Townsend v The Queen
[2001] WASCA 249
•13 JUNE 2001
TOWNSEND -v- THE QUEEN [2001] WASCA 249
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 249 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:36/2001 | 13 JUNE 2001 | |
| Coram: | KENNEDY J STEYTLER J MILLER J | 13/06/01 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| D | |||
| PDF Version |
| Parties: | TROY ADAM TOWNSEND THE QUEEN |
Catchwords: | Criminal law Sentence Drug offences Parity Totality principle Turns on own facts |
Legislation: | Nil |
Case References: | Cabasi v R [2000] WASCA 305 Jarvis v R (1993) 20 WAR 201 R v Nobes, unreported; CCA SCt of WA; Library No 980097; 5 March 1998 R v Schuster, unreported, CCA SCt of WA; Library No 970180; 23 April 1997 R v Ward (1999) 109 A Crim R 159 Savvas v R (1995) 129 ALR 319 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : TOWNSEND -v- THE QUEEN [2001] WASCA 249 CORAM : KENNEDY J
- STEYTLER J
MILLER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentence - Drug offences - Parity - Totality principle - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
(Page 2)
Category: D
Representation:
Counsel:
Applicant : Mr S D Hall
Respondent : Mr K M Tavener
Solicitors:
Applicant : Pryles & Defteros
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cabasi v R [2000] WASCA 305
Jarvis v R (1993) 20 WAR 201
R v Nobes, unreported; CCA SCt of WA; Library No 980097; 5 March 1998
R v Schuster, unreported, CCA SCt of WA; Library No 970180; 23 April 1997
R v Ward (1999) 109 A Crim R 159
Savvas v R (1995) 129 ALR 319
Case(s) also cited:
Nil
(Page 3)
1 KENNEDY J: I invite Miller J to deliver his reasons.
2 MILLER J: The applicant was charged with others on an indictment which alleged one count of conspiracy to manufacture a prohibited drug, namely, methylamphetamine and one count of conspiring with another to engage in a transaction that involved money that was the proceeds of a major offence. He was also charged on another indictment with one count of possession of a quantity of heroin with intent to sell or supply to another.
3 On these counts he came before the District Court at Perth on 19 January 2001. He pleaded guilty to the counts of conspiracy to manufacture amphetamines and conspiracy to engage in money laundering. In relation to the single count on the separate indictment he pleaded guilty to possession of heroin. This plea was accepted by the Crown in full satisfaction of the indictment.
4 After hearing substantial submissions on penalty on 19 January the learned trial Judge remanded the applicant for sentence until 20 February 2001. On that day he was sentenced to an effective term of imprisonment of 14 years, being 12 years' imprisonment for the offence of conspiracy to manufacture amphetamines, 2 years' imprisonment for the offence of conspiracy to engage in money laundering and 1 year for the offence of possession of heroin.
5 The sentences of 12 years and 2 years were made cumulative, but the sentence of 12 months was ordered to be served concurrently. The applicant was ordered to be eligible for parole.
6 The applicant seeks leave to appeal against the sentences so imposed on the following grounds:
(1) the sentence of 2 years' imprisonment for conspiracy to engage in money laundering was manifestly disparate to the sentence imposed upon the applicant's co-accused who had been fined the sum of $2500 for that offence.
(2) the total effectively sentence infringed the principle of totality in sentencing; and
(3) each of the sentences imposed was manifestly excessive having regard to the following factors
(a) failure to give sufficient weight to the plea of guilty and cooperation with authorities,
(Page 4)
- (b) failure to give weight to the fact that the applicant was drug addicted,
(c) failure to give sufficient weight to the applicant's age, antecedents and family circumstances,
(d) failure to give sufficient weight to the applicant's psychological condition.
7 In the course of his sentencing comments the learned trial Judge highlighted a number of matters. His Honour pointed out that in relation to the offence of conspiracy to manufacture amphetamines, the applicant was caught in the early stages of the conspiracy. There were at least three other co-offenders who conspired to manufacture the drug. It was accepted that the applicant may himself have had a limited knowledge of the chemical processes necessary to manufacture the drug and relied upon a co-conspirator who had the necessary skills. The applicant was, however, the principal organiser of the enterprise and gave the instructions and sourced the funds for the purchase of equipment, ingredients and payment for leasehold premises.
