Watson v The Queen

[2000] WASCA 119

WATSON -v- THE QUEEN [2000] WASCA 119

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 119
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:191/1999	Heard:	13 DECEMBER 1999
Coram:	MALCOLM CJ WALLWORK J MURRAY J	Delivered:	5/05/00
No of pages:	48	Judgment Part:	1 of 1
Result:	Application refused
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Parties:	CYRIL OLIVER WATSON THE QUEEN
Catchwords:	Sentencing Appeal against total sentences of 15 years' imprisonment Two indictments involving 11 counts involving variously the sale, supply, offer to sell and attempting to possess prohibited drugs, mainly heroin Offences committed while on parole for prior offences Offence in second indictment committed while on bail for offences in first indictment Applicant in upper end of drug distribution hierarchy Mitigation on account of applicant's depression and vulnerability to bad influence of lover outweighed by seriousness of offences Sentences not manifestly excessive
Legislation:	Nil
Case References:	Bellissimo (1996) 84 A Crim R 465 Cottrell (1989) 42 A Crim R 31 Darwell v R, unreported; CCA SCt of WA; Library No 970220; 9 April 1997 Gasteau v R [1999] WASCA 153 Jarvis v The Queen (1993) 20 WAR 201 Kauhanen v R [1999] WASCA 14 Mill v The Queen (1988) 166 CLR 59 Miller v R [1999] WASCA 66 Pearce v The Queen [1998] HCA 57; (1998) ALJR 1416 Quach v R [1999] WASCA 210 R v Richards [1999] WASCA 105 R v Yates [1985] VR 41 Vartzokas v Zanker (1989) 51 SASR 277 Veen v The Queen (1988) 164 CLR 465 Wright v R (1997) 93 A Crim R 48 Symonds v R, unreported; CCA SCt of WA; Library No 980616; 28 October 1998

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : WATSON -v- THE QUEEN [2000] WASCA 119 CORAM : MALCOLM CJ

WALLWORK J
MURRAY J

HEARD : 13 DECEMBER 1999 DELIVERED : 5 MAY 2000 FILE NO/S : CCA 191 of 1999 BETWEEN : CYRIL OLIVER WATSON

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Sentencing - Appeal against total sentences of 15 years' imprisonment - Two indictments involving 11 counts involving variously the sale, supply, offer to sell and attempting to possess prohibited drugs, mainly heroin - Offences committed while on parole for prior offences - Offence in second indictment committed while on bail for offences in first indictment - Applicant in upper end of drug distribution hierarchy - Mitigation on account of applicant's depression and vulnerability to bad influence of lover outweighed by seriousness of offences - Sentences not manifestly excessive

Legislation:

Nil

(Page 2)

Result:

Application refused

Representation:

Counsel:

Applicant : Mr S A Shirrefs & Mr K J Bonomelli
Respondent : Mr L P Rayney

Solicitors:

Applicant : David Manera
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bellissimo (1996) 84 A Crim R 465
Cottrell (1989) 42 A Crim R 31
Darwell v R, unreported; CCA SCt of WA; Library No 970220; 9 April 1997
Gasteau v R [1999] WASCA 153
Jarvis v The Queen (1993) 20 WAR 201
Kauhanen v R [1999] WASCA 14
Mill v The Queen (1988) 166 CLR 59
Miller v R [1999] WASCA 66
Pearce v The Queen [1998] HCA 57; (1998) ALJR 1416
Quach v R [1999] WASCA 210
R v Richards [1999] WASCA 105
R v Yates [1985] VR 41
Vartzokas v Zanker (1989) 51 SASR 277
Veen v The Queen (1988) 164 CLR 465
Wright v R (1997) 93 A Crim R 48

Case(s) also cited:

Symonds v R, unreported; CCA SCt of WA; Library No 980616; 28 October 1998

(Page 3)

1 MALCOLM CJ: This was an application for leave to appeal against sentence. On 12 July 1999 the applicant pleaded guilty in the District Court to 10 offences the subject of 10 counts on an indictment dated 12 July 1999, which contained a total of 16 counts. The 10 offences to which the applicant pleaded guilty in the 16-count indictment occurred between 27 February 1996 and 20 June 1996. The applicant also pleaded guilty to one count in an indictment dated 1 September 1997 with respect to an offence alleged to have been committed on 9 December 1996. The pleas of guilty were accepted by the Crown in full satisfaction of the two indictments. The applicant was sentenced to imprisonment for a total of 15 years for the various offences.

2 The offences to which the applicant pleaded guilty on the indictment which contained multiple counts were:

(a) four offences of selling a quantity of prohibited drug, namely heroin, to another contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 ("the Act");

(b) one offence of supplying a quantity of a prohibited drug, namely methylamphetamine, to another contrary to s 6(1)(c) of the Act;

(c) one offence of selling a quantity of a prohibited drug, namely cocaine, to another contrary to s 6(1)(c) of the Act;

(d) one offence of offering to sell a quantity of a prohibited drug, namely lysergic acid diethylamide, to another contrary to s 6(1)(c) of the Act;

(e) one offence of attempting to possess a prohibited drug, namely heroin, with intent to sell or supply to another contrary to s 6(1)(a) and s 33 of the Act;

(f) two offences of attempting to possess a prohibited drug, namely heroin, with intent to sell or supply to another contrary to s 6(1)(a) and s 33 of the Act; and

(g) two offences of possession of a quantity of a prohibited drug, namely heroin, with intent to sell or supply to another contrary to s 6(1)(a) of the Act.

3 The offence the subject of the single-count indictment was that on 9 December 1996 at Rivervale the applicant had in his possession a quantity of heroin with intent to sell or supply to another contrary to s 6(1)(a) of the Act.
(Page 4)

4 The pleas having been taken and judgments of conviction recorded, the learned Commissioner ordered a pre-sentence report, a psychiatric report and a psychological report. These reports were obtained. The position was that the applicant had been in custody since 9 December 1996. During that time he had been under treatment from psychiatrists and psychologists in the infirmary at Casuarina Prison and had been treated with antidepressant drugs. By reason of the quantities of methylamphetamine and heroin involved in counts (13) and (14) on the first indictment and the single count on the second indictment relating to the offence committed on 9 December 1996, declarations were made in respect of those offences pursuant to s 32A(1)(b) of the Act that the applicant was a drug trafficker. Orders were also made for the forfeiture of two Toyota Supra motor vehicles.

5 Except for the offence the subject of count (11) on the multi-count indictment of attempting to possess with intent to sell or supply heroin to another, all the other offences were such that the maximum penalty was a fine of not more than $100,000 or imprisonment for a maximum of 25 years or both. So far as the attempt was concerned, the maximum period of imprisonment for which the applicant was liable was half the maximum for the completed offence, namely imprisonment for 12-1/2 years.

6 The grounds of appeal challenged the findings made by the learned Commissioner regarding the respective roles of the applicant and a co-accused, Mr Driver; contended that there was no or not sufficient weight given to the applicant's depressive disorder, intellectual impairment and personality traits; contended that insufficient weight had been given to the applicant's efforts to rehabilitate himself while in custody on remand; and failed to have sufficient regard to the totality principle.

Trial of Issues

7 When the matter was brought on again on 25 August 1999, it became necessary to have a trial of certain issues related to sentencing. This occurred because, at the time the pleas of guilty were entered, they were said to be based upon the depositions that were before the Court setting out the essential elements and criminality to which he was admitting his guilt. In the course of discussions with counsel for the Crown, counsel for the applicant had been handed two statements by one Peter Wayne Still and a videotape of an interview with one Eddie Driver. Subsequently, by letter dated 27 July 1999 from the office of the Director of Public

(Page 5)

Prosecutions, the applicant's solicitors and counsel were provided with copies of holding orders and a statement of Mr Driver dated 17 December 1996, the transcript of a video-recorded interview with Mr Driver on 12 July 1999, statements by Mr Still dated 12 December 1996 and 9 July 1999, together with a statement from one June Avila dated 12 December 1996. It was said that the statements by Mr Still dated 12 December and 9 July 1999 related to the events on 7 to 9 December 1996 relevant to the single count.

8 Counsel for the Crown then proceeded to outline the matters to which the additional material was relevant. Mr Bates indicated that no reliance would be placed upon the statement made by June Avila dated 12 December 1996 in relation to the offence the subject of the single-count indictment, however reliance was placed on three statements of one Peter Wayne Still. The first dated 12 December 1996 related to the offence the subject of the single-count indictment denying any knowledge of any drugs. There was the statement of one Ernest Edward Driver dated 17 December 1996 in relation to the same count which also denied any knowledge of any drugs. There were two further statements made by Mr Still, both dated 9 July 1999. The first related to the multiple-count indictment dealing with matters which occurred between 27 February and 17 May 1996, and the second was in relation to the matter the subject of the single-count indictment. Those two statements were obtained on the evening of Friday 9 July 1999, when the trial was due to commence on 12 July 1999. There was a video-recorded interview with Mr Driver conducted on Saturday 10 July 1999 which dealt with both matters. It appears that this procedure was adopted because Mr Driver was illiterate. The later statements obtained from Driver and Still contradicted their earlier denials of any knowledge of involvement with drugs. The learned Commissioner was informed by Mr Bates that counsel for the applicant were informed of the existence of those statements and the video-recorded interview prior to the pleas being entered on Monday 12 July 1999. Mr Bates informed the Commissioner that, to the best of his recollection, both were provided with copies of the statements and a copy of the video, although at that time there was no transcript of the video-recorded interview.

9 As appears from the pre-sentence report, there was material which suggested that the applicant's explanation for his involvement in these drug offences was because he was financially supporting Mr Driver, his young homosexual partner, who was addicted to heroin. As appears from the psychiatric report, an explanation put forward by the applicant was that early in 1996 he began to develop a close relationship with

(Page 6)

Mr Driver, whom he later discovered had a serious heroin addiction. Mr Driver began to borrow money from him to buy heroin and had difficulty in paying it back. It was suggested by Mr Driver to the applicant that he should assist Mr Driver in selling heroin so that his drug debts could be paid. The applicant agreed.

10 According to Mr Driver, however, in his video-recorded interview he alleged that it was the applicant who was dealing in heroin. Mr Driver had been a former heroin addict and the applicant gave him heroin. He once again became addicted to heroin and was dependent upon the applicant for it. It was that way in which he became involved in a homosexual relationship with the applicant because he was dependent upon him for his supply of heroin.

11 It also appeared from the psychiatric report that the applicant had been charged with similar offences in 1996 and placed on bail. While on bail he was arrested for further multiple drug offences with which he was charged, together with breach of bail. His explanation was that he continued to be persuaded by Mr Driver to help him to develop his heroin dealings. This was disputed by Mr Driver.

