Vodanovich v The Queen
[2003] WASCA 196
•4 AUGUST 2003
VODANOVICH -v- THE QUEEN [2003] WASCA 196
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 196 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:16/2003 | 4 AUGUST 2003 | |
| Coram: | STEYTLER J MILLER J PULLIN J | 4/08/03 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted Leave to appeal granted Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | JUSTIN PAUL VODANOVICH THE QUEEN |
Catchwords: | Criminal law Sentence Drug offences Whether accumulation of sentences offended totality principle Turns on own facts |
Legislation: | Misuse of Drugs Act 1981 (WA) s 6(1)(c) |
Case References: | Jarvis v R (1998) 20 WAR 201 R v Bellissimo (1996) 84 A Crim R 465 Gavin v R (1992) 6 WAR 195 Kirby v The Queen [2003] WASCA 164 Mill v The Queen [1988] 166 CLR 59 Musarri v The Queen, unreported; SCt of WA; Library No 980662; 17 November 1998 Pearce v The Queen [1998] 194 CLR 610 Postiglione v The Queen [1997] 189 CLR 295 Sikaloski v The Queen [2000] WASCA 387 Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 Watt v The Queen [2000] WASCA 354 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : VODANOVICH -v- THE QUEEN [2003] WASCA 196 CORAM : STEYTLER J
- MILLER J
PULLIN J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentence - Drug offences - Whether accumulation of sentences offended totality principle - Turns on own facts
Legislation:
Misuse of Drugs Act 1981 (WA) s 6(1)(c)
(Page 2)
Result:
Extension of time granted
Leave to appeal granted
Application dismissed
Category: B
Representation:
Counsel:
Appellant : Ms A G Braddock SC
Respondent : Mr D Dempster
Solicitors:
Appellant : Andree Horrigan
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Jarvis v R (1998) 20 WAR 201
R v Bellissimo (1996) 84 A Crim R 465
Case(s) also cited:
Gavin v R (1992) 6 WAR 195
Kirby v The Queen [2003] WASCA 164
Mill v The Queen [1988] 166 CLR 59
Musarri v The Queen, unreported; SCt of WA; Library No 980662; 17 November 1998
Pearce v The Queen [1998] 194 CLR 610
Postiglione v The Queen [1997] 189 CLR 295
Sikaloski v The Queen [2000] WASCA 387
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Watt v The Queen [2000] WASCA 354
(Page 3)
1 STEYTLER J: I will ask Miller J to deliver the first set of reasons.
2 MILLER J: This is an application for an extension of time within which to appeal and for leave to appeal against a sentence imposed upon the appellant in the District Court of Perth on 22 November 2002. The appellant had been charged on indictment that on 24 May 2000 at Morley he sold or supplied a quantity of a prohibited drug, namely methylamphetamine, to another contrary to the provisions of s 6(1)(c) of the Misuse of Drugs Act 1981 (WA).
3 He pleaded not guilty to the offence but was convicted by a jury on 15 November 2002. After hearing submissions on behalf of the appellant, the learned trial Judge adjourned the matter until 22 November 2002 when he pronounced sentence.
4 His Honour pointed out that for the offence for which the appellant was convicted he was liable to be fined $100,000 and/or imprisoned for a term not exceeding 25 years. His Honour rightly stressed that the principal sentencing consideration before him was one of deterrence.
5 The facts of the matter were recited by the learned trial Judge. They revealed that on 17 May 2000 a co-accused of the appellant had obtained a significant quantity of methylamphetamine. In order for the co-accused to supply it to another, the appellant was engaged to collect 6 ounces of the drug from a man named Colman and then to provide it to a man named Kirby, at Beaurepaires Morley.
6 At these premises the appellant put the drug in Kirby's motor vehicle. The vehicle was later stopped on Tonkin Highway, searched, and the drug found. It consisted of 166 grams of methylamphetamine of 30 per cent purity, which the trial Judge found to be an extremely high level of purity, thus making the drug capable of being cut considerably.
7 The learned trial Judge reviewed the roles played by the different accused in the transaction and pointed out that the appellant was in a slightly different or better position than his co-accused. His Honour found that the appellant was younger, was an employee of one of the co-accused and (although misguided) was probably malleable at the co-accused's direction. His Honour said:
"Although clearly culpable, your degree of participation and the reason for it puts your criminality at a slightly lower level than the others."
(Page 4)
8 The learned trial Judge took into account matters personal to the appellant, pointing out that he was born in August 1976 and was 26 years of age. His Honour referred to materials which had been supplied and reiterated that the appellant could be looked at more benevolently than his co-accused, primarily because of his age but also because he may to some extent have been pressurised by the co-accused Musarri, who was his employer. His Honour described the appellant's role as "courier and messenger of Musarri".
9 The learned trial Judge expressed the view that were it not for other sentences being served by the appellant, he would have been sentenced to 6 years' imprisonment. His Honour took into account the fact that the appellant was serving a term of 6 years 3 months' imprisonment which he said commenced in February 2000. Taking into account the totality principle, his Honour directed that the appellant serve 3 years' imprisonment (with eligibility for parole) to be served cumulatively on the sentences being served. Reference to the year 2000 was clearly an error on his Honour's part or an error in transcription. It should read "2002".
10 The appellant's application for extension of time within which to appeal is supported by an affidavit which indicates that he obtained advice from one lawyer but then sought a second opinion from another and this delayed his notice of appeal by some months. In the circumstances I would grant an extension of time for the filing of the application to the date upon which it was filed.
11 There are two grounds upon which it is sought to appeal the sentence imposed by Wisbey DCJ on 22 November 2002. The first is that the learned trial Judge erred by failing to properly apply the totality principle and the second is that the sentence imposed was, in the circumstances, crushing to the appellant.
