Tricoli v The State of Western Australia
[2011] WASCA 74
•4 APRIL 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TRICOLI -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 74
CORAM: McLURE P
PULLIN JA
HEARD: 17 MARCH 2011
DELIVERED : 4 APRIL 2011
FILE NO/S: CACR 193 of 2010
BETWEEN: MICHAEL GUISEPPE TRICOLI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCOTT DCJ
File No :IND 1139 of 2010
Catchwords:
Criminal law - Application for leave to appeal - Possession of cocaine with intent to sell or supply
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms A S Rogers
Respondent: No appearance
Solicitors:
Appellant: Andrew Maughan & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49
Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465
McDougall v The State of Western Australia [2009] WASCA 232
Monument v The State of Western Australia [2007] WASCA 239
Ngo v The State of Western Australia [2007] WASCA 221
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
REASONS OF THE COURT: The appellant applies for leave to appeal against a sentence of 6 years' immediate imprisonment imposed in relation to a charge of possession of 436.59 grams of cocaine (with a purity in the main of 68%) with intent to sell or supply. At the same time he was convicted of the offence of possession of unlawfully obtained property. He was sentenced to 3 months' imprisonment to be served concurrently with the sentence in relation to the cocaine offence. The appeal only concerns the sentence in relation to the cocaine offence.
The appellant seeks leave to appeal on two grounds. The first is that the sentence was manifestly excessive because the sentencing judge's discretion miscarried because the sentence was outside the range of sentences customarily imposed with respect to such an offence. The second alleged an error of fact by the trial judge in finding that the appellant was 'in the upper level of the business enterprise'.
The judge's sentencing remarks
The sentencing judge noted that the maximum penalty was 25 years' gaol or a $100,000 fine. He observed that the appellant commenced using cocaine in 2008; that he was 32 years of age and came from a stable family; that he had been generally employed; had been educated to Year 12 and was single. The sentencing judge noted that since his apprehension he had received counselling and treatment and had seemed to have stopped taking any illicit drugs. There was no prior record and he had pleaded guilty at the earliest opportunity for which the trial judge afforded him a substantial discount on the sentence which would otherwise have been imposed. The sentencing judge noted the relevant sentencing factors of personal deterrence and general deterrence, noted that cocaine is one of the hard core drugs and that while matters personal to the offender are relevant, they play a lesser role in sentencing than with respect to some other offences. The sentencing judge then remarked:
[I]t was not until 2008 that you were introduced to and thereafter became addicted to cocaine. You were introduced to it after a relationship break‑up which saw you move in different circles.
As I say, it seems likely that the person who owned the cocaine saw you, a person with a clean record, as someone who could provide a safe haven for the cocaine. He may have seized upon your vulnerability, insofar as your use was concerned, in giving you the opportunity to use part of the cocaine yourself in return for which you would give him a key to the premises.
You would physically supply the cocaine, or some of it, and take payment which would be remitted to the owner. To that end, as I say, you were, in my view, clearly more than just a bailee.
The amount of the cocaine held by you was substantial. It was a purity in the main of 68 per cent. This mean that it would be sold to those who would cut it in readiness for on sale to users in the community. And whilst the quantity is not a determining factor in sentencing, it is an important factor, as is your role (ts 33 ‑ 34).
The sentencing judge then referred to a number of decisions of this court, which were indicative of the range of sentences for this type of offence. They were McDougall v The State of Western Australia [2009] WASCA 232; Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107; Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 and Ngo v The State of Western Australia [2007] WASCA 221. His Honour said that this was serious case of drug trafficking and that the appellant was in the 'upper level of the business enterprise'. His Honour added:
I say that because of the fact that the cocaine was secured at your premises and you were involved in the supply and taking of funds. You were more than just a bailee, and you're in a different capacity than even a courier (ts 34).
He then sentenced the appellant to 6 years' immediate imprisonment and made him eligible for parole.
In relation to the first ground of appeal, the appellant's written submissions referred to a number of Court of Appeal authorities, the most recent of which were Ngo and Monument v The State of Western Australia [2007] WASCA 239 and which conceded that these showed a range of sentences similar to that received by the appellant. The appellants' written submissions contended that they involved aggravating factors absent from the circumstances of this case. However, the submissions made merely pointed to particular circumstances which prevailed in those cases. Circumstances will of course always vary and there was nothing of significance that the appellant pointed to which would make this a case with unusual features which would warrant a reduced sentence. The range of sentences that has been imposed in the past does not fix the boundaries within which judges must or ought to sentence. However, they provide guidance to sentencing judges and stand as a yardstick against which to examine the sentence which was imposed. Consistency in sentencing is an important sentencing principle: Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465, [54] and [56]. Possession of a large quantity of cocaine often attracts sentences of up to 10 years' imprisonment. The quantity in this case can be described as a 'large' quantity.
There is nothing in the circumstances of this case that indicated that this sentence was manifestly excessive having regard to the range of sentences customarily imposed for similar types of offences.
As to the second ground, it was explained by counsel for the appellant that he was a drug addict unable to fund his habit and that his assistance was out of a need to feed his drug addition. It was then submitted that the sentencing judge should have sentenced the appellant on the basis he was playing a minor role and was not 'an integral party to a high level commercial enterprise' (which misstates the finding) and the submissions pointed to the fact that counsel for the State said that it was prepared to accept that the appellant be sentenced 'on the basis asserted by [the appellant] as to the facts'. That involved an acceptance of what was said by defence counsel which was that he was more than 'just a bailee' and that:
… he was involved in selling cocaine … he was involved in storing the cocaine but … he wasn't profiting from any of this, other than being able to fund his own habit without having to shell out his own cash (ts 12).
When his Honour said that he was involved in the 'upper level of the business enterprise' he then explained what this meant, namely that:
The cocaine was secured at [the appellant's] premises and that [the appellant] was involved in the supply and taking of funds [and] … [the appellant was] more than just a bailee (ts 34).
Thus the judge's findings of fact reflected what the appellant admitted the situation to have been. The mere fact that the appellant was a drug addict did not mean that a lesser sentence should have been imposed: Ngo [28]. There was no error as alleged in ground 2.
As a result, neither ground has a reasonable prospect of succeeding (see Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473). Leave to appeal should be refused, and the appeal should be dismissed.
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