12 So far as the offence the subject of the single-count indictment was concerned, the applicant's explanation was the same. However, Mr Driver said that he simply accompanied the applicant to Victoria, where the applicant obtained the heroin which he brought back to Western Australia and with which he was found in possession at the Red Castle Motel. Mr Driver said that he was not involved in packing and cutting the heroin, mixing it with glucose and placing it in paper folds ready for sale. He alleged that that was done by Mr Still.

13 Thus, the position was that, on the one hand, the applicant said that he was persuaded by Mr Driver, who was addicted to heroin, to get involved in these offences initially, and then, after he was released on bail, to be involved in the second series of offences. These assertions were contradicted in the statements of Mr Driver and Mr Still, who alleged that the applicant was involved in dealing in heroin and that Mr Driver and Mr Still assisted him because they were dependent upon heroin, and, in the case of Mr Driver, he was in a homosexual relationship with the applicant. This was the main issue to be tried.

14 Following the trial of issues on 25 August 1999, the learned Commissioner delivered his reasons on 26 August 1999. The Commissioner summarised the issues as follows:

(Page 7)

"If I can turn to outline the issues involved in this case; questions arise as to: was the business, to which the possession and sale and attempted sale of drugs related to, the business of the accused Mr Watson with others including, firstly, the accused's lover Eddie Driver and, secondly, another person Peter Still working for the accused, doing things such as folding, weighing, delivering and selling for the accused? Was the business Eddie Driver's business and the accused's involvement secondary to Eddie Driver's and limited to selling for Eddie Driver and, on occasions, packaging deals, again on the basis of doing so for Eddie Driver?"

15 The learned Commissioner also said:

"The factual issues for me to determine go to firstly the degree of criminal culpability on the part of the accused and where the accused fits in the hierarchy for such conduct and, secondly, the accused's explanation for his involvement in the commission of these offences.

If I can turn to the evidence and make some comments on it, the first point I should mention is that the accused has not given any evidence in the hearing on the facts. He is entitled to remain silent and sit in the dock and require the Crown to establish the facts based upon what I have said in Langridge's case [Langridge (1996) 87 A Crim R 1], the onus rests on the Crown to establish the facts beyond reasonable doubt. The fact that the accused has not given any evidence is not something that I may used [sic use] and I have not used to draw or to go towards drawing any adverse inference against him.

The evidence consists of the oral evidence of Eddie Driver, Peter Still, both of those witnesses called by the Crown, and also Veronica Bradley, a witness called by the accused. The evidence of all these three witnesses has been tested under cross-examination. As important as the evidence is of each and all three of these witnesses, it does not constitute all of the evidence that needs to be considered in this particular case. There is also the evidence contained in the various depositions making up the brief, which include by way of attachments to the deposition of undercover operative 26, running sheets and a transcript of telephone conversations.

(Page 8)

I wish to make the point at the outset, as trite as it may seem, that the evidence should be considered and I have considered the evidence as a whole. This is important. Take the evidence of Eddie Driver, for example. I am mindful of inconsistencies in his evidence and also inconsistencies between his oral evidence and prior statements, and also inconsistencies between his oral evidence on oath in the witness box yesterday with that of Victoria Bradley on Eddie Driver's attendance on Ms Bradley on 27 August 1997 and what was said by Eddie Driver to Ms Bradley during that attendance.

All of Eddie Driver's evidence needs to be considered in the light of the evidence as a whole. I regard much of Eddie Driver's evidence as unreliable. I reject his evidence that he was not using heroin when he started up his relationship with the accused in about 1996, after the accused had been released from prison in relation to the offences for which he was sentenced in 1992 in the Supreme Court of this State.

I also reject Eddie Driver's evidence to the effect that the accused's wealth was not something that attracted him towards the accused. I have no doubt that while Eddie Driver was and is no intellectual giant or intellectually clever by any means, he lacked nothing in basic cunning. I accept Eddie Driver's evidence beyond reasonable doubt that the trip to Melbourne in December 1996 was arranged by the accused. It was from this visit to Melbourne that the accused obtained the rock heroin which was subsequently crushed, mixed and packaged at the Red Castle Motel.

So far as the evidence of Peter Still is concerned, I bear in mind at all times his shocking criminal history and propensity for dishonesty. However, notwithstanding all of that, I am satisfied that he is still capable of speaking the truth. I have no doubt that he was coy about his understanding of whether he would be charged or not as a consequence of giving a second statement. However, otherwise I found him to be a reliable witness.

That finding needs to be looked at having regard to the nature and extent of Mr Still's evidence. In my view he was low down in the overall scheme of things. He mixed, delivered and sold essentially to help support his own heroin addiction. He wasn't a prime mover by any means. I accept his explanation for the

(Page 9)

inconsistency between his oral evidence and the statement that he made concerning his use of drugs; namely, that he used a very small amount of heroin in January. It must be appreciated, in my view, that Peter Still is not a person who makes fine distinctions and he was coming from a history of relatively heavy drug use. The undercover officer T1 noted that the applicant had said that he was the owner of the Lunar Cinema and had several holiday houses. He also said that he did not need the money obtained through dealing in heroin. He told the undercover officer that he only got into the business as he was handed it by Mr Driver because Mr Driver had started to use too much heroin himself and could no longer run the business."

16 The learned Commissioner found that as from at least 27 February 1996 the applicant was the operator of a drug-selling business which he regarded as his business. It was not relevant to determine whether he took over the business from Mr Driver or whether he was operating it before Mr Driver arrived on the scene or a combination of the two. As from 27 February 1996 Mr Driver was subordinate to the applicant. The applicant was not a user of heroin. He was a person of significant business acumen. As the learned Commissioner put it:

"On my assessment of all the evidence it is beyond belief that the accused was subordinate to Eddie Driver in the business of Eddie Driver's and I say that with the advantage of having seen Eddie Driver in the witness box. Eddie Driver and Peter Still were two heroin addicts and were reliant upon the accused for both money and heroin. The discussions between undercover operative 26 and the accused point to the accused as the operator of the business. The accused gave instructions. For example, the accused gave an instruction to Peter Still to deliver the shortfall of half a gram to undercover operative 26 on the opposite side of Lake Monger where the accused lived on Lake Monger Drive.

The accused also arranged the packaging at the Red Castle Motel on 9 December 1996 with the assistance of Mr Still."

17 There was significant support for these conclusions in the conversations between the applicant and undercover operative 26. There was a considerable body of evidence of dealings between undercover operative 26 and the applicant. This led to the following finding by the learned Commissioner:

(Page 10)

"On my assessment of all of the evidence I find that the accused was the operator of the business and that it was his business, at least from 27 February 1996, and over the period during which these offences occurred. As to the accused's explanation in the psychiatrist's report, I positively reject the explanation that the accused started selling heroin for Eddie Driver so that Eddie Driver could repay his debts to the accused. There was no evidence at all about the extent of any debt. In any event, the accused was a wealthy man. There has been reference to the accused being the proprietor of a cinema worth a lot of money and also a number of properties.

I have no doubt that the accused could have accommodated Eddie Driver's debts. Any assistance by the accused in selling drugs for Eddie Driver would simply have perpetuated Eddie Driver's drug problem. The accused would no doubt have been fully aware of that. I also have no doubt that the accused had the wealth to satisfy Eddie Driver's needs and to satisfy whatever desires each of them had for each other without the need for the accused to sell heroin for Eddie Driver.

Further, I have no doubt that the accused would have appreciated that, notwithstanding the strong emotional feelings he had for Eddie Driver. So it's with those reasons and those findings in mind that I will continue on and deal with the sentencing."

18 At that point, counsel for the applicant pointed out that the learned Commissioner had not dealt with the evidence of Victoria Bradley. In this respect, the learned Commissioner said:

"The findings that I have reached in my view aren't inconsistent with the evidence of Ms Bradley. It may well be that Eddie Driver expressed feelings of guilt to her, but in my view they don't negate my view of the evidence and they also don't in any way conflict with the other evidence as to what actually took place between February and December 1996.

So far as the evidence of the psychiatrist's assessment is concerned, again that has to be read subject to the evidence as a whole and I have gone through various aspects of the evidence knowing the view of the psychiatrist, but nonetheless I don't

(Page 11)

think that that view of the psychiatrist again stands in the way of the findings that I have expressed."

The Crown's Statement of Facts

19 Counsel for the Crown then proceeded to state the facts of the case in accordance with s 617A of the Criminal Code. It appears that in the early part of 1996 an operation codenamed "Silvertail" was commenced by the Drug Squad. The applicant was the target of the operation. In respect of count 1, the facts were that on 27 February 1996 a female undercover officer who used the assumed name Julie made a telephone call to a mobile telephone number. She spoke to the applicant. She explained that a friend of hers had told her that the offender might be able to get some "smack" (i.e. heroin) for her. The applicant indicated that he could. They arranged to meet outside the Oxford Hotel in Leederville a short time later. The undercover officer waited there. A white Toyota Supra vehicle driven by the applicant pulled up at that location. The undercover officer asked the offender whether he was "Cyril". He replied that he was and he asked her how she had got his number. Julie replied, "From a girlfriend." The applicant asked her, "What are you after?" and Julie replied, "A packet," which is a reference to a single-usage amount of heroin. The applicant then opened the console between the passenger's and driver's seats and removed a package and handed it to Julie. Julie asked the offender how much it cost and he said, "One hundred dollars." Julie handed him a $100 note, which he put in the console of the car. The packet was subsequently analysed and found to contain 0.07 of a gram of diacetylmorphine, which is heroin, later analysed to be 52 per cent pure.

20 As to count 3, the facts were that on 7 March 1996 the undercover officer telephoned the applicant on his mobile telephone. She asked him whether he had any cocaine available. He said, "Not at the moment. The bloke's away for a week, but I should have when he gets back." She told the applicant that she wanted to meet him and discuss a few things. She then said that as they were meeting, he could bring a gram of heroin with him. The applicant agreed and quoted a price of $750 per gram. They agreed to meet at Lake Monger in the picnic area at 6 pm. Shortly before 6 pm, the undercover officer drove to the Lake Monger carpark. The applicant also drove to the carpark in his white Toyota Supra. The undercover officer entered the applicant's car and sat in the passenger's seat. The applicant was seated in the driver's seat. The applicant removed two small packages from his trousers and handed them to the undercover officer. She counted out $750, which she handed to the applicant.

(Page 12)

21 The undercover officer then indicated to the applicant that she had an associate who may be interested in purchasing bulk amounts of heroin from him. She asked whether he could accommodate her and she indicated an amount of 4 ounces. The applicant said that he might need to know a little bit in advance, because the ordering was done fortnightly and it might just happen to be the fortnight with only a few days to go. He said that was why he needed to know, and she mentioned that all the stuff was actually kept in the country.

