuse and "probably" some amphetamine abuse and gambling. Financially La Bianca had nothing to show for what he had done on this occasion or any other occasion, having been previously declared bankrupt. He had a prior record consistent with his apparent abuse of alcohol, but mainly consisting of offences of assault, disorderly conduct and driving offences. In 1997 he was convicted in the Court of Petty Sessions for possession of prohibited drugs for which he was fined, but there were no prior convictions for drug dealing. He had been in custody in respect of the subject offences since 23 May 2002. He had been in custody for other offences since September 2001.
19 Mr Sutton was 35 years of age and divorced, but still on reasonably good terms with his former wife. He had two children. The present offence was committed while he was on bail for another offence for which he had been sentenced. The learned Judge found that Sutton was the one who was to obtain the drug and put up most of the money for it and was going to distribute it. In this context, the learned Judge commented that:
"What appeared to irritate you is the fact that in that earlier drug deal it had gone bad and that you, Sokol and another man, Sean
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- E'Maung, had been caught with that lot of drugs and,therefore,you had lost a great deal of money."
20 It was noted Sokol was already a sentenced prisoner in respect of an offence committed on 9 March 1999 when he and E'Maung went to Sydney and came back with the drug. E'Maung pleaded guilty on the fast-track system. The starting point for his sentence was 9 years and he was ultimately sentenced to 6 years and 9 months' gaol. Sokol did not plead guilty on the fast-track, but he did plead guilty and was sentenced to 8 years and 6 months' gaol. Sokol stood his trial and was convicted on 26 April 2002 of possession of 440.55 grams of methylamphetamine, 58 per cent pure, with intent to sell or supply. At the time of sentencing the learned Judge who sentenced Sutton in respect of that matter said:
"It's not possible to be satisfied beyond reasonable doubt that you were the principal force behind the acquisition and planned distribution of the drug but there can be no doubt that you were at least equally culpable and it is on that basis that you must be sentenced."
21 Kennedy DCJ said then that:
Having listened to your telephone calls and intercepts, it's quite apparent that you were a more senior offender than Sokol. Ultimately, on 26 April 2000, his Honour sentenced you to 9 years' imprisonment to commence on 17 August 2000 to give full allowance for the 611 days spent in custody."
22 Her Honour went on to say:
"You are entitled to some credit for your plea of guilty and I take into account counsel's submissions that you were really not thinking very well, that you had other matters to deal with at that time. You were simply not facing reality and facing the problems you were involved in, but once the other trial was over and you settled down to some extent, you faced these matters and pleaded guilty."
23 In Sutton's case there was a report from a psychologist, a Mr Beaton. There was also a letter from Mr Sutton himself. On the basis of these materials the learned Judge accepted that Sutton was "obviously in some sort of trouble" and that he was "almost hysterical" on occasions on the telephone when trying to arrange the drug deal the subject of the current proceedings. There was also a telephone call from a woman who had
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- obviously purchased drugs from Sutton "very recently" and was looking for more drugs. Sutton indicated to her that he would have more to sell her. Sutton had a record of offending until 1994 which "related to drinking too much". In 1994 he was convicted of cultivating cannabis with intent to sell or supply for which he was fined by the District Court. On 26 April 2002 he was sentenced to imprisonment for 9 years for a previous offence on possession of amphetamine with intent to sell or supply and the current offence of possession of amphetamine with intent to sell or supply was committed while Sutton was on bail for the earlier offence.
24 Mr Sokol was the only one of the offenders who pleaded not guilty and was subsequently tried and convicted. The learned Judge found that he was not as high "up the scale" as his three co-offenders. He was known to La Bianca, but his involvement was "as some sort of an assistant to Sutton". Sutton blamed Sokol for the fact that they had been arrested on the previous occasion and considered that it was his duty to assist Sutton and Sutton also adopted the same approach so far as Sokol was concerned. Sokol was not only a sentenced prisoner in relation to the earlier offence, but on 18 October 1996 he had been convicted of possession of amphetamines with intent to sell or supply and then sentenced to imprisonment for 2 years and 9 months. Consequently, the current offence was his third offence of possession of amphetamine with intent to sell or supply. In his case the learned Judge said:
"The only thing I can say in your favour is that the impression I got of you in the witness box and on the transcript is that you are not a man of high intelligence and you are probably easily led."