8 His Honour concluded that the applicant also drew in other persons in an effort to have them obtain supplies of chemicals. Had the venture been successful, the desired production of 5.5 kilograms of methylamphetamine of 70 to 80 per cent purity would not necessarily have been attained, but it was likely that methylamphetamine in a sufficient quantity to return something of the order of $3.6 million to the conspirators would have been produced. The applicant was, however, arrested before he had been able to obtain all necessary ingredients and materials and thus had some way to go before the manufacturing process could commence.
9 In relation to the offence of conspiracy to engage in money laundering a number of findings were made. His Honour pointed out that the applicant was found with $101,000 in money in his possession and other assets that represented the proceeds of illicit drug dealing. On 27 January 1999 the applicant was telephoned by an aunt who knew that he wished to launder funds. She asked for a loan of $20,000 - $30,000 and the applicant agreed to lend it to her on the basis that she repaid it interest free at the rate of $1000 per month. There was evidence that this was not an isolated occurrence.
10 In relation to the possession of heroin offence, at the time of his arrest on 8 December 1999 the applicant was found in possession of two small packages of heroin. He was in the process of trying to swallow
(Page 5)
- them. They were retrieved and found to contain 3.08 grams of heroin. There was another package in his pocket which contained .932 of a gram of heroin.
11 The learned sentencing Judge took into account the applicant's antecedents. He had before him a pre-sentence report, a psychiatric report and a psychological assessment. His Honour noted that from the age of 13 years the applicant had commenced to accumulate a significant criminal record. In 1994 he was first convicted of an offence involving drug dealing for which he was sentenced to 12 months' imprisonment. It was cultivation of cannabis with intent to sell or supply. There had been numerous subsequent sentences of imprisonment, including one for 12 months in 1997 for possession of amphetamines with intent to sell or supply to others.
12 At the time the applicant committed the offences which were before the court the applicant's primary motivation was that of commercial gain in relation to drugs. Although the applicant had a history of addiction to drugs, and this was a contributing factor to his commission of offences, he had become a successful commercial dealer in drugs by the time of his arrest. Indeed, telephone intercepts revealed what his Honour termed a hard-headed and remorseless attitude towards customers in the area of drug dealing generally.
13 The learned sentencing Judge made reference to the evils of amphetamine and other illicit drug trade. He took the view that the applicant had to be dealt with severely. His Honour mistakenly thought that the maximum penalties for conspiracy to manufacture methylamphetamine and conspiracy to engage in money laundering were 25 and 20 years respectively, whereas they were 20 years and 14 years. It appears that his Honour referred to the penalties for the the substantive offences. In the end I do not consider this misapprehension on his Honour's part to be significant.
14 The learned Judge took into account the decisions of the Court of Criminal Appeal in R v Schuster, unreported, CCA SCt of WA; Library No 970180; 23 April 1997 and R v Nobes, unreported; CCA SCt of WA; Library No 980097; 5 March 1998. Counsel for the Crown had during the course of her submissions made reference to these cases and submitted that it could be extracted from them that for conspiracy to manufacture methylamphetamine by a person who was the principal offender a starting point of something like 15 years was appropriate. The trial Judge was urged to consider something more in the applicant's case.
(Page 6)
15 The applicant has sought to compare this case with the cases of Schusterand Nobes. However, the role played by Schusterand Nobeswas clearly that of something less than a principle in each case. Indeed the trial Judge observed when sentencing in relation to Schusterthat a sentence of about 15 years should be imposed on those principally involved in a conspiracy of this nature. In the Court of Criminal Appeal there appears to be no argument with that proposition.