22 They then discussed a possible price for large quantities. They discussed a price of $720 per gram in purchasing 4 ounces and $700 per gram in purchasing 6 ounces. The two packets handed over were found to contain 0.5 a gram of heroin, 55 per cent pure, and 0.51 of a gram of heroin 48 per cent pure respectively as the result of subsequent analysis. During this conversation, the undercover officer indicated that she did not use drugs. The applicant indicated that he did not use drugs, apart from a bit of speed, which was a reference to amphetamine, "once in a blue moon if you're going out to a nightclub".

23 As to count 4, on 27 March 1996 the undercover officer telephoned the applicant. They agreed to meet at Lake Monger at 10 am the next morning for her to receive a free sample of amphetamine. On 28 March 1996 they met at the Lake Monger carpark. The applicant got out of his white Toyota Supra and hopped into the undercover officer's car. The applicant gave her a small quantity of what was subsequently identified as methylamphetamine. He indicated that the sample was the same as the methylamphetamine she would purchase if she purchased a larger amount.

24 During the conversation on 28 March 1996 the undercover officer asked whether she could pick up a couple of grams of "coke", which is cocaine, and a couple of grams of "smack", which is heroin, "on Tuesday". The applicant said, "All right." The weight of the methylamphetamine supplied was 0.33 of a gram, 80 per cent pure.

25 As to count 5, on Tuesday 2 April 1996 the undercover officer and the applicant met at Lake Monger. The applicant drove there in his white Toyota Supra. The applicant gave the undercover officer three packets which were subsequently analysed and found to be heroin. The three packets were each approximately 0.5 of a gram with a purity of approximately 50 per cent. The undercover officer gave the applicant $1,200. The applicant gave her $50 in change.

(Page 13)

26 Later that day the undercover officer rang the offender and indicated that the heroin purchased earlier that day was 0.5 of a gram short. Arrangements were made for her to collect the additional heroin at Lake Monger at 6 pm. The undercover officer attended at the Dodd Street carpark at Lake Monger. While she was there, she received an incoming telephone call from the applicant advising her that "Peter" would be there in a short time. A short while later, Mr Still arrived in the applicant's white Toyota Supra, and another quantity of heroin was supplied to make up for the shortfall. This was found to be 0.5 of a gram, 27 per cent pure.

27 Count 5 relates to the applicant selling the 2 grams of heroin to the undercover officer on 2 April 1996, including the shortfall which was later supplied by Mr Still. The applicant was unable to provide the undercover officer with the cocaine which was discussed at the meeting on 28 March 1996. The undercover officer asked the applicant whether he could get a "G", which is a reference to a gram of coke for her "just to try it, to see what it's like". She indicated that she would probably also be chasing a "quart of slow", which is a reference to a quarter of an ounce of heroin. The applicant said, "I'll get it for you. Don't worry about it."

28 As to counts 7 and 8, the undercover officer made arrangements to meet the applicant at Lake Monger on 24 April 1996. Later, she made another mobile telephone call to the applicant and indicated to him that she wanted to collect a "quart", which is a quarter of an ounce or 7 grams of heroin, in addition to the packet of cocaine that she had previously agreed to purchase. The applicant said that he had already made up the quart and he thought that that was what she wanted. He said that $4,800 was the price for the quart and $400 for the cocaine. After some discussion, a price of $5,100 for both parcels was agreed. The undercover officer met the applicant at the carpark at Lake Monger, where she purchased the drugs for the agreed price. Once again, the applicant had driven to that location in his white Toyota Supra. On analysis, the heroin was found to weigh 7.02 grams, 10 per cent pure. The cocaine was found to weigh 0.81 of a gram, with a cocaine content of 34 per cent. Count 7 related to the heroin and count 8 related to the cocaine.

29 In respect of count 9, the facts were that on the afternoon of 2 May 1996 the undercover officer spoke to the applicant during a mobile telephone call and indicated that she wanted to talk about some future business and also about the quality of the heroin that the applicant had sold her on 24 April 1996. They agreed to meet later that day at the carpark at Lake Monger. The meeting occurred as scheduled. On that occasion the applicant was driving his red Toyota Supra. He offered to

(Page 14)

sell her a quantity of LSD. He had a package wrapped in aluminium foil which was about 4 x 7 centimetres and flat. Inside the foil was a page of what he described as "trips", which were white with a blue circle in the middle and a black penguin on the face. It appeared to be a page of 100 trips, with one on the right top corner missing. The applicant told the undercover officer that the trips would cost $16 each and that she could get them from him at any time that she wanted them.

30 As to count 11, on the same occasion in the carpark at Lake Monger as gave rise to count 9, the undercover officer went on to tell the applicant that a friend of hers was interested in purchasing 3 ounces of heroin from him and that she was going to "talk to him tonight". The undercover officer and the applicant had a discussion about prices and sources. The applicant indicated that he could get her "all rock, no powder" for $17,500 an ounce from "the big mob", or $15,000 an ounce from "the Chinese connection". The application said that the supplier of the rock was "doing a run on Monday", that is 16 May 1996, and would be away for a week, getting back the following Monday, namely 13 May 1996. He went on to say that this person had called him at home earlier in the afternoon and asked whether he wanted anything brought back and he said that if he wanted to place an order he would have to do so "before the supplier goes away". The undercover officer explained to the applicant that she would be talking to her friend "this evening" and that she would give him a call back.

31 On 3 May 1996 the undercover officer made a mobile telephone call to the applicant. She said that she had spoken to her friend and had told him that he would have to wait about a week for the heroin required. The applicant told her that he did not want to do 3 ounces in one buy as he did not want to carry that quantity on him. The undercover officer told him that that was okay, as she would prefer not to carry large amounts of money, either. It was agreed that they would do the purchases over two or three days, on the Friday, Saturday and Sunday. The applicant said that the man would be back in Perth on Tuesday and that he would need a few days to organise things. The undercover officer suggested that they do the buying "on Thursday onwards". However, the applicant stated that he would call her on "Friday morning", that is 17 May 1996.

32 On 16 May 1996 the undercover officer called the applicant and asked whether everything was set for Friday 17 May, as had been discussed on 3 May. The applicant asked her what she was after, and she told him 3 ounces. The applicant told her that the man wanted to talk to her and that he would call her later that evening and that nothing more

(Page 15)

would be discussed until that happened. On 17 May 1996 the undercover officer called the applicant and asked him what was going on. The applicant said that he would be able to supply her with an ounce that evening. The applicant then asked how much he had quoted her and she told him $17,000 per ounce of rock. The applicant agreed to this. That afternoon the undercover officer received an incoming telephone call from the applicant. He stated that he would supply her with an ounce of heroin, but he would meet her, collect the money and return later with the heroin. The undercover officer told the applicant that she would have to confirm that, as it was not her money and she did not know the people the applicant was dealing with. She told him that she would get back to him to confirm the details. A short time later, she made a telephone call to the applicant. She told him that she had confirmed that the buy could be done in that way. They discussed meeting at Lake Monger, where she would hand over the money. The applicant would then take the money to his people and return about an hour later with the heroin. It was agreed to meet at Lake Monger at 4 o'clock.

33 At 3 o'clock the undercover officer received an incoming telephone call from the applicant, who confirmed the price of $17,000 and assured her that everything would go according to plan. At 3.18 pm a blue Mercedes-Benz vehicle arrived at the applicant's house at 75 Lake Monger Drive, Wembley. At 3.36 pm the blue Mercedes-Benz departed. At 4.06 pm the blue Mercedes-Benz returned to 75 Lake Monger Drive. At 3.55 pm the undercover officer made a telephone call to the applicant's mobile telephone. She told him that she was delayed in traffic and would call in when she was closer.

34 At 4.40 pm the undercover officer telephoned the offender and indicated that she was five or 10 minutes away. At 4.52 pm she attended at the carpark at Lake Monger and two minutes later made a telephone call to the applicant. The applicant told her that he was parked in another part of the carpark and to park her car next to his. She found the applicant's red Toyota Supra, parked next to it, got out of her vehicle and got into his.

35 The undercover officer then had a conversation with the applicant. During the course of the conversation she handed him a white plastic shopping bag containing $17,000 made up of $100 and $50 bundles. Prior to being handed over, the money had been coated in anthracene powder, which is a powder made up by the Chemistry Centre and given to the Forensic Branch of the Police Service. The anthracene powder shows up as a bright greeny-yellowy colour when exposed to light. At 5.07 pm,

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after handing over the $17,000, the undercover officer departed from Lake Monger. At 5.07 pm the applicant's Toyota Supra was observed to arrive back at 75 Lake Monger Drive, Wembley. The blue Mercedes-Benz was also present at that time. The offender alighted from the Toyota and was carrying a white plastic shopping bag. He entered the house.

36 At 5.17 pm one Lee Thomas Timmins was observed to leave the house carrying a white plastic shopping bag. He entered the blue Mercedes-Benz and drove a short distance until he was stopped at the intersection of Vincent and Charles Streets, North Perth, by a number of detectives. Under the front passenger seat, detectives located a white plastic bag containing $14,400 in cash. Inside the centre console of the vehicle, detectives located a black wallet containing $1,600. A pair of electronic scales were located in the driver's door recess, as well as a plastic bag with a Velcro seal. Count 11 on the indictment related to the applicant attempting to possess a prohibited drug, namely heroin, with intent to sell or supply it to another. The applicant intended to possess an ounce of heroin with intent to sell or supply it to the undercover officer for $17,000.

37 At about the same time, a search warrant was executed at the applicant's house at 75 Lake Monger Drive. During the search the applicant was taken to a pine tree at the front of his house. In the presence of the applicant, one of the detectives removed a green ammunition box from the tree. The contents of the ammunition box were examined and subsequently found to contain approximately 31 grams of heroin in a clip-seal plastic bag. On analysis, the exact weight was found to be 30.7 grams of heroin, 21 per cent pure. The box also contained heroin in 238 paper folds. There were four certificates of analysis which covered that heroin, and the exact weights and purities were 17.16 grams of heroin, 18 per cent pure; 0.9 of a gram of heroin, 10 per cent pure; 9.09 grams of heroin, 16 per cent pure; and 4.08 grams of heroin, 14 per cent pure. The total of the heroin in the folds was 21.23 grams. The ammunition box also contained approximately 62.5 grams of methylamphetamine in two paper folds. One lot contained 58.1 grams of methylamphetamine, 4 per cent pure; and the second 4.32 grams of methylamphetamine, 4 per cent pure. The total amount of methylamphetamine was 62.42 grams, 4 per cent pure.

38 In addition there were contained in the ammunition box approximately 3 grams of methylamphetamine in 11 small plastic bags. These contained 3 grams of methylamphetamine, 5 per cent pure. Police

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also inspected the interior of the applicant's car, the red Toyota Supra, and applied ultraviolet light to the interior. A green fluorescent glow was observed on the console of the vehicle and parts of the dashboard and the steering wheel. The sum of $1,000 was seized in the console of the car, and when subjected to ultraviolet light the money produced a green florescent flow.

