Yanko v The Queen
[2004] WASCA 37
•12 MARCH 2004
YANKO -v- THE QUEEN [2004] WASCA 37
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 37 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:29/2002 | 9 DECEMBER 2003 | |
| Coram: | TEMPLEMAN J HASLUCK J WALLWORK AJ | 12/03/04 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Both appeals allowed | ||
| B | |||
| PDF Version |
| Parties: | WAYNE JOHN YANKO THE QUEEN |
Catchwords: | Criminal law Appeal against sentence Possession of drug with intent to sell or supply Whether findings at sentence supported by evidence at trial Eligibility for parole Totality |
Legislation: | Criminal Code, s 689(3) Sentence Administration Act 2003 Sentencing Act 1995, s 89 |
Case References: | Foo v The Queen [2001] WASCA 406 Goddard v The Queen [1999] WASCA 281 Herbert v The Queen [2003] WASCA 61 Holton v Marriott [1970] WAR 85 Lim v The Queen [1999] WASCA 296 Lowe v The Queen (1984) 154 CLR 606 Pinkstone v The Queen [2003] WASCA 66 Quach v The Queen [1999] WASCA 210 R v Robertson (1989) 44 A Crim R 224 R v Simoni (1981) 147 CLR 383 R v Ward (1999) 109 A Crim R 159 Serrette v The Queen [2000] WASCA 405 Thompson v The Queen (1992) 8 WAR 387 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : YANKO -v- THE QUEEN [2004] WASCA 37 CORAM : TEMPLEMAN J
- HASLUCK J
WALLWORK AJ
- CCA 90 of 2002
- Applicant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT (CCA 29/02)
DISTRICT COURT (CCA 90/02)
Coram : ROBERTS-SMITH J
NISBET DCJ
File Number : INS 124 of 2001 (for CCA 29/02)
IND 162 of 2000 (for CCA 90/02)
(Page 2)
Catchwords:
Criminal law - Appeal against sentence - Possession of drug with intent to sell or supply - Whether findings at sentence supported by evidence at trial - Eligibility for parole - Totality
Legislation:
Criminal Code, s 689(3)
Sentence Administration Act 2003
Sentencing Act 1995, s 89
Result:
Both appeals allowed
Category: B
Representation:
Counsel:
Applicant : Mr S A Shirrefs SC
Respondent : Mr K P Bates
Solicitors:
Applicant : Amidzic & Associates
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Foo v The Queen [2001] WASCA 406
Goddard v The Queen [1999] WASCA 281
Herbert v The Queen [2003] WASCA 61
Holton v Marriott [1970] WAR 85
Lim v The Queen [1999] WASCA 296
Lowe v The Queen (1984) 154 CLR 606
Pinkstone v The Queen [2003] WASCA 66
Quach v The Queen [1999] WASCA 210
R v Robertson (1989) 44 A Crim R 224
(Page 3)
R v Simoni (1981) 147 CLR 383
R v Ward (1999) 109 A Crim R 159
Serrette v The Queen [2000] WASCA 405
Thompson v The Queen (1992) 8 WAR 387
Case(s) also cited:
Nil
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1 TEMPLEMAN J: On 14 December 2001, after a trial by jury in the Supreme Court, the applicant, Wayne John Yanko, was convicted of the charge of possession of methlyamphetamine with intent to sell or supply to another. On 1 February 2002 the applicant was sentenced by the learned trial Judge to imprisonment for a period of 12 years without eligibility for parole. His application for leave to appeal against that sentence is the subject of CCA 29 of 2002.
2 A short time later, on 2 May 2002, the applicant pleaded guilty to an earlier offence of cultivating cannabis plants with intent to sell or supply to another. He was sentenced in the District Court to 16 months' imprisonment without eligibility for parole. The sentence of imprisonment was ordered to be served cumulatively upon the sentence of 12 years' imprisonment imposed previously in the Supreme Court. The applicant's application for leave to appeal in respect of the latter sentence is the subject of CCA 90 of 2002.
3 The applicant contends in the first appeal (CCA 29 of 2002) that the learned trial Judge erred in sentencing him on the basis of findings said not to have been supported by the evidence at trial. It is said also that the sentence was manifestly excessive, and that the learned sentencing Judge erred in failing to allow eligibility for parole.
4 The applicant says in regard to the second appeal (CCA 90 of 2002) that the learned sentencing Judge in the District Court erred in the application of the totality principle and in failing to allow eligibility for parole.
Background
5 In May 1999, police officers attached to the Organised Crime Investigation Unit began to investigate the activities of Anthony John Pinkstone and certain of his associates, including the applicant. They obtained warrants and were able to intercept various telephone conversations. They ascertained that arrangements were being made for Mr Pinkstone to supply the applicant with a kilogram of methylamphetamine and one Michael Brazier with half a kilogram of cocaine.