16 Essential to the submissions of counsel for the applicant today is the contention that the applicant had only a remote prospect of effecting the conspiracy in question. It was put that he was basically an amateur with little chance of obtaining the materials he required for the project. However, the appellant was to be sentenced for the degree of criminality involved in his participation in the conspiracy: Savvas v R(1995) 129 ALR 319 at 324. It cannot be that the Court should examine and conclude what prospects there were of success in the venture. The appellant intended to effect the purpose of the conspiracy and that in my view was his criminality.
17 The learned trial Judge took the view that the appropriate starting point for the applicant in relation to the conspiracy to manufacture amphetamines was 16 years' imprisonment. Allowing for his plea of guilty and cooperation that sentence was reduced to 12 years. In my view, although a substantial sentence, it cannot be said that the sentence was manifestly excessive. The applicant was found to be a principal offender in relation to the conspiracy and there was nothing that could be said for him in relation to his antecedents.
18 Although the applicant had a significant personality disorder and required substantial rehabilitation, the offence committed was independent of his drug addiction in the sense that it was not committed to feed him with drugs, but for substantial commercial reward.
19 Although the grounds of appeal suggest that the applicant's psychological condition is such that imprisonment will be a greater burden upon him than upon others, a psychological report of Dr Pullela indicates that therapeutic intervention programs can be facilitated for the applicant in prison through the Justice, Psychiatric and Psychological Services.
20 In my view, the learned sentencing Judge was correct to point to the great evils of the trade in methylamphetamines and to have taken the view that a severe deterrent sentence was called for in this case. The fact that
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- the venture had the potential to reap a reward of millions of dollars was a relevant consideration: Cabasi v R[2000] WASCA 305 per Wheeler J at [17].
21 In relation to the offence of conspiracy to engage in money laundering, his Honour concluded that the proceeds used for the purposes of money laundering arose from dealing in illicit drugs, but accepted that the amount involved in this particular conspiracy was not huge. His Honour accepted too that the proposed transaction, the subject of the conspiracy, was not effected. His Honour made reference to the fact that the applicant's co-offender received only a fine for her part in the offence, but observed that she had no prior convictions, was a mature woman with good antecedents and worked as a school teacher. His Honour took the view that the sentence imposed on her had no bearing on the sentence to be imposed upon the applicant and with these observations I agree. The applicant was the moving force in relation to the conspiracy to engage in money laundering. It was he who had the proceeds of crime available for money laundering.
22 It is obvious that parliament has taken the view that the offence of conspiring to engage in money laundering is to be treated seriously. A maximum of 14 years' imprisonment makes that clear. In this case the starting point adopted by the trial Judge was 4 years, which was reduced to 2 years having regard to the plea of guilty and cooperation. In my view that could not be said to have been excessive. The applicant's circumstances were entirely different from those of his aunt and there was, in my view, no disparity in the sentences respectively imposed upon him and the aunt.
23 The sentence of 2 years' imprisonment for conspiracy to engage in money laundering was, in my view, properly made cumulative upon the sentence for conspiracy to manufacture amphetamines. It was a separate and discrete offence which had been committed before the conspiracy to manufacture methylamphetamine: R v Ward (1999) 109 A Crim R 159 per Malcolm CJ at par 9.
24 The sentence of 12 months' imprisonment for possession of heroin was, on any view of it, within the range of sentences that could have been imposed having regard to the extensive record of the applicant, which included numerous offences for possession of prohibited drugs.
25 In my view, the overall sentence of 14 years' imprisonment, although a substantial sentence, cannot be said to have been outside the exercise of
(Page 8)
- a proper sentencing discretion, nor did it offend the totality principal. I accept the submissions of the Crown that it appropriately reflected the total criminality displayed by the applicant and was not such a crushing sentence as to leave him no hope for the future. Nor could it be said to provoke any feeling of hopelessness in the offender if and when released or destroy a reasonable expectation of useful life after release: see Jarvis v R (1993) 20 WAR 201 per Ipp J at 205. Accordingly I would refuse the application for leave to appeal.
26 KENNEDY J: I agree.
27 STEYTLER J: I also agree.
28 KENNEDY J: The order of the court then will be that leave to appeal will be refused.
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