39 A search of the inside of the house located a set of scales, 14 small plastic bags and a pair of scissors on top of a china cabinet in the combined lounge and dining room area. A single paper fold was found in bedroom 2. Counts 13 and 14 on the indictment related to the heroin and methylamphetamine found in the ammunition case.

40 On 20 June 1996 a search warrant was again executed at the applicant's house at 75 Lake Monger Drive. In an upright lamp inside the house, six folds of paper tightly wrapped in plastic were located. Those folds were subsequently analysed and found to contain small quantities of heroin. The total weight of heroin was 2.86 grams, 24 per cent pure. The offender told the police that the heroin had been at his house on 17 May 1996, and this amount of heroin was included in count 13 on that basis.

41 The offender was interviewed by a detective from the Drug Squad on the evening of Friday 17 May 1996, but he exercised his right to silence.

42 So far as the single-count indictment is concerned, that matter was the subject of a preliminary hearing. As a result of information received, the applicant became the subject of a police investigation. During the early hours of Monday 9 December 1996 a search warrant was issued pursuant to the Misuse of Drugs Act and executed at unit 40 at the Red Castle Motel in Lathlain, where the applicant was found to be the only occupant. Located in the applicant's personal carry bag were 65 small self-lock plastic bags containing 481 folds of paper. Each paper fold was wrapped in plastic cling-wrap and contained between 0.1 and 0.5 grams of heroin. The total weight of the heroin found in the 481 paper folds was 109.4 grams. Those drugs were the subject of three certificates of analysis. The first related to 35.6 grams of heroin, 68 per cent pure; the second related to 37 grams of heroin, 47 per cent pure; and the third related to 36.8 grams of heroin, 61 per cent pure.

43 A further quantity of heroin packaged in four plastic bags was also found in the same carry bag. That heroin was in rock form and it weighed 111 grams, 81 per cent pure. There was an additional paper fold containing heroin at the bottom of a blue carry bag which contained 0.06

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of a gram of heroin, 55 per cent pure. One paper fold containing heroin was found in the pocket of the applicant's shirt in the walk-in wardrobe which contained 0.044 of a gram of heroin, 50 per cent pure. Seventeen folds of heroin were located in the applicant's white Toyota Supra motor vehicle, which was parked in the carpark of the motel. These were located in an envelope concealed between the steering wheel and dashboard. The folds were subsequently analysed and found to contain a total of 1.6 grams of heroin, 55 per cent pure. The total weight of all the heroin seized on this occasion was 225 grams, which ranged in purity from 47 per cent to 87 per cent. A set of scales and a quantity of Glucoden was also found in the motel unit.

44 The applicant had travelled to Melbourne with Mr Driver, returning on Sunday 8 December 1996. On that day the applicant telephoned Mr Still and asked him to book a room at the Red Castle because he and Mr Driver had had a fight. Mr Still booked a room for the applicant at the Red Castle. When he dropped off the keys to the applicant at the applicant's house, the applicant asked him if he would come over later to the motel and make up the packets, which he did. The applicant had brought the heroin back with him from Melbourne.

45 Mr Still went with his girlfriend, June Avila, to the motel on the evening of 8 December 1996 and helped the applicant to make up some packets of heroin. Mr Still crushed the heroin and mixed it with a quantity of Glucoden, then weighed it out and made up some paper folds. Before Mr Still and Ms Avila left, the applicant put the heroin in a carry bag. The applicant was later interviewed on video and exercised his right to silence.

46 So far as the offences the subject of the first indictment were concerned, each of them, except the count of attempted possession of heroin with intent to sell or supply, carried liability for a fine not greater than $100,000 or to imprisonment for a term of not greater than 25 years, or both.

Sentencing Remarks

47 In passing sentence, the learned Commissioner said:

"It would be fair to say that most of the dealers apprehended and dealt with by the courts are within the low to middle range of the hierarchy. As you go towards the top of the hierarchy, the number of dealers within the upper levels apprehended and

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dealt with by the court drops off. One of the reasons for that of course is that the number of dealers in the upper echelons of the drug trade is obviously lower but added to this is the further difficulty in detecting and apprehending such people.

The higher up in the hierarchy, in my view, the firmer the courts need to be with the offender to make it clear that the courts wish to deter such conduct and to do so will deal with it in the firmest way possible and as it considers appropriate in all of the circumstances. In my view, you were no small-time street dealer. Further, you were no small-time street dealer engaged in dealing to support a drug habit of your own. You are independently wealthy, a multi-millionaire.

It has been submitted to me that you, as a wealthy man, don't need money from the sale of goods. I readily accept that you don't but that doesn't mean that profit was not one of your motives. I have no doubt that it was. The conversations you had with the undercover officer showed that you regarded yourself as conducting a business, and I pause here to add that you conversed with the undercover officer such that it was clear that you regarded it as your business, not Eddie Driver's business, not anyone else's business but your business and that profit was a motivating factor. That's not surprising. You have a history of being in business and being successful in accumulating assets and at times generating substantial amounts of income to then in turn further enable you to add to your capital assets. The purpose of being in business is to generate a profit. There's nothing profound about that statement. I have no doubt that that was your purpose in other business dealings that you engaged in and, consistent with that, profit at least was one of the purposes for being involved in dealing with drugs.

The other reason for your being involved in the drug dealership relates to your personal relationship with Eddie Driver. I will comment more about this later, suffice it to say at this point that I have no doubt that you dealt in drugs for profit and for a reason personal to you and for your own personal benefit; that is, money and the maintenance of your personal relationship with Eddie Driver.

A number of features of these offences cause me great concern and I think support lengthy terms of imprisonment. Without

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putting them in any order of priority, they are as follows. Firstly, you are a large scale wholesaler and retailer. It is clear from the conversations you had with the undercover officer that you understood that she was a supplier to others and not a user in her own right. You understood that she would supply others and thereby spread drugs further throughout the community. Secondly, you dealt with a multiplicity of drugs; heroin, amphetamine, LSD, and cocaine. Amphetamines and heroin are both to be regarded as very serious."

48 So far as the psychiatric report was concerned, the learned Commissioner said:

"I have carefully considered the psychiatric report of Mr Pougher and the psychological report of Ms Cull. I accept that you have your own problems relating to both personality and also intellect. It must, however, be clearly understood that the people who end up using drugs are also living with difficulties and those difficulties are made more so and added to by the misuse of drugs, whether they be supplied by you or by others."

49 The learned Commissioner also said:

"Your mild intellectual impairment was not such that you didn't appreciate the physical harm that drugs could cause. In the material that was provided to me in the brief, and in particular the running sheets and conversations that were had between you and the undercover officer, it's clear to me that you had an understanding of the potential consequences of misuse of drugs, particularly hard drugs."

50 As to the offence on 9 December 1996, the learned Commissioner regarded it as:

" … aggravated, in my view, in the sense that having been arrested on 17 May 1996 and charged with a multitude of offences for the period 27 February to 17 May 1996, and having been released on bail in relation to each and all of those offences, here you were persisting, six months later, committing the most serious of all the offences now before me; that is, the offence on 9 December at the Red Castle Motel.

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In doing so, you, in my view, were showing contempt for the law and also callous disregard to those who would have been, but for your timely apprehension, supplied with the heroin. I wish to say something about the attempt to possess the heroin with intent on 17 May which I have touched upon on a number of occasions already. It seems to me that the only reason the offence wasn't completed was because the person sent to collect the ounce of heroin for you to enable in turn to deliver it to the undercover officer or cause it to be delivered to her – was that the person was intercepted by the police.

It seems to me that there was nothing more that you needed to do in relation to that particular offence. You had arranged the deal, you had arranged the collection and also you had arranged with the undercover officer the subsequent delivery of the heroin to her. Therefore, although this offence is an attempt, it goes very close to a substantive offence. While I of course treat it as an attempt, I regard it as a serious case of attempt."

51 The learned Commissioner also said:

"If I had to sentence you on each indictment in relation to the first indictment and each of the charges on that separately, and also looking at each of the indictments separately and in isolation from each other, very long sentences of imprisonment would be imposed that, when added together, would produce a distorted result. In other words, much higher than what, at the end of the day, having regard to totality it should be.

In my view, having regard to the totality principle, the proper starting-point for the total of all of these offences is 20 years' imprisonment. I would break that down to 8 years for the 10 offences on the first indictment and 12 years on the offence in the second indictment."

52 The learned Commissioner went on to say that he had had regard to matters personal to the applicant that had been brought to his attention in the pre-sentence report and also by the applicant's counsel. At the time he was sentenced in August 1999 the applicant was 52 years of age and an experienced businessman who had accumulated considerable wealth. He expressly took into account that the applicant should receive discounts to reflect his pleas of guilty. He also considered the submissions based upon the psychiatric and psychological reports concerning his passive and

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insecure nature, mild intellectual impairment and that the combination of those factors established a vulnerability on his part to strong persuasion to do something unlawful. In particular, the Commissioner noted the supplementary report of Ms Cull, which referred to characteristics of the applicant's personality and intellect and concluded that:

"Given the nature of the offences and Mr Watson's self reported history of the relationship with his (then) partner, I am strongly of the opinion that his offending behaviour was significantly influenced by his personality and cognitive limitations and his vulnerability to external influence which these then presented."

53 It was submitted that the motivation for the offences was the applicant's obsession and attachment to Mr Driver, to whom the applicant had bequeathed his estate by way of a will made in 1995. There was reference to a substantial fear of rejection. Dr Pougher also reported with respect to the applicant that:

"It is obvious that he has some intellectual impairment. However, this is compensated for by good verbal skills.

He is, however, somewhat passive and insecure by nature, and combined with some intellectual impairment probably would be vulnerable to strong persuasion to do something unlawful, such as heroin dealing.

He does not have a personality disorder, in my opinion, despite his unhappiness with his homosexuality. However, he does have a Depressive Disorder of some significance which appears to be familial, and responds to antidepressant medication. It is imperative that he continues to take his medication, or alternative antidepressants, for the rest of his life. Otherwise the risk of suicide attempts or suicide completion is high. Even with medication, monitoring of his condition would be advisable, particularly if he receives a custodial sentence."

54 As to these matters the learned Commissioner said:

"In my view, the mild intellectual impairment has played no part at all. You have had no secondary schooling; I'm mindful of that. You have had learning difficulties; I'm mindful of that. There's the head injury that's been referred to; I'm mindful of that.