12 The history of the matter is that the appellant was sentenced on 27 February 2002 in the District Court to a term of 3 years' imprisonment with eligibility for parole for supplying a prohibited drug, namely, amphetamine, to another. That offence occurred on 20 July 2000, approximately two months after the offence the subject of the present appeal.
13 Although the appellant sought leave to appeal against the sentence imposed on 27 February 2002, that application has been abandoned. On 12 August 2002 the appellant was again convicted in the District Court at Perth in relation to a drug offence. On this occasion he was convicted of
(Page 5)
- the offence of conspiring with others to possess a quantity of a prohibited drug, namely, heroin, with intent to sell or supply it to another. That offence occurred between 16 May 2000 and 27 May 2000 at Perth. The time period thus overlapped with the date upon which the offence the subject of this appeal occurred.
14 In the District Court, Kennedy DCJ sentenced the appellant on 3 September 2002 to a sentence of 5 years' imprisonment but having regard to the fact that the appellant had served 21 months of that period, the sentence became one of 3 years 3 months with parole. It was ordered to be served cumulatively on the sentence then being served, namely, the sentence of 3 years imposed by Yeats DCJ in the District Court on 27 February 2002.
15 It follows that, when the appellant was sentenced by Wisbey DCJ on 22 November 2002, the addition of another 3 years brought to a total of 9 years 3 months the sentence that he was obliged to serve, with effect from 27 February 2002.
16 The appellant argues that when Wisbey DCJ sentenced the appellant on 22 November 2002, his Honour failed to appreciate that the appellant had been in custody from 4 October 2000 to 7 February 2002, with the result that his Honour erred in concluding that the appellant would serve 9 years 3 months total sentence. It is argued that the effective sentence was in fact 11 years.
17 His Honour was, however, told that the appellant had been in custody for 21 months before being sentenced by Kennedy DCJ and that is apparent from Ms Braddock's submissions during the course of the sentencing process. His Honour also had before him Kennedy DCJ's sentencing comments in which she made it quite clear that that was the case.
18 The question then is whether for the three drug offences committed by the appellant a total term of imprisonment of approximately 11 years with eligibility for parole was excessive in that it offended the totality principle and/or constituted a crushing sentence.
19 The sentence was undoubtedly severe. In Jarvis v R (1998) 20 WAR 201, Ipp J, at 206 - 207, set out clearly the principles which relate to the question whether a sentence offends the totality principle or can be said to be crushing. As his Honour there pointed out:
(Page 6)
- "The crushing effect of a term of imprisonment is merely one of the mitigating factors that is to be taken into account when determining whether a particular term of imprisonment is proportionate to the criminality evinced.
While the subjective effect of a cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance. The difficulty expressed in Vaitos (at 301) by O'Bryan J with the concept that a richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigatory force.
The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: see Veen v The Queen (No 2) (1988) 164 CLR 465; Evangelista v The Queen; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika (1986) 83 FLR 312."
20 In the present case the appellant committed three very serious drug offences in close proximity to each other in the year 2000. It is relevant that the appellant was very much involved in the drug trade in relation to offences involving both amphetamine and heroin. In relation to the first offence he supplied 166 grams of amphetamine, in relation to the second he was involved in a conspiracy to possess with intent to sell or supply 500 grams of heroin and in relation to the third, he supplied 7 grams of amphetamine. These were all significant quantities of hard drugs and it is relevant to repeat what was said by Anderson J in R v Bellissimo (1996) 84 A Crim R 465 at 471:
"The major sentencing considerations for offences of trafficking in dangerous drugs of addiction such as amphetamines, cocaine and heroin are general and personal deterrents, the major objective being to stop people doing it. It is quite obvious to anyone concerned with criminal justice administration that trafficking in amphetamines is rife in this State and part of its tragedy is that very young people in the community are being exposed to it. This has caused widespread community concern. The sentences that have been imposed in the past do not seem to have worked as a deterrent."
(Page 7)
- What his Honour said about the tragedy of trafficking in amphetamines is as valid today as it was in 1996.
21 Although the sentences in the present case were severe and the total period to be served by the appellant is very substantial, it cannot be ignored that he has operated as a drug dealer in the area of dangerous and potentially harmful narcotic drugs and in the full knowledge of the fact that he was committing three consecutive offences.
22 In my view, the sentence imposed by Wisbey DCJ on 22 November 2002 did not offend the totality principle and was not such as to have a crushing effect on the appellant. The totality principle was specifically taken into account by his Honour. The appellant was deserving of severe punishment and notwithstanding any misapprehension that Wisbey DCJ may or may not have had about the total sentence to be served, I am unable myself to conclude that the sentence was manifestly excessive as contended for by the appellant.
23 I would only add this, having regard to Ms Braddock's outline of submissions: the fact that the co-accused may have received the same discount for totality does not, in my view, affect the appellant's position. The end result of the sentencing process in relation to the appellant's co-accused left them with greater sentences than those imposed on the appellant. No parity ground was argued. Further, the rehabilitation of the appellant was in my view sufficiently accounted for in the overall sentencing process and inevitably formed part of the reason for the reduction of what would otherwise have been an appropriate sentence. His Honour took full account of all relevant material including correctional service reports.
24 So for these reasons I would grant the extension of time within which to appeal, grant leave to appeal but dismiss the appeal.
25 STEYTLER J: I agree with Miller J and would make similar orders for the reasons expressed by him. The outcome is that while we would extend the time within which to appeal and grant leave to appeal, the appeal is dismissed.
26 PULLIN J: I agree with the orders proposed by Miller J and the reasons given by him.
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