25 In relation to the previous offence, Sokol pleaded guilty, but not on the fast-track and on 18 December 2000 was sentenced to imprisonment for 8 years and 6 months, backdated to 6 August 1999. He came from a good and successful family and it was apparent that he had good family support. He had a trade as a mechanic. He had a prior record, mainly of traffic offences. However, on 18 October 1996 he was convicted of one count of possession of amphetamine with intent, seven counts of sell or supply and one count of sell or supply cannabis and was given a sentence of imprisonment for 2 years and 9 months and declared a drug trafficker. The present offence of conspiracy to sell or supply was committed while he was on bail for that earlier offence.
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26 Her Honour accepted that none of the offenders, including the present applicant, or their counsel, realised until very late how strong the Crown case was against them. Exhibit 19, being the transcripts of the telephone intercepts, "came into existence fairly late". Her Honour went on to say, however, that:
"Three of you did plead guilty, which resulted in a general saving of court time in that I was able to spend a week of that 2 weeks doing another trial. The pleas reflected the overwhelming case against you, but I am prepared to accept that they also reflect a degree of regret and some determination to get your houses in order.
The prosecutor referred to you as unsophisticated men trying to do sophisticated things and I agree with that, and it is really confirmed by the fact that none of you have anything to show for this or your other activities and, apart from the criminality, it is difficult to believe that you could have been foolish enough not to realise that you were being watched. This is an extremely serious matter and the Court of [Criminal] Appeal has made it clear that general and specific deterrence is the most important factor in sentencing you, more important than anything personal to you.
The starting point or the sentence in all the circumstances is 10 years. I have set that slightly higher than the previous 9 years specified in the other matter because the fact is I have got more knowledge about this than the other people had, because of those intercepts. In your case Mr La Bianca, taking into account the matters that I know about you, giving you credit for being the first person to plead guilty and for, in a sense, starting the ball rolling, you are sentenced to 9 years' imprisonment and you are eligible for parole, and that sentence is to commence on 23 May 2002.
In your case, Mr Stapleton, I take into account that your antecedents are better than Mr La Bianca's and there doesn't appear to have been other involvement in relation to these matters, and you are also considerably older. You are also sentenced to 9 years' imprisonment and that is to commence on 11 June [2002]."
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27 In the case of Sutton, her Honour also stated that the starting point was 10 years. In his case her Honour indicated that a discount would be given, not only for his plea of guilty but also as a result of the totality principle, taking into account that Sutton was already serving a sentence of imprisonment for 9 years for a similar offence involving 440.55 grams of similar purity. In addition, the current offence involving 877 grams was committed while Sutton was on bail for the earlier offence. Her Honour then took into account the totality principle and concluded that the total criminality warranted a sentence of 13 years and imposed a sentence of 4 years for the present offence to be served cumulatively with eligibility for parole.
28 In the case of Sokol, her Honour found that his involvement was less than the others and that he was "not a particularly enthusiastic participant". Nevertheless, he played his part and was of considerable assistance in that he spent the day driving Mr Sutton around and also put up some money toward the purchase of the drugs. He was found guilty after trial. In his case, the learned Judge indicated a starting point of 9 years, but her Honour took into account the totality principle, while at the same time noting that he had the worst antecedents of all of the offenders. Her Honour came to the conclusion that the total criminality warranted a sentence of 11½ years so that for the current offence he was sentenced to imprisonment for 3 years to be served cumulatively with eligibility for parole.