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On top of all that, I'm mindful of the tragic circumstances so far as your earlier life is concerned having lost your parents at an early age but notwithstanding all of your difficulties, to your credit you worked hard and you have been involved in business. It seems to me that looking at your work history, it includes you buying and selling properties, buying a theatre that was run down and doing it up, then entering into negotiations with a film company for film rights. You have obviously entered into leases from time to time on various properties. It's clear to me that you've got good verbalising skills. It's also clear to me that it may be these good verbalising skills are to some extent a development arising out of the shortcomings with your reading and writing; that you have successfully developed good verbalising skills to make up for that."

55 The learned Commissioner went on to say:

"In relation to your personality, I accept the evidence about your vulnerability but that needs to be considered in the light of all the facts in relation to these offences.

Frankly, your vulnerability is dwarfed by the seriousness of what you have done. Further, and in relation to Mr Plougher's report, his conclusion and recommendation in paragraph 10 towards the end of his report must be read with paragraph 3 on page 1 of his report which is headed "Explanation". This is necessary because this is what you have told him so, in other words, this is your explanation albeit perhaps in part and your explanation to him was as follows:


'Early in 1996, he said, he began to develop a close relationship with another man. This man, he later discovered, had a serious heroin addiction. This man began to borrow money from the offender to buy heroin and had difficult [sic] in paying it back.

It was suggested that he should assist in selling heroin so that these debts could be paid. He agreed.

He had tried, he said, to persuade his partner to get off drugs, and even succeeded in getting him to a methadone clinic, but he still continued to use heroin.

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He found out later, that his partner had spent three years in Pentridge Prison in Melbourne a few years ago for drug offences.'"

56 The learned Commissioner commented:

"So clearly, from your point of view, as you expressed it to Mr Pougher, there was a financial side to all of this, not just an emotional side related to your personality. You were well aware of what you were doing and that it was wrong and you engaged in the conduct for money and also personal reasons knowing the consequences to others flowing from your conduct. You didn't need to sell drugs for money. I have already mentioned that. You were wealthy already in your own right. You didn't want your asset base diminished any more than could be avoided, it seems to me. Further, your continued involvement with heroin and supply of it to Eddie Driver to sustain your relationship with him provides nothing in the way of mitigation. Your attempts to get Eddie Driver to attend treatment, and in particular acupuncture, needs to be considered in the light of the fact that you were actually supplying him with heroin.

I will make some allowance generally for your vulnerability as a consequence of the combination of personality and intellectual factors but it's only small, bearing in mind the comments that I have just made. So, in my view, general deterrence does play a substantial part in sentencing today and it has often been stated in cases of this kind that general deterrence is a very important sentencing factor because the message needs to get out to not only you but also to others who are minded to conduct themselves in this way, that if they choose to do so then the potential consequences are serious indeed for them."

57 The learned Commissioner considered there was nothing by way of mitigation in the prior record. The offence committed in December 1996 was committed when the applicant was on parole for particularly serious offences which were committed in 1992.

58 The learned Commissioner then referred again to what he had previously mentioned, namely:

"I have previously mentioned that I thought the starting point, having regard to totality was 20 years and I broke that down to

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8 years in relation to the offences on the first count and 12 years in relation to the offences on the second.

If I can return to this mitigating factor that I have previously mentioned; that is your pleas of guilty? It seems to me that there needs to be a different discount in relation to the fact that you have pleaded guilty insofar as the first indictment is concerned compared to the second. I think the discount in relation to the first should be greater than the second and the reason I say that is initially you were charged with a conspiracy and that particular count was on the first indictment and it was one of the matters that went to a preliminary hearing.

You were discharged in relation to the conspiracy. Subsequently, there was an ex officio indictment in relation to the conspiracy. It may be that some time in late 1998 Mr Bonomelli was advised of the Crown being prepared to accept a plea on a lesser charge but the fact of the matter is that the indictment remained in its form carrying the conspiracy subsequent to that date and it seems that it stayed that way until Mr Bates became involved and then the indictment was amended to delete the reference to a conspiracy and in lieu thereof provide for the offences of attempting to possess the heroin with intent.

[That] occurred relatively shortly prior to the trial scheduled for 12 July and of course there were some other matters that you pleaded not guilty to and, in the end, the Crown, quite properly, in my view accepted the pleas of guilty on a lesser number of counts in full and final satisfaction of all of the counts on that indictment. I have also been told of the personal problems that you have had over the last few years whilst in custody that would have distracted you from giving attention to these matters.

So my view is that there should be a discount from the 8 to a lesser figure. Before I express what that figure is and also go on to mention that it should be added to by the – or with some small allowance for your vulnerability, if I could move across to the second count where I have said the starting point from a totality point of view was 12 years? There should be a discount for your plea of guilty on that as well but I don't think the discount should be as great as for the other indictment.

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The reason I say that is because this indictment carries the single count which relates to the offence in December 1996. It seems to me that this indictment could have been considered separately to the first indictment. It related to a subsequent period of time and it seems to me in many respects quite separate and distinct.

Because of the circumstances and the absence of 'much, if anything, by way of defence' the discount for that plea of guilty should be less."

59 The learned Commissioner discounted the 8 years' total sentence on the first indictment to a sentence of 5 years, on the basis that the majority of the discount was for the pleas of guilty. In relation to the second indictment there was a reduction from the starting-point of 12 years to 10 years in respect of which most of it was said to relate to the plea of guilty with a "relatively small component" for vulnerability. The two terms of 5 years and 10 years were directed to be cumulative. This was not considered a crushing sentence, and an order was made for eligibility for parole. The actual sentences that were imposed in respect of the 10 offences in the first indictment were as follows:

Count 1: Imprisonment for 1 year.

Count 3: Imprisonment for 1 year.

Count 4: Imprisonment for 1 year.

Count 5: Imprisonment for 2-1/2 years.

Count 7: Imprisonment for 4 years.

Count 8: Imprisonment for 1-1/2 years.

Count 9: Imprisonment for 2-1/2 years.

Count 11: Imprisonment for 5 years.

Count 13: Imprisonment for 5 years.

Count 14: Imprisonment for 5 years.

60 All the sentences imposed for the offences in the first indictment were directed to be served concurrently with each other. An order was made that the applicant be eligible for parole with respect to each of the sentences imposed.

61 So far as the second indictment was concerned, the sentence imposed was imprisonment for 10 years and directed to be served cumulatively

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upon the sentences the subject of the first indictment, with eligibility for parole. All of the sentences were ordered to commence as from 26 November 1996.

Grounds of appeal

62 There were originally seven grounds of appeal, but grounds 4 and 6 were abandoned and deleted from the grounds by way of amendment. I propose to deal with the remaining grounds in the order in which they appear in the notice.

Ground 1

63 Ground 1 was as follows:

"The learned sentencing Judge erred by finding as a circumstance of aggravation:-

(i) that the applicant organised the acquisition of the heroin which was the subject of the indictment dated 1 September 1997.

(ii) that the applicant was the sole operator of a drug trafficking business.

(iii) that the witness Eddie Driver was subordinate to the applicant in the running of the business.

64 It was contended that it was not open to the learned Commissioner to make these findings. While it was accepted that the applicant was involved in the business, it was contended that, by finding that Mr Driver was subordinate to him, the "objective evidence" by way of the pre-sentence reports as to the psychiatric and psychological condition of the applicant was "completely undermined and nullified". This was said to be inappropriate and impermissible because the reports themselves were not the subject of challenge by the Crown. In my opinion, there is no substance whatsoever in these contentions. The evidence led and relied upon by the Crown on the trial of issues was directed to challenge the version of the facts given by the applicant to those who were involved in the preparation of his pre-sentence report and, in particular, the psychiatric and psychological reports.

65 The evidence of the undercover officer of statements by and actions of the applicant, in particular, coupled with the objective facts relating to

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the offences and the evidence of Mr Still, together with the other circumstances which I have mentioned, provided ample justification for the finding that, at least since February 1996, the applicant was the sole operator of the drug trafficking business. There was also the declaration that he was a drug trafficker. There was likewise evidence which the learned Commissioner was entitled to and did accept that, at the material time from February 1996 onwards, Mr Driver was subordinate to the applicant in the running of the business. Finally, the evidence before the learned Commissioner entitled him to conclude that it was the applicant who organised the acquisition of the heroin which was the subject of the single-count indictment. While it may possibly have been that Mr Driver was involved in identifying a supplier and facilitating the making of the contact in Melbourne, it was the applicant who purchased and paid for the heroin as a principal, took charge of the arrangements for packaging it for sale and employed Mr Still and his girlfriend to assist in that task, after there was some kind of falling-out with Mr Driver.

66 It was submitted on behalf of the applicant, in support of ground 1, that the effect of the Commissioner's findings was to "undermine substantially" the pre-sentence reports.

67 In my view, the situation was that the findings by the Commissioner, which were based on the totality of the evidence on the trial of issues, demonstrated a different set of circumstances from those apparently recounted by the applicant to the authors of the psychiatric and psychological reports. It was argued, however, that the Commissioner's findings were inconsistent with the views of Dr Pougher and Ms Cull that the applicant suffered a mild intellectual impairment, a chronic and significant depressive disorder, and had a personality type that was vulnerable in the extreme and susceptible to influence by others. It was submitted that those characteristics were such that they were very different from the person portrayed by Mr Driver, who had run "a single entity, sole purpose, multi-faceted drug-trafficking operation over an extended period of time". In my opinion, however, the evidence of the undercover officer was such that, when taken with all of the other evidence on the trial of issues, there was an overwhelming body of evidence to support the findings made by the learned Commissioner. While the applicant may have been vulnerable to external influences, and these had led him to become involved in the drug business in the first place, by reason of his homosexual relationship with Mr Driver, this served to explain but not excuse the fact that when Mr Driver was unable to continue to operate the drug business alone, the applicant took control of it as from at least February 1996, as the learned Commissioner found.

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68 It was submitted, however, that it was not open to the learned Commissioner to make the findings that he did. In particular, it was contended that it was not open to the learned Commissioner to be satisfied beyond reasonable doubt, on the basis of Mr Driver's evidence, that the applicant was the person who acquired the heroin in Melbourne, the subject of the single-count indictment, and that at that time Mr Driver was subordinate and the applicant was the sole proprietor or operator of the drug business, at least from February 1996. It was submitted that Mr Driver was a heroin addict with a history of offending, including offences of dishonesty. It was said that he was also a witness who fell into the general category of witnesses whose evidence needed to be approached with caution. He was "potentially an accomplice" with respect to the offences. It was conceded, however, that there was no evidence before the Court to say which of the various offences he was involved in, but, if he were disbelieved insofar as the events of 9 December 1996 were concerned, he could be found to be an accomplice.

69 With respect to the earlier series of offences, without actually identifying which offences he had been involved in, Mr Driver said that he was under the influence of the applicant, who would get him to go out and sell heroin for him or, more particularly, "he would have me prepare packages that he would then go and sell himself". The evidence of the undercover operative was consistent with that, because all her dealings were made directly with the applicant, who conducted himself in a way which was entirely consistent with his being a principal. Mr Driver's role, however, may well have involved him in packaging drugs which were being sold.