6 On 7 October 1999, Mr Pinkstone presented himself at the Ansett Australia Cargo counter at Sydney Airport and arranged for two boxes to be consigned to Perth. When the boxes arrived at Perth Airport, police officers marked them for identification. One box, addressed to Innaloo Plasterers and Security, which was to have been collected by or on behalf
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- of Mr Brazier, was not collected, although he attempted to do so. The box was later found to contain a safe within which was a cash box which in turn contained 449 grams of cocaine.
7 The other box was addressed to "One on One Security", and marked for the attention of John White. It was collected from the Ansett Air Cargo office by the applicant, who signed for it in the name of John White. The surveillance operation proceeded and the applicant was ultimately arrested. Police took possession of the box. It was found to contain a safe within which was a cash box containing 725 grams of methylamphetamine of a high degree of purity, over 50 per cent. At the trial, there was evidence that such a quantity of the drug would be worth about $120,000 if sold as one lot.
8 Mr Pinkstone was charged with supplying methylamphetamine to another and with attempting to supply the cocaine to another. The applicant was charged with possessing the methylamphetamine with intent to sell or supply. Mr Brazier was charged with attempting to possess the cocaine with intent to sell or supply.
9 Mr Pinkstone and the applicant defended the charges brought against them but were eventually convicted at the end of a lengthy trial in the Supreme Court. Mr Pinkstone, whom the learned trial Judge considered to be more culpable than the applicant, was sentenced to 10 years' imprisonment on the charge of supply of methylamphetamine to the applicant (count 1) and 6 years' imprisonment on the charge of attempted supply of cocaine to Mr Brazier (count 3). The sentence on count 3 was backdated to commence from 13 October 1999 and the sentence on count 1 was made partially cumulative, so as to commence from 1 February 2002.
10 In imposing the sentence of imprisonment in respect of count 1 the learned sentencing Judge said that the starting point for the offence in question was a term of imprisonment of 14 years. His Honour discounted this by 4 years, to take account of certain mitigating factors, including co-operation with the authorities. Hence the sentence of 10 years' imprisonment on that charge. Mr Pinkstone was not made eligible for parole. However, that decision was reversed by the Court of Criminal Appeal: Pinkstone v The Queen [2003] WASCA 66.
11 The applicant was sentenced to 12 years' imprisonment for possession of the methylamphetamine with intent to sell or supply. The
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- sentence was backdated to 16 November 2001. The applicant was not made eligible for parole.
12 Mr Brazier pleaded guilty to the charge of attempted possession of cocaine with intent to sell or supply to another. The plea was made shortly before the trial was due to commence, this being some 2 years and 6 months after Mr Brazier was charged. He was sentenced to 4 years' imprisonment, to be served cumulatively on a sentence imposed upon him on 19 June 2000. He was granted parole eligibility.
The sentencing process in the Supreme Court
13 Mr Pinkstone and the applicant were sentenced on the same occasion. The learned sentencing Judge dealt first with Mr Pinkstone. His Honour then turned his attention to the applicant.
14 In so doing, the Judge referred in an unexceptional way to the applicant's criminal history in Australia and the United Kingdom. There, the applicant had been convicted of escaping lawful custody, the unlawful possession of a controlled drug and passing off a registered trademark. In Australia, a sentence of imprisonment of 6 years 9 months had been imposed on the applicant in August 1995, in respect of:
• one count of cultivating cannabis with intent
• four counts of possessing anabolic steroids with intent to sell or supply
• eight counts of stealing motor vehicles
• one count of fraud
• seven other counts of possessing cannabis and steroids.
15 The Judge said that although the latest offence was of a different character, it demonstrated that the applicant's "attitude towards the law and the distribution of drugs within the community has not changed despite the sentences of imprisonment which had previously been imposed on you."
16 The Judge went on to refer to the fact that the latest offence had been committed while the applicant was on parole: "It was a deliberate, calculated offence, engaged in as part of a drug-dealing business, a commercial activity on your part." His Honour then quoted from a pre-sentence report, to which I shall refer below.
17 Coming to the circumstances of the offence, the Judge said:
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- "there are some further matters of fact upon which I need to make specific findings."
In summary, the findings were as follows:
- 1. "…the methylamphetamine was intended for you, not anyone else".
2. "…[the methylamphetamine] was supplied by Pinkstone as a result of an arrangement between the two of you."
3. "…you knew approximately or in general terms how much of the drug there was; at least a substantial quantity."
4. "…this was a commercial transaction on your part for your own personal gain."
5. "…this transaction was an incident of a drug-dealing relationship between you and Pinkstone."