29 As is apparent, the applicant was sentenced on the basis that he obtained and supplied the drug to La Bianca for which he was paid a sum of $3000. The context was a transaction described by the Crown prosecutor as that of unsophisticated men trying to do a sophisticated thing. At the time he was sentenced the applicant, as described by the learned Judge, was a man who spent much of his life "knocking around racetracks" and "living by his wits". It was noted that the applicant would be in his sixties on release and would not be able to re-establish himself in the working years that would remain to him. It was contended that this analysis was somewhat unfair to the applicant and tended to portray him as a professional gambler, when in fact he had worked in the racing and gaming industry for most of his life and, for the most part "honourably". It was contended that in the case of the applicant and La Bianca, her Honour chose a high starting point of 10 years. In the result, however, the same discount of 1 year was deducted from the starting point for both the applicant and La Bianca, notwithstanding the applicant's better antecedents.
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30 It was also contended that it was unclear whether the learned Judge regarded the plea merely as having evidentiary value in establishing remorse, a personal factor, or whether the discount was given in respect of the benefit which the plea had in the saving in the time for a trial. The discount was not quantified.
31 It was submitted that notwithstanding the adoption of the "intuitive synthesis" approach to sentencing, having regard to cases such as Siganto v The Queen[1998] HCA 74; (1998) 194 CLR 656 and Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339, the Court should quantify the discount attributable to the plea even where the plea was late. In Cameron the High Court noted that s 8(2) of the Sentencing Act 1995 (WA) provides that the earlier in proceedings that a guilty plea is made, or indication is given that such a plea will be made, the greater the mitigation in sentence. At the same time, the fact that the offender pleaded not guilty is expressly excluded as a factor of aggravation by s 7(2)(a) of the Act. The High Court held that the reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing: per Gaudron, Gummow and Callinan JJ at [14]. Their Honours went on to say at [19]:
"Once it is appreciated that s 8(2) of the Sentencing Act is to be reconciled with s 7(2)(a), which gives effect to the common law requirement that an offender not be penalised for pleading not guilty, s 8(2) must be read as allowing that a plea of guilty may be taken into account in mitigation for the reason that a guilty plea evidences a willingness to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of criminal justice. That being so, the relevant question is not simply when the plea was entered but, as was accepted by the Court of Criminal Appeal in this matter, whether it was possible to enter a plea at an earlier time."
32 The question is not answered simply by looking at the charge sheet. The question is when it would have first been reasonable for a plea to be entered: Atholwood v R [1999] WASCA 256; (1999) 109 A Crim R 465, per Ipp J, at 468. As their Honours, referring to the remarks of Ipp J in Atholwood to which I have referred, defined the issue as one of
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- determining to what extent the plea of guilty was indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. It was acknowledged that a significant consideration on that issue was whether the plea was entered at the first reasonable opportunity.
33 Under the fast-track system, the discount in this State has often been of the order of somewhere between 20 to 25 per cent and 30 to 35 per cent: Stretton v The Queen, unreported; CCA SCt of WA; Library No 950282; 1 June 1995, per Malcolm CJ, at 5; see also De Luce v R, unreported; CCA SCt of WA; Library No 960375; 19 July 1996; and Verschuren v The Queen (1996) 17 WAR 467 at 469, per Malcolm CJ. It was then emphasised that there was no "tariff" or fixed percentage applicable to the discount to be given for a plea of guilty.
34 In my opinion, remorse is not a precondition to a reduction in sentence for a plea of guilty, but it is a relevant factor. A bare plea of guilty, even at a late stage, may well be a mitigating factor: Atholwood (supra), per Ipp J, at [9]. A late plea or a plea which is inevitable will nonetheless attract a substantial discount where it is made to facilitate the course of justice: Cardile v The Queen [2003] WASCA 72, per Wheeler J, at [45]; Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313 at [16] - [28], per McKechnie J (with whom Malcolm CJ and Anderson J agreed). In Mada v The Queen [2003] WASCA 1; (2003) 137 A Crim R 460 at [9] Murray J regarded the decision of the High Court in Cameron (supra) is making it clear that the "mitigatory power of a plea of guilty will depend upon a proper evaluation of its worth".