70 It was not put to the Commissioner that the evidence of Mr Driver should be treated as the evidence of an accomplice. It was, however, submitted before the learned Commissioner that he was a witness whose account should not be accepted because he had reasons to lie about and minimise his own involvement. The evidence was, however, general in nature and to the effect that, in return for the provision of sexual favours from the applicant, he would assist the applicant in the preparation of drug deals. In his evidence-in-chief, Mr Driver acknowledged that, when interviewed by the police shortly after the applicant was arrested on 9 December 1996, he said that he panicked and said that he did not know anything about it. He acknowledged that this was not the truth. His evidence was that he had not been involved in the purchase of the heroin by the applicant in Melbourne. He said that they were staying at a motel. When he got back to the motel from seeing his grandmother, the applicant

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told him he had purchased "8 ounces" and gave him a taste. He said the heroin was "good".

71 When cross-examined, Mr Driver was challenged regarding his inconsistent statements to the police. He said that he had not been using heroin since the applicant had been taken into custody on 9 December 1996. However, he later admitted in cross-examination that, after the applicant had been taken into custody, he assisted him by turning the Lake Monger residence into a boarding-house. He admitted that, at one stage, he went on a heroin "binge" on the rent money and used heroin a couple of times. The following passage also appears in the cross-examination of Mr Driver, after he said that he was visiting the applicant at Canning Vale Remand Centre because he was running his business and was on the payroll:

"You were emotionally upset at the time because of the fact of what had happened to him and you felt bad about it? --- No. He got justice.

I suggest to you that you confided in one of the prison support officers there, a woman by the name of Victoria Bradley?---Yes, I talked to her about it.

I suggest that you saw her for about an hour on 27 August of 1997. Do you disagree with that?---Yes.

I suggest that in the course of what was really an outpouring of your feelings at that time you said a number of things to her including the following; that you felt Cyril was the innocent victim and you were carrying guilt for Cyril being inside. Do you dispute that?---Yes.

That you stated to her it was your fault and that you should be inside, not Cyril?---No, I didn't say that.

Do you dispute you said that?---No, I didn't say that.

That you felt guilt that Cyril was still helping you with accommodation - - - ?---I was working for him.

- - - and trusted you even though you did the dirty on him. Did you say that to her?---No.

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Just so you understand what I'm reading from, Mr Driver, I'm reading from handwritten notes that were made at the time by Victoria Bradley. Do you understand?---Yes, I understand.

That you asked her for her opinion on what you should do and that she advised you you had to do the right thing which would relieve the stress and the guilt that you were feeling but it was ultimately your decision. Did you tell that to her?---No. None of that was mentioned.

You stated to her that you were now clean, but I suggest to you that in fact that was a lie, that you were still using?---I was on methadone.

You told her that you were under a great deal of stress due to the pressure of the guilt that you felt and pressure from your wife who was emotionally blackmailing you at the time in relation to the children. Did [sic] you tell her that?---Yes, I told her about Jesse was – she wouldn't let me see Jesse because I split up with her. I had another girlfriend, that's what it was, and she was dirty on me and that's why - - -

Was this the lady Rebecca that you had as a girlfriend?---Yeah.

…

Did you say to Victoria Bradley that your wife Gail knew the situation and was saying that if you told the truth you would lose the children?---If I what? Say that again, please?

If you told the truth you would lose the children?---Told what truth?

About your drug dealing?---I wasn't drug dealing.

And about your homosexual relationship with Cyril Watson?---I wasn't drug dealing. I was working for Cyril.

Did you tell Victoria Bradley that your wife knew of your relationship with Cyril and that she had used that to her advantage by demanding money or threatening to go to the police with the truth?---No.

…

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I said that Gail was pissed off that what – that I was back on the heroin, because she knew the thing that I was from Melbourne and that Cyril Watson had everything to do with it, was feeding me the heroin. That's what I told her."

72 Later, the following appears:

"Did you say to her that you wouldn't be able to do time in gaol?---No, I didn't say that.

Did you say to her that you wished you could undo the harm you had caused Cyril Watson?---No, I didn't say that at all, and if she has, that's all a big lie.

Did she say to you not to use Cyril, that he had already been hurt?---No, she didn't say that.

And that his love for you should not be abused?---What?

And that she said to you you should start acting responsibly?---Excuse me, I want to hear that – can I have that bit again?

Did she say to you that Cyril had already been hurt and that his love for you should not be abused?---No.

And can you explain to me any reason why she would write all these things down in contemporaneous notes on the day of the conversation?---I wouldn't have the faintest, to be honest with you.

I see. And if she was to testify to that effect - - -?---She can testify.

If she was to testify on oath that that is what you said to her, you would have to say, would you not, that she was telling lies?---Yes.

I see?---Well, she's bent it right around, what I said.

I see. The truth of the matter, I suggest to you, Mr Driver, is you as a heavy drug user, dealt in drugs to support your habit?---No.

Do you disagree with that?---No, I didn't - - -

Do you disagree with that?---I didn't deal in drugs.

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Do you disagree with that?---Say it again, the question.

You as a heavy drug user in heroin dealt in heroin to support your habit. Do you disagree with that?---No, I didn't deal. I just answered that.

You saw an opportunity to form a relationship with Cyril Watson to your advantage?---No, I didn't.

That you conned Cyril Watson into assisting you in your drug business?---No.

That Cyril Watson was obsessed with you, and indeed - - -? ---I know he was.

- - - expressed his love to you?---Look how far he went; look what he done.

That that went so far as he left his entire estate to you in his will, an estate that you knew ran into many millions of dollars. Correct?---That was for the power, the power he was using over me.

The power he was using over you?---Yes.

I suggest it was completely the other way around. You exerted power and control over him for your own gains which ultimately, if things went according to plan, would mean his entire estate became yours, Mr Driver. What do you say to that?---Did I tell him very often that I didn't want nothing to do with it? Ask him.

So you're saying that that's a lie, is it?---What? He wrote out a will.

What I just put to you - - -?---He wrote out a will to - - -

- - - that it was a part of the power you exerted over him. You used his obsession and love for you to your advantage which included ultimately the hope of getting his entire estate?---I don't understand the question.

All right; that you preyed on him to assist you in your drug-dealing business - - ?---No."

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73 Mr Driver denied that after the applicant was arrested on 17 May 1996 he had continued to deal in drugs in the applicant's absence. He also denied that the trip to Melbourne was organised by him with a person who was his supplier in Melbourne, and the reason that the applicant went to Melbourne was because he wanted to visit the Astor Cinema.

74 Victoria Bradley gave evidence of the conversation she had with Mr Driver after he had visited the applicant at Canning Vale Remand Centre. Without objection, she was able to read to the court her notes of the conversation which were made immediately after the conversation had ended. On 27 August 1997, Mr Driver had called in to her office to talk to her about his relationship with the applicant. The conversation lasted approximately an hour. The notes of the conversation were as follows:

"Conversation with Eddie Driver, Partner of Cyril Watson

Eddy came to see me after visit with Cyril. Concerned that he was doing the wrong thing by Cyril.

Felt Cyril was innocent victim carrying guilt for Cyril being inside stated it was his fault – he should be inside not cyril [sic].

Guilt that Cyril was still helping him with accommodation and trusted him even though he did the dirty on him.

Asked me for my opinion on what he should do – advised that he had to do the right thing and that would relieve the stress and guilt he was feeling – but it was his decision.

Stated he was clean – I could see he was under the influence of something – confronted him with this – no. he [sic] wasn't sleeping due to pressure of guilt and pressure from his wife who was emotionally blackmailing him with children.

She knew of situation – and was saying if he told the truth he would looze [sic lose] children.

wife knew of relationship (Cyril/Eddy)

She used this to her advantage by demanding money or threatening to go to police (?) with the truth.

Worried about payback (?) by her family

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Advised Eddy to have a big think about everything – that he was also suffering and needed support – maybe seek counselling .

Asked if I knew any good supports.

Informed me that he would try and help Cyril anyway [sic] he can. But he wouldn't be able to do gaol.

He wished he could undo the harm he has caused Cyril.

I asked Eddy not to use Cyril. That he is [sic has] already been hurt and that Cyril's love for him should not be abused. Asked him to start acting responsible [sic responsibly].

V Bradley

27/8/97"

75 It was not put to Ms Bradley by the Crown that these notes were in any way inaccurate. It was submitted on behalf of the applicant that Ms Bradley's evidence was a stark contradiction of Mr Driver's testimony and cross-examination in which he had denied making these statements and said, "They are all lies if anybody said I'd ever said this". It was further submitted that this constituted independent evidence which supported the objective findings made by Dr Pougher and Ms Cull regarding the nature of the relationship between the applicant and Mr Driver and, in particular, their assessment of the character and personality of the applicant.

76 As has been seen, the learned Commissioner pointed out that he had considered the evidence as a whole. In addition to the evidence of Mr Driver, Mr Still and Ms Bradley, there was the evidence contained in the various depositions making up the brief, including the attachments to the deposition of the undercover operative, the running sheets and transcripts of telephone conversations with the applicant. The learned Commissioner was clearly mindful of inconsistencies in the evidence of Mr Driver, as well as inconsistencies between his oral evidence at the trial of issues and his prior statement, as well as inconsistencies between his oral evidence at the trial of issues and that of Ms Bradley relating to the conversation with her on 27 August 1997. The learned Commissioner clearly regarded much of his evidence as unreliable. In particular, the Commissioner said:

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"I reject his evidence that he was not using heroin when he started up his relationship with the accused in or about 1996 after the accused had been released from prison in relation to the offences for which he was sentenced in 1992 in the Supreme Court of this State.

I also reject Eddie Driver's evidence to the effect that the accused's wealth was not something that attracted him towards the accused. I have no doubt that while Eddie Driver was and is no intellectual giant or intellectually clever by any means, he lacked nothing in basic cunning. I accept Eddie Driver's evidence beyond reasonable doubt that the trip to Melbourne in December 1996 was arranged by the accused. It was from this visit to Melbourne that the accused obtained the rock heroin which was subsequently crushed, mixed and packaged at the Red Castle Motel."

77 In my opinion, the following passage in the reasons for judgment in respect of the trial of issues shows that the Commissioner placed most reliance upon the evidence of undercover operative 26. In particular, the running sheet of the undercover operative relating to a conversation with the applicant on Thursday 28 March 1996 recorded, (referring to the applicant as T1):

"T1 mentioned that he was the owner of the Luna Cinema and had several "holiday houses and things" and was kept very busy that way, also that he did not need the money through dealing. He told me he had only got into the business as he was handed it by "Eddie" because "Eddie" had started to use too much himself and could no longer run the business.

