Wood v The Queen
[2003] WASCA 16
•20 FEBRUARY 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: WOOD -v- THE QUEEN [2003] WASCA 16
CORAM: MALCOLM CJ
MURRAY J
MILLER J
HEARD: 6 FEBRUARY 2003
DELIVERED : 6 FEBRUARY 2003
PUBLISHED : 20 FEBRUARY 2003
FILE NO/S: CCA 105 of 2002
BETWEEN: EDWARD KEVIN WOOD
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal Law and Procedure - Sentencing - Aggregate term of 91/2 years imprisonment imposed for a series of drug offences committed on two dates - Extent to which they should be ordered to be served cumulatively - Aggregate term reduced to 71/2 years imprisonment - Turns on own facts.
Legislation:
Criminal Code (WA), s 557
Misuse of Drugs Act 1981 (WA), s 34(2)(a)
Result:
Leave granted, appeal allowed, sentences varied
Category: B
Representation:
Counsel:
Applicant: Mr P J Hogan
Respondent: Mr S E Stone
Solicitors:
Applicant: Andree Horrigan
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cameron v The Queen (2002) 76 ALJR 382
R v Bellissimo (1996) 84 A Crim R 465
R v White [2002] WASCA 112
Case(s) also cited:
Leonard v The Queen, unreported; CCA SCt of WA; Library No 990152C; 29 March 1999
Lowe v The Queen (1984) 154 CLR 606
Lowndes v The Queen (1999) 195 CLR 665
Maniaci v The Queen [2000] WASCA 195
Mill v The Queen (1988) 166 CLR 59
Quach v The Queen [1999] WASCA 210
R v Chick (2000) 114 A Crim R 417
R v Grein [1989] WAR 178
R v Pop (2000) 116 A Crim R 398
R v Ruich [2000] WASCA 84
Webb v The Queen, unreported; CCA SCt of WA; Library No 980257; 4 May 1998
JUDGMENT OF THE COURT: On 7 October 2000 the applicant's home was searched under warrant. In a shed at the rear of the property almost 160 grams of methylamphetamine were located in various lots with different degrees of purity. In addition the police found a quantity of ketamine tablets weighing 14.6 grams with a purity of 18 per cent. In various containers in the shed they also located nearly a kilogram and a half of cannabis leaf material. In addition, they found snap‑lock bags, electronic scales and a total of $16,085 in cash.
The applicant was charged with three offences, all committed on 7 October 2000: possession of methylamphetamine, ketamine and cannabis, in each case with intent to sell or supply. The offence of particular interest in the context of the present appeal is the offence of possession of the cannabis with intent to sell or supply, an offence punishable under the Misuse of Drugs Act 1981 (WA), s 34(2)(a) by a fine of $20,000 or imprisonment for 10 years or both.
Eight months later, on 3 May, the police returned and again searched the applicant's home under warrant. In the same shed they found a smaller amount of just over 36 grams of methylamphetamine in various places in the shed. There were quantities from small traces to much larger amounts and of varying degrees of purity. Again, they found snap‑lock bags, a quantity of Epsom salts, three sets of scales, one set of which had traces of methylamphetamine on them, and a coffee grinder bearing traces of methylamphetamine. Again, they found a large amount of cash, $34,011, in two separate amounts. In addition, they found a stick of explosive Powergel and a detonator. On this occasion, the applicant, who was on bail, was charged with two offences: possession of the methylamphetamine with intent to sell or supply and possession of an explosive substance in suspicious circumstances, an offence against the Criminal Code (WA),s 557.
The applicant was to plead not guilty and go to trial on indictment in the District Court. The trial dates were fixed for 11, 22 and 29 April. On 8 April 2002 the applicant pleaded guilty to all the offences. The learned sentencing judge described these late pleas as not showing any real remorse or any real degree of acceptance of responsibility or willingness to facilitate the course of justice. As her Honour put it, the commission of the offences was proved conclusively by the execution of the search warrants, a process which was videotaped. Her Honour observed that there really could have been no defence to the charges. Nonetheless, she said, quite appropriately, that the applicant deserved some credit for the pleas: cfCameron v The Queen (2002) 76 ALJR 382. The sentencing judge said that she would apply, "a minimal discount".
As to the criminality involved in the commission of the offences, again it seems to us that her Honour's assessment was expressed in appropriate terms. She noted that they were recidivist offences and, of course, the second group of offences were committed while on bail. The applicant has a history of prior offending dating from 1976, including a number of prior convictions for the cultivation and possession of cannabis.
Her Honour cited the decision of this court in R v Bellissimo (1996) 84 A Crim R 465 for the proposition that methylamphetamine is a drug at the most serious end of the scale of prohibited drugs. If it is not quite in the same category as heroin and cocaine, it is only marginally a less deleterious drug and, having regard to that consideration, her Honour, correctly, directed herself that the major consideration in respect of the trafficking of any substantial quantity of methylamphetamine must be deterrence, both personal and general. The applicant, her Honour found, had involved himself heavily in the distribution of the methylamphetamine, although she accepted that he was at the lower end of the chain of distribution.