35 In the present case, while her Honour expressly referred to the fact that the applicant had pleaded guilty, neither the quantity or the percentage reduction of the sentence on account of the plea of guilty was identified. As was pointed out by Templeman J in Bates v Wheatley [2000] WASCA 38 at [29] - [30], s 8(4) does not specifically require the quantity or percentage of a reduction of the sentence on account of any particular factor and a plea of guilty, in particular.
36 In the guideline judgment in R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [54], Spigelman CJ discussed the issue whether Judges should quantify the effect of the plea on the sentence insofar as they believed it appropriate to do so. The New South Wales Court of Criminal Appeal held in that case that the quantification of the effect of the guilty plea:
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- "can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, eg assistance to authorities, a single combined quantification will often be appropriate."
37 In the present case the learned sentencing Judge noted that the pleas were a response to an "overwhelming case" as a result of the late production of telephone intercept evidence. Her Honour, however, said they were acknowledged as reflecting remorse in terms of a "degree of regret and some determination to get your houses in order". The reference to "regret", while somewhat unequivocal reflects the notion of remorse, but there was no specific finding whether the plea was one which facilitated the course of justice. It was contended, however, that in the absence of any specific quantification, it was not possible to say that any discount had been attributed to the plea of guilty at all.
38 As Kirby J said in Cameron (supra) at [65], the timing of a plea of guilty has a large bearing on the credit that should be given to the prisoner. A plea of guilty at the last moment (as on the day set down for the trial) will ordinarily attract a significantly smaller discount in sentence than one that is made at the first reasonable opportunity. In the present case the learned Judge rightly regarded the guilty plea as a "very late plea of guilty". The plea was entered on the day that the applicant's trial was due to commence, namely, 17 June 2002. The opinion of her Honour was that the guilty plea was a response to the "overwhelming" case against the applicant. At the same time, her Honour also accepted that the plea reflected remorse in the sense to which I have referred. Her Honour also acknowledged that the change of plea resulted in a general saving of court time, although this is a factor of a utilitarian character.
39 It is apparent, from the adoption of a starting point of 10 years that the learned sentencing Judge discounted the sentence by 10 per cent on account of all mitigating circumstances, including the plea of guilty. Having regard to the lateness of the plea and the strength of the prosecution case, conviction of the applicant was inevitable. In these circumstances, I am unable to accept that any greater discount was justified. For these reasons, ground 1 fails.
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Ground 2: Discount for Personal Factors
40 It was acknowledged by counsel for the applicant that methylamphetamine has been held to be in the upper hierarchy of seriousness of drug-trafficking offences: R v Bellissimo (1996) 84 A Crim R 465 at 471 per Anderson J; and R v Darwell (1997) 94 A Crim R 35 at 40 per Malcolm CJ (with whom Kennedy and Franklyn JJ agreed). In such cases matters personal to an offender are of much less relevance than in other cases. The learned sentencing Judge acknowledged that the applicant's role in the transaction was less than that of La Bianca and that the applicant had better antecedents; the enterprise was unsophisticated; the applicant was to receive small reward; his age and working life expectancy were such that he would have little prospect of employment on release.
41 It was contended that her Honour did not acknowledge, nor apparently give credit for the fact that the applicant had facilitated justice by his voluntarily arranging his return from Victoria, requiring that he discharge himself from hospital, as soon as he was able to do so. It was on this basis that it was submitted that the small magnitude of the discount simply reflected a failure to give sufficient overall weight to these personal factors, particularly the applicant's age upon release and how this might affect his prospects of rehabilitation in the longer term, with the result that there had been error in the exercise of the sentencing discretion.