Further discussions were had when T1 related a recent dream he had involving a 'voice' telling him to "try it" (meaning Heroin). T1 said that he was very mentally strong and had to be to not use, but stated he would not do that as once the 'slow' got a grip on you that was it."

78 In respect of this, the learned Commissioner said:

"… I have no doubt that as from at least 27 February 1996 the accused was the operator of a drug-selling business and regarded it as his business. Whether he took over a business from Eddie Driver or whether he was operating his own

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business before Eddie Driver arrived on the scene, or a combination of the two, matters not in my opinion."

79 The Commissioner then reached the conclusions to which I have already referred and, in particular, found that:

"The discussions between undercover operative 26 and the accused point to the accused as the operator of the business. The accused gave instructions. For example, the accused gave an instruction to Peter Still to deliver the shortfall of half a gram to undercover operative 26 on the opposite side of Lake Monger from where the accused lived on Lake Monger Drive."

80 The Commissioner referred to a number of other conversations of an extensive character with operative 26, which are referred to at pp149 – 152 of the appeal book, all of which support the conclusion that it was the applicant who was in charge. In particular, one conversation referred to at p151 the applicant referred to "my business", during a discussion with the undercover operative about the relevant merits between dealing in cannabis and hard drugs such as heroin. There was also at least one occasion on which a conversation took place with the undercover officer in which Mr Driver was present, but did not participate at all and was called over by the applicant at the very end of it. He was then given instructions by the applicant. The conversations also contained a reference by the applicant to "his supplier" in the context of selling heroin and cocaine to the undercover operative at Wembley for the sum of $5,100.

81 In my opinion, the content of these conversations presents a major obstacle to the submission on behalf of the appellant that all that could be derived from the running sheets recording the conversations with undercover operative 26 was that the applicant was involved in a drug business and "the salesman at the scene", but it was not open to conclude beyond reasonable doubt that it was his business only. It was submitted that the only way these conclusions could be supported was by accepting the evidence of Mr Driver. In my view, however, the learned Commissioner made it clear that he was not relying on the evidence of Mr Driver. On the contrary, he regarded his evidence as wholly unreliable. In my view, the statements made by Mr Driver to Ms Bradley were consistent with his feeling guilty because his own heroin addiction had been the cause of the applicant's becoming involved in and having to take over the drug business. Mr Driver's feelings of guilt were also consistent with his having minimised his role. It does not follow that the

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evidence to which I have referred was not capable of supporting the conclusion that the applicant had assumed responsibility for the business and Mr Driver had become subordinate to him.

82 It is significant that on 9 December 1996, when the applicant and Mr Driver returned from Melbourne and had a "fight" or an argument, it was the applicant who remained in possession of the heroin acquired in Melbourne and it was the applicant who requested Mr Still and his girlfriend to come to the Red Castle Motel and assist in packaging the heroin for sale. The inference is that, but for the "fight" Mr Driver would have provided that assistance.

83 In my opinion, the conclusions reached by the learned Commissioner were not only open on the evidence, but, particularly in the light of the evidence of the undercover operative, were fully justified. For these reasons, ground 1 fails.

Grounds 2 and 3

84 Grounds 2 and 3 of the grounds of appeal were as follows:

"The learned sentencing Judge erred by failing to give any or any sufficient weight to the evidence of the applicant's depressive disorder, intellectual impairment and personality traits; in particular the extent to which these conditions:

(i) Affected the applicant's moral culpability;

(ii) Diminished the applicant's suitability as a vehicle for general deterrence;

(iii) Diminished the significance of specific deterrence;

(iv) Aggravated the impact of a custodial sentence upon the applicant.

The learned sentencing Judge erred by finding that the applicant's depressive disorder, intellectual impairment and personality traits played no part in the commission of the offences."

85 The psychiatric report from Dr Pougher dated 9 August 1999 concluded that the applicant had an obvious intellectual impairment; a passive and insecure nature; a significant depressive disorder; and

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required antidepressant medication for the remainder of his life. The psychological report from Ms Cull dated 8 August 1999 concluded that the applicant was vulnerable to external influence; had a dependent personality; was emotionally insecure; and had chronic depression with suicidal tendencies. In a supplementary report dated 26 August 1999, Ms Cull stated that she was:

" … strongly of the opinion that his offending behaviour was significantly influenced by his personality traits and cognitive limitations and his vulnerability to external influences which these then presented."

86 It was submitted that these findings were such that they ought to have mitigated the applicant's sentence insofar as they related to his moral culpability, as well as having some impact with respect to the issue of deterrence, both generally and specifically. It was submitted that it was not a case in which these factors were wholly outweighed by countervailing factors.

87 In Wright v R (1997) 93 A Crim R 48 at 50-51, Hunt CJ at CL said:

"It is an accepted principle of sentencing that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. In most of the cases in which that principle is applied, the offender has suffered from a significant mental illness or retardation, but such a condition is not a necessary condition for the principle to be applied. Considerations of general (or even personal) deterrence are not rendered completely irrelevant, and the significance of the offender's mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case. The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general

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deterrence to the circumstances of the particular case. But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great."

88 Likewise, while the presence of psychiatric or psychological factors can be an important sentencing factor, the mere existence of a condition is not of itself sufficient. It must be shown that it contributed to the commission of the offence or that its existence reduced the moral culpability of the offender: Miller v R [1999] WASCA 66 per Pidgeon J at [23].

89 It was not suggested in this case that the applicant was unable to distinguish right from wrong or that he was unable to control his persistent offending conduct. It is apparent from the evidence that the applicant was well aware of the harmful effects of his drug-dealing, but persisted in it for profit and personal reasons. It cannot be said that the applicant's psychological or psychiatric condition reduced his moral culpability, or that it should have any significant impact on ordinary sentencing principles of general deterrence. While the applicant suffered from a significant depressive disorder and mild intellectual impairment, he did not have a "personality disorder" or any "cognitive impediment or significant dysfunction". His condition fell far short of the level of serious psychiatric illness which was regarded as a mitigating factor in other cases: cf Miller (supra) per Pidgeon J at [26] and R v Richards [1999] WASCA 105 per Pidgeon J at [44]. This was not a case where the circumstances of the offender were a significant factor in the commission of the offences or a case in which the applicant was in some way mentally deficient.

90 In my opinion, the comment of the learned Commissioner to the applicant that "frankly, your vulnerability is dwarfed by the seriousness of what you have done" was correct: cf Richards (supra) per Pidgeon J at [45]. It is not to be overlooked that the applicant committed the 11 offences for which he was being sentenced on this occasion while he was on parole for a very serious armed robbery and other offences committed in 1992. The most serious drug offence on 9 December 1996 was committed while he was on bail in respect of the earlier offences the subject of the multiple-count indictment. While a prior criminal record cannot serve to increase a sentence for a subsequent offence or offences, its existence clearly constitutes a counterbalance against matters which might otherwise be regarded as in mitigation: cf Veen v The Queen

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(1988) 164 CLR 465 per Mason CJ, Brennan, Dawson and Toohey JJ at 477 – 478.

91 In my opinion, the evidence on the trial of issues was such that the facts and circumstances, which formed the basis of the conclusions expressed by Dr Pougher and Ms Cull and were reflected in the pre-sentence reports could be put to one side and the learned Commissioner was entitled to form his own conclusions about the significance of the applicant's personality traits and the extent to which the applicant was responsible for his own actions, which he did. In my view, the conclusions reached by the learned commissioner were not only open to him, but were fully justified on the evidence before him.

92 Given that 10 of the 11 offences of which the appellant had been convicted rendered him liable in each case to a sentence of 25 years' imprisonment, I consider that the sentences imposed accorded sufficient weight to the applicant's intellectual impairment, personality traits and significant depressive illness. Indeed, having regard to the totality of the evidence and the level at which the applicant conducted the business, I am of the opinion that the sentences imposed were relatively moderate, having regard to the number, nature and gravity of the offences which he committed. While it might be conceded that the applicant's depressive disorder, intellectual impairment and personality traits played some part in the commission of the offences, I consider that the part which they did play was so relatively minor that it is impossible to say that, having regard to the moderate character of the sentences imposed, there has been any miscarriage of justice by way of the imposition of sentences which were, whether looked at individually or in the aggregate, manifestly excessive.

93 This conclusion is consistent with the findings by the Commissioner that the intellectual impairment played no part at all; his vulnerability was "dwarfed by the seriousness of what he had done" and only a small allowance in respect of his vulnerability was justified because of the importance of general deterrence. There was nothing by way of mitigation in the applicant's record. On the contrary, the applicant had been previously been convicted in 1992 on his plea of guilty to an offence of aggravated burglary and convicted after trial of an offence of armed robbery in company, two offences of unlawful assault causing bodily harm and an offence of robbery. On 23 January 1992 the applicant was sentenced by Seaman J in the Supreme Court to imprisonment for a total of 8 years with eligibility for parole. In sentencing the applicant the learned Judge said:

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"…the fact of the matter is that upon mere suspicion you took the law into your own hands and you organised an armed assault, late at night by a group of eight or nine people on the house of perfectly innocent people in terrifying circumstances.

When in the house, I find that you actively supported the assault on Appleby and deliberately damaged household effects. It was your promise of reward which drew in your co-accused."

94 The learned Judge also said that the offences were of "extreme gravity and committed by you in outrageous circumstances". In my opinion it follows that grounds 2 and 3 fail.

Ground 5

95 Ground 5 was that:

"The learned sentencing Judge failed to give any or sufficient weight to the applicant's rehabilitation since being remanded in custody in December 1996."

96 As counsel for the applicant conceded, this ground must be approached on the basis that, in relation to drug offences, matters personal to an offender carry little weight. It was submitted, however, that the applicant having been arrested on 9 December 1996 and incarcerated ever since, it was significant that he had sought to take his life on two occasions. It was in these circumstances that he was diagnosed as having a chronic significant depressive disorder. He was placed on medication which he would be required to take for the remainder of his life.

97 Since that time, he had made efforts within the prison system to improve and help the lives of others by working full-time within the infirmary. Major Foynes of the Salvation Army was called to give evidence on behalf of the applicant. In the period since the applicant's initial incarceration, he had spent lengthy periods of time with the applicant, almost on a daily basis. He testified that he found the applicant to be a pathetic type of character, and was very concerned for him because he was easily influenced by other people. He was very concerned about how the applicant would be able to assimilate himself back into the community because of his vulnerability.