There was ample evidence to support the conclusion that the applicant trafficked in the drug for profit. The finding of quantities of the drug in his possession on two separate occasions, the finding of the paraphernalia of drug distribution on both occasions and the finding, on both occasions, of large sums of money in the shed, which was obviously used for the purposes of drug dealing, unequivocally supported the conclusion to which the sentencing Judge came.
The applicant is a man of mature years, divorced from his wife since he was charged with these offences, although still having contact with her and his two children. The applicant claimed before her Honour that, while he was a regular user of cannabis for many years, he had commenced recently to use methylamphetamine as a form of pain relief. There was little in these or other aspects of the applicant's personal history which could provide any mitigation of punishment.
For the first group of offences her Honour imposed sentences of 5‑1/2 years imprisonment for the possession of the methylamphetamine with intent, 18 months imprisonment concurrent for the possession of the ketamine with intent and 2 years imprisonment, cumulative, for the possession of the cannabis with intent. For the second group of offences her Honour imposed a further 2 years imprisonment for the possession of methylamphetamine with intent and imprisonment for 1 year concurrent for the possession of the explosive substance. The aggregate term thus imposed was imprisonment for 9‑1/2 years. The sentences were backdated to commence on 4 May 2001, the day after the second group of offences were committed, upon which date, it appears, the applicant was remanded in custody. Eligibility for parole was ordered.
Her Honour explained that she thought it appropriate to make the sentences for the second group of offences run cumulatively, particularly because they were offences committed while on bail. Her Honour did not give any explanation for her decision to order the sentence for possession of cannabis with intent to be served cumulatively upon those imposed with respect to the methylamphetamine and ketamine in the first group of offences. She merely observed that, "The totality principle will ultimately affect the length of term appropriate to this case."
The applicant appeals against the sentence of 2 years imprisonment to be served cumulatively, imposed for the offence of possession of cannabis with intent. The grounds advance the proposition that the sentence itself was manifestly excessive or, as it is put, was "outside the range of sentences commonly imposed for sentences of this type". In addition, the grounds contend there should have been no order for cumulative service of this term, but it should have been permitted to be served concurrently with the other sentences imposed with respect to the possession of the drugs found on this occasion.
This Court was not moved to interfere with this sentence on the ground that it was manifestly excessive. It is abundantly clear from the remarks made by the sentencing Judge that her Honour committed no error of principle and gave proper consideration to all that was placed before her. Her conclusions of fact in the course of the sentencing process and her approach to the task seem to us, with respect, to involve no error in the determination of the duration of the individual terms imposed for any of the offences before her. Although in relation to the possession of cannabis with intent, a proper discretionary judgment might have produced a sentence of different length, the term of 2 years, in the circumstances, did not appear to us to be manifestly excessive.
However, we were persuaded that her Honour erred in directing that this sentence be served cumulatively upon the others and, at the conclusion of the hearing, we granted leave and allowed the appeal to the extent necessary to delete the order for the cumulative service of this term and to allow it to be served concurrently, resulting in an aggregate term of 5‑1/2 years imprisonment with respect to the first group of offences and a cumulative aggregate of 2 years imprisonment with respect to the second group of offences, a total of 7-1/2 years imprisonment with eligibility for parole.
The proper approach to the decision of the question whether sentences should be served concurrently or cumulatively was recently discussed by this Court in R v White [2002] WASCA 112. The judgment of McKechnie J, with which the other members of the Court agreed, discusses earlier authorities which support the view that to consider whether offences constitute "one transaction" as opposed to offences which represent different and distinct breaches of the law, can be helpful. However, there is no hard and fast rule and it is recognised that it is important always to give proper weight to the exercise of discretion by the sentencing Judge. The question ultimately is related to considerations of totality as, it seems, her Honour the sentencing Judge appreciated in this case. A useful test of whether there has been a proper degree of cumulacy will be whether, overall, the sentences imposed adequately reflect the totality of the criminal conduct with which the offences are concerned.
In this case that was a question to be applied to the first group of offences. There could be no quarrel with the appropriateness of an order for cumulative service of the second group of sentences, but in our judgment an aggregate term of 7-1/2 years imprisonment with respect to the first group of offences represented a response to the total criminality involved in the offences committed on that occasion which was too severe. Although the drugs were different, these offences were, we think, in the circumstances of this case properly to be regarded as different aspects of the one criminal activity by the applicant, the trafficking in drugs for profit. In our view, the individual sentences were of an appropriate length, but it was necessary to order that they be served concurrently.
Hence our decision to allow the appeal and vary the orders made below.