42 As has been seen, her Honour took into account the personal antecedents of the applicant, including his age, marital status and the fact that he had two teenage children; that he had been working until recently; he had family support in the Eastern States; his record showed no prior convictions for drug offences; he would be in his sixties when released; and that it was unlikely he was the "man at the top".
43 Methylamphetamine is now regarded as falling within the same general category of dangerous drugs as heroin. In this context personal and general deterrence are important factors: Collier v The Queen [2001] WASCA 69 at 5, per Kennedy, Wallwork and Miller JJ. This Court has made it clear that it is normally futile to argue that personal circumstances and antecedents provide any significant mitigation where an offender consciously and deliberately participates in the heroin trade: Quach v R [1999] WASCA 210; R v Ruich [2000] WASCA 84; R v Munro [2000] WASCA 285. The consequence is that that in the case of serious drug offences, matters personal to an offender are accorded very little weight: Watson v The Queen [2000] WASCA 119 at [102], per Malcolm CJ.
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44 In Cameron (supra) and Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [76] Gaudron, Gummow and Hayne JJ, after referring to the judgment of Spigelman CJ in R v Thomson (supra) at [54] - [113], noted that the weight of authority in the intermediate Appellate Court of Australia is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach. Their Honours went on to say in the same paragraph:
In this Court, McHugh and Hayne JJ, in dissenting opinions in AB v The Queen ((1999) 198 CLR 111 at [15] - [18] per McHugh J; and at [115] per Hayne J) expressed the view that the adoption of a two-stage approach to sentencing was wrong. Kirby J expressed a contrary view (AB v The Queen (1999) 198 CLR 111 at [99] - [100]). We consider that it is wrong in principle. The nature of the error can be illustrated by the approach adopted by the Court of Criminal Appeal in these matters. Under that approach, the Court takes, for example, the offender's place in the hierarchy and gives that a particular significance in fixing a sentence but gives the sentencer no guidance, whatever, about whether or how that is to have some effect on other elements which either are to be taken into account or may have already been taken into account in fixing the guideline range of sentences. To take another example, to 'discount' a sentence by a nominated amount, on account of a plea of guilty, ignores difficulties of the kind to which Gleeson CJ referred in R vGallagher ((1991) 23 NSWLR 220 at 228) when he said that:
'It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will only be artificial and contrived but will also be illogical.'
So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform."
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45 Quantification of particular discounts has clearly been discouraged by the High Court. If it is considered by the legislature that there is utility in specifying the amount of a particular discount in respect of a particular factor, then legislation of the kind which has been enacted in relation to assistance to law enforcement authorities contained in s 8(5) and s 37A of the Sentencing Act is required.
46 In the present case the most important factor in the sentencing was the need for general and specific deterrence. In my opinion, this outweighed all other factors. Her Honour found that the applicant sought to minimise his role and that he was responsible for the amount of methylamphetamine that had been made available in Western Australia in this case. Her Honour noted that there was "no indication in the telephone calls that you were in any way concerned about what you were doing or reluctant or under any sort of pressure". A sentence in the range of between 10 and 15 years' imprisonment for very serious drug offences where large quantities are involved are not uncommon: cfKezkiropoulos v The Queen [2002] WASCA 352; Cameron v The Queen [2000] WASCA 286; Quach v R(supra); and Aconi v The Queen [2001] WASCA 211. In my opinion, the sentence of imprisonment for 9 years in this case was well within the appropriate range of sentences. Having regard to the quantity, purity, value of the drug, both in its pure form and after it had been cut, and the fact that the applicant made it clear that he could provide to the others involved regular supplies from the Eastern States, all combined to result in a sentence which, in my opinion, was well within the appropriate sentencing range. For these reasons I would dismiss the application for leave to appeal against sentence.
47 WHEELER J: I have had the advantage of reading in draft the reasons for decision of the Hon the Chief Justice. I agree with his Honour's conclusions and I too would dismiss this application.