98 There was an exhaustive plea in mitigation in which the applicant's rehabilitative efforts were canvassed. These were not dealt with specifically by the learned Commissioner. The mere fact that a

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sentencing Judge does not specifically refer to particular matters when passing sentence does not mean that he did not take them into account: cf Nevermann v R (1989) 43 A Crim R 347 at 350 per Malcolm CJ. In any event, in a case of this nature, where an offender consciously and deliberately, with full knowledge of the harm likely to be produced to those who use heroin, participates in the heroin trade for commercial gain, the personal circumstances of the offender and his or her favourable antecedents carry little weight by way of mitigation. In my opinion, such efforts by way of rehabilitation as may have been made during the time in which the applicant was on remand in prison were not entitled to any significant weight: Quach v R [1999] WASCA 210 per Ipp J at [13]; Gasteau v R [1999] WASCA 153 at [14] per White J; and Miller v R [1999] WASCA 66 at [16] – [17] per Pidgeon J.

99 Counsel for the applicant also supported this ground by reference to the fact that, during his period in remand, the applicant attempted suicide on two occasions. The first occasion was in 1996, following which he was admitted to Sir Charles Gairdner Hospital. The second occasion was in 1997, following which the applicant was admitted to Fremantle Hospital and, subsequently, Graylands Hospital. These suicide attempts are referred to in the report of Dr Pougher and are consistent with the applicant's chronic and significant depressive illness which prompted Dr Pougher to conclude that the applicant would require antidepressant medication for the remainder of his life. The effect of this medication, which the applicant had been receiving in gaol, had been to lift most of the depressive state and remove his desire to take his own life.

100 We were referred to Vartzokas v Zanker (1989) 51 SASR 277, in which King CJ said at 279:

"Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his re-establishment as an honourable law-abiding citizen. It is not confined to those who fall into wrongdoing by reason of physical or mental infirmity or a disadvantaged background. It applies equally to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing. The object of the courts is to fashion sentencing measures designed to reclaim such individuals wherever such measures are consistent with the primary object of criminal law, which is the protection of the community. Very often a person who is not disadvantaged and whose character has been formed by a good upbringing, but who has lapsed into criminal behaviour would

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be a good subject for rehabilitative measures precisely because he possesses the physical and mental qualities and, by reason of his upbringing, the moral fibre to provide a sound basis for rehabilitation."

101 It was submitted that, in sentencing, the learned sentencing Judge made no allowance for the applicant's rehabilitative efforts.

102 No authority is now required for the proposition that, in the case of serious drug offences, matters personal to an offender are accorded little weight. This was acknowledged by counsel for the applicant, but it was contended that the circumstances of the present case were sufficiently striking to warrant a reduction in the sentence imposed. In my view, having regard to the seriousness and number of the offences, representing as they did a course of dealing in heroin and other drugs of addiction at a relatively superior level over an extended period, including periods when the applicant had prior convictions and was on bail in respect of prior offences, the applicant's efforts at rehabilitation were not entitled to any significant weight.

103 In this context, it is important to note that grounds 4 and 6 were specifically abandoned and deleted by way of amendment. Ground 4 was that:

"The learned sentencing Judge erred by failing to accord sufficient weight to the applicant's pleas of guilty."

104 Ground 6 was that:

"The sentences of imprisonment imposed upon each of the counts in the indictment dated 12 July 1989 and the sentence of imprisonment imposed upon the single count in the indictment dated 1 September 1997 were manifestly excessive and disproportionate to the severity of each offence."

105 One can well understand why these grounds were abandoned. They were doomed to fail. In my opinion the moderate character of the sentences imposed sufficiently reflected the matters in mitigation which were relevant. For these reasons, there is no substance in ground 5.

Ground 7

106 Ground 7 was that:

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"The learned sentencing Judge erred by failing to have sufficient regard to the principle of totality, in particular by making the sentence of imprisonment imposed on the indictment dated 1 September 1997 totally cumulative upon the aggregate sentence of imprisonment imposed on the indictment dated 12 July 1999 thereby resulting in a sentence of imprisonment that was disproportionate to the overall criminality and crushing upon the applicant."

107 It is now and has been for some time clearly established that, when sentencing an offender with respect to multiple offences, the sentencing Judge is first required to impose an appropriate sentence with respect to each offence and then to consider questions of cumulation or concurrence, as well, of course, as questions of totality. In doing so, the sentencing Judge should have proper regard to what is a just and appropriate sentence for all the offences and avoid the imposition of an inappropriately crushing sentence: Pearce v The Queen [1998] HCA 57; (1998) ALJR 1416. Prior to the decision in that case there had in the past been different approaches to sentencing in cases of multiple offences. One approach was to consider the appropriate sentence for the overall behaviour which took place over the time within which it occurred. When this sentence was determined, the sentences for the individual offences would be imposed to fit in with the total. In Pearce, where there were overlapping offences, it was pointed out that an offender could be twice punished if the trial Judge had regard only to the total effective sentence that was to be or had been imposed on the offender. In that case, however, the charges arose out of a single episode in which the appellant had broken into the victim's home and attacked him. In that case it was held that, although the elements of the offences charged overlapped, they were not identical.

108 In Kauhanen v R [1999] WASCA 14 this Court left open the question whether a sentencing Judge was precluded by reason of the principles referred to in Pearce from first considering an overall sentence appropriate for the whole of the conduct or for imposing individual sentences. As Pidgeon J (with whom Malcolm CJ agreed) said in R v Richards [1999] WASCA 105 at [34]:

"If, however, a Judge is sentencing in respect of similar offences occurring on different occasions over a period of time committed against the one person, then the type of error considered in the case of Pearce would not arise. This Court in Kauhanen v R [1999] WASCA 14 left open the question

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whether a sentencing Judge is precluded by reason of the principles referred to in Pearce from first considering an overall sentence appropriate for the whole of the conduct or for imposing individual sentences. At some stage, for the purpose of judging totality, the question must arise as to what is the appropriate sentence for the whole transaction."

109 In the present case, the learned sentencing Judge, before fixing sentences for the individual offences, pronounced that the appropriate total sentence for the commission of the offences to which the applicant had pleaded guilty was 20 years' imprisonment. He stated that he would break this down to 8 years for the 10 offences on the first indictment and 12 years for the offence on the second indictment. It was submitted that, in doing this, his Honour fell into error.

110 As has been seen, those terms were discounted to 5 years and 10 years respectively on account of the totality principle. It was submitted that the resulting total sentence of imprisonment for 15 years was excessive in that, first, the total effective sentence of imprisonment for 15 years failed to have proper regard to the finding that in 1996 the applicant was engaged in a drug-trafficking business. In other words, although the offence charged in the second indictment occurred some months after the commission of the offences charged in the first indictment, it could properly be seen as a continuation of the business activities in which he was engaged at that time. It was submitted that the offences were not so sufficiently discrete or separate as to justify total cumulation. In my view, that submission is totally without substance. The offence committed on 9 December 1996 was committed while the applicant was on bail in respect of the earlier offences.

111 It was also submitted that the cumulation of the sentences resulted in a sentence which went beyond what was appropriate with respect to the totality of the applicant's criminality in all the circumstances. In particular, it was submitted that it was a sentence which failed to account for the applicant's intellectual impairment, depressive disorder and dependent personality. The consequence was that it resulted in a sentence that for a 52-year-old person was crushing, in the sense that it significantly diminished any reasonable expectation of a useful life after release: R v Yates [1985] VR 41.

112 These were a series of very serious drug-dealing offences. The series of offences which were committed in the early part of 1996 were quite separate and distinct from the offence the subject of the single-count

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indictment which was committed on 9 December 1996. While all of the offences were in the course of the applicant's conduct in the business of drug-dealing, in the end the question was whether the total sentence was proportionate to the degree of criminality involved: Mill v The Queen (1988) 166 CLR 59 at 62 – 63 per Wilson, Deane, Dawson, Toohey and Gaudron JJ; and Jarvis v The Queen (1993) 20 WAR 201 at 206 per Ipp J; and at 211 per Murray J. In my view, while the approach adopted by the learned Commissioner was not consistent with the approach adopted by the High Court in Pearce, on the assumption that such an approach was applicable in the present case, I am unable to accept that the totality of the sentences imposed was in any way manifestly excessive or crushing. In the past, this Court has recognised that imprisonment in the range of 7 to 10 years for possession of 75 to 150 grams of heroin is appropriate. Amphetamines are now considered in the same class of seriousness as heroin: Cottrell (1989) 42 A Crim R 31 at 36 – 37 per Pidgeon J; Darwell v R, unreported; CCA SCt of WA; Library No 970220; 9 April 1997 at 10 – 11 per Malcolm CJ; and Bellissimo (1996) 84 A Crim R 465 at 469 per Roland J; and at 471 per Anderson J.

113 The multiple-count indictment dated 12 July 1999 involved offences on nine separate occasions over a period of four months when the applicant sold, attempted to possess with intent to sell or supply, or possessed with intent to sell or supply significant quantities of heroin and other drugs. For such offences, the learned Commissioner's reduction from imprisonment for 8 years to imprisonment for 5 years represented a discount of some 37 per cent. In my view, having regard to the seriousness and gravity of the offences involved, the sentences imposed could only be regarded as relatively modest. In the case of the single-count indictment dated 1 September 1997, the applicant possessed with intent to sell or supply 222.5 grams of heroin of a purity ranging from 47 per cent to 87 per cent. The learned Commissioner reduced the sentence of imprisonment for 12 years to one of 10 years. The sentences imposed were relatively moderate in all the circumstances: cf Quach v R (supra), in which this Court recently upheld a sentence of imprisonment for 15 years for offences involving the large-scale distribution of heroin into the community. Although the amount of heroin involved in the latter case was more than in the present case, there are features of this case which make it more serious than Quach. In the present case, there was a total of 11 drug offences committed over a period of some eight months. The offences involved the distribution of a wide range of drugs, mainly heroin, but including amphetamines, cocaine and LSD. In relation to the multiple-count indictment, the applicant understood that he was selling
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goods to another non-user, that is, another large-scale dealer, quite high in the hierarchy of the drug distribution network; and some of the offences involved the sale or intended sale of hundreds of individual packages of drug. The offences the subject of the multiple-count indictment were discrete and separate criminal offences to the offences the subject of the indictment dated 1 September 1997. In the end result, I am of the opinion that the aggregate sentences were, if anything, moderate, having regard to the totality of the criminality of the applicant's behaviour. At all events, it cannot be said that they do not fairly and justly reflect the totality of the criminality of the applicant's behaviour to the extent that they were in any way crushing or excessive in totality: cf Quach v R (supra) at 17 per Owen J.

114 In my opinion, there is no substance in ground 7.

Conclusion

115 It follows, for the reasons which I have expressed, that I would refuse the applicant leave to appeal against sentence.

116 WALLWORK J: I agree with the reasons for judgment of Malcolm CJ. There is nothing I wish to add.

117 MURRAY J: Having had the advantage of reading in draft the reasons published by Malcolm CJ, I also agree that leave to appeal should be refused for those reasons.