48 MCKECHNIE J: Counsel for the applicant nominated the central point of the application by posing three questions:
• whether the learned sentencing Judge gave any weight at all to the late plea of guilty that was entered by the applicant; and
• if weight was given, whether that weight was adequate; and
• if no weight in reality was given to the late plea of guilty, whether this is an error which justifies the interference of this Court?
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49 The applicant was charged that on 18 June 1999 at Dianella he supplied methylamphetamine to another. This was count 1 on a three count indictment which followed the methylamphetamine through other hands. An indictment was presented on 18 June 2001, exactly two years after the incident. Almost exactly one year after that date, and three years after the offence, on 17 June 2002, the applicant pleaded guilty on the first day of the adjourned trial. The trial had been listed to commence on 4 June but, because the applicant was involuntarily hospitalised in Victoria, the trial was delayed. As soon as he was able to discharge himself from hospital, the applicant did so and arranged his return to Western Australia, privately, and surrendered himself into custody. He pleaded guilty on 17 June 2002. Without question this was, as the sentencing Judge acknowledged, a very late plea of guilty.
50 The applicant brought 437 grams of 58 per cent pure methylamphetamine, worth about $40,000, to Western Australia to be distributed by La Bianca and his allies. In the course of telephone intercepts the applicant made it clear that he could provide regular supplies to La Bianca. In these circumstances, personal antecedents, and other matters of mitigation, play a comparatively small role. On the other hand, the deterrent aspects of sentencing, both personal and general, are important factors. A sentence of 10 years' imprisonment for the nature of the crime as articulated by the sentencing Judge is within the general range of sentences commonly imposed for like offences: Kezkiropoulos v The Queen [2002] WASCA 352; Quach v R [1999] WASCA 210; Aconi v The Queen [2001] WASCA 211. I do not regard a sentence of 10 years' imprisonment as beyond the range of a sound sentencing discretion or indicative of error. However, the Judge did not impose such a sentence. The sentence imposed was one of 9 years' imprisonment. The reduction can only be explained on the basis that the Judge took into account, to a degree, the plea of guilty.
51 Apart from the fact that the Sentencing Act s 8(2) requires a plea of guilty to be taken into account, common sense would indicate that there is always some mitigatory effect in a plea of guilty. Whether or not it reflects genuine remorse, a plea of guilty generally aids the administration of justice and there is a public interest why it should be acknowledged. That does not mean, however, that a plea of guilty should always carry a defined percentage of sentence reduction. There may be good reason why a plea of guilty at the earliest available opportunity does attract a sentence reduction, normally between 25 and 35 per cent. An early plea of guilty maximises the benefit to criminal justice. Victims, where there are
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- victims, are able to get on with their lives more quickly. Expensive resources do not have to be employed in preparing and presenting a case for prosecution. It is appropriate that it is known by the community, and legal profession, that an early plea of guilty will make a real difference to a sentence.
52 The same considerations apply with less force to a late plea of guilty. This case is an example. It may be, as her Honour accepted:
"…that none of you or your counsel realised until very late in the piece how strong the crown case was against you, to enable serious consideration to be given to a plea of guilty…"
53 She noted:
"…The pleas reflected the overwhelming case against you, but I am prepared to accept that they also reflect a degree of regret and some determination to get your houses in order."
54 However, a plea of guilty is one factor in the mix of factors, required to be taken into account by a judge in determining an appropriate sentence. Where the plea is not made at the earliest opportunity, it may be impossible to assign a percentage to the weight to be accorded to a plea of guilty, in combination with the weight to be accorded to the other factors. The failure to assign a percentage to a late plea of guilty is no error. An appeal will only succeed where the final sentence manifests error: Grimwood v The Queen [2002] WASCA 135. In my opinion, the sentence of 9 years' imprisonment for the particular features of this crime, and having regard to the antecedents of the applicant, is not in error whatever weight the Judge assigned to the various factors which affect sentence. I would grant leave but dismiss the application for leave to appeal against sentence.
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