6. "…[Pinkstone] was your interstate source."
7. "You obtained and were in possession of the methylamphetamine for the purpose of distributing it within the State."
8. "In the form you received the drug, it was not far removed from the manufacturing process, and clearly required further treatment or cutting for distribution on the street. This indicates the level at which you were operating. You were certainly a principal. Your level of involvement was well up from that of a mere courier or mover of the drug."
9. "You [and Pinkstone] dealt with each other as equals albeit with different roles, albeit he was the one with the interstate connections through which drugs could be obtained."
10. "…you were trying to escape from the police in the vicinity of the service station at the intersection of The Esplanade and Canning Highway on 7 October 1999, and … you were doing so because you were conscious that you had been in possession of the methylamphetamine with intent to sell or supply it."
11. "…the foil packet located in your wallet on your arrest did contain methylamphetamine and … it was neither planted on you by the police … nor was it a mistake made by confusing it with a different foil found at the airport in respect of an unrelated investigation."
12. "(The methylamphetamine) was in a condition which showed it, …, to be quite close to the point of manufacture, which is in itself
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- an indication that you were at a high level of the business, albeit obviously not as high as Pinkstone."
18 In his grounds of appeal, the applicant contends that:
"3. The learned sentencing judge erred in finding that particular aggravating factors were established beyond a reasonable doubt.
4. The learned sentencing judge erred in sentencing the offender on the basis of facts not supported by the evidence led at trial."
19 The applicant gave no particulars of these grounds in his notice of appeal. However, the applicant's leading counsel provided some detail in his outline of submissions, which he addressed at the hearing of the application.
20 The applicant's first complaint is that it was not open to the learned sentencing Judge to conclude, beyond a reasonable doubt, that the applicant:
"was the ultimate recipient, who would then deal with the methylamphetamine as he saw fit."
21 Counsel submitted that the evidence was equally consistent with other possible roles to be played by the applicant in receiving the parcel of drugs from Mr Pinkstone.
22 It is then submitted that the evidence did not permit the conclusion that the applicant was operating his own drug distribution business, "rather than being a conduit or recipient on behalf of others". This is not put as an alternative submission, but in substance it is.
23 Thirdly, the applicant points out that the offence of which the applicant was convicted has the possession of methylamphetamine "at a Commonwealth place, namely Perth Airport" with intent to sell or supply it to another. It was submitted that it was impermissible to elevate the seriousness of that offence by reference to some intended subsequent conduct, for which the applicant had not been charged, outside the Commonwealth place.
24 In support of the third submission, the applicant relied on R v Simoni (1981) 147 CLR 383. That case is authority for the proposition that unless charged specifically, circumstances which aggravate an offence
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- cannot be taken into account in sentencing if that would render the offender liable to greater punishment than might be visited on him for the offence, absent of those circumstances.
25 In my view, that proposition was not relevant here. There is no suggestion that the Judge sentenced the applicant for anything other than possessing the methylamphetamine with intent to supply another. However, it was relevant for the Judge to consider the nature of the intent to supply: whether as a principal or a courier, for example. That was a matter to be inferred, it being necessary to draw the inference most favourable to the applicant which the evidence would allow.
26 I turn, therefore, to the first and second of the complaints referred to above: that the applicant was sentenced on the basis that he was "the ultimate recipient" of the methylamphetamine.
27 As appears from the summary of facts found by the learned sentencing Judge, his Honour did not use that expression. However, the findings I have numbered 1, 7, 8 and 9 above, are, I think, to that effect.
28 In my view, it was abundantly clear that the applicant was not simply a courier, although he tried to establish by his evidence that he was. He said Mr Pinkstone had asked him to collect a box of valuables at Perth Airport and "drop it off at 47 Salisbury Street". He said he knocked on the door, but elicited no response. He left the box there, having been instructed to do so in such circumstances. The applicant claimed he did not know the box contained drugs.
29 Clearly, this evidence was false. Furthermore, there was evidence that the applicant and Mr Pinkstone communicated with each other as dealers. They used mobile telephones in false names; the applicant had previously paid money to Mr Pinkstone; they spoke in coded language; Mr Pinkstone had visited the applicant only the day before the offence. The quantity of methylamphetamine was substantial and of a high purity. This, and the condition of the drug, indicated that it was close to the point of manufacture.
30 In my view, all these factors justified the learned sentencing Judge in drawing an inference which satisfied him beyond reasonable doubt that the applicant was much higher in the drug industry than a courier, although, as the Judge said, the applicant was not operating at a level as high as Mr Pinkstone's.
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31 There is, however, evidence which suggests that the applicant may not have been a sole principal, thereby casting doubt on the Judge's finding that the methylamphetamine was intended for the applicant "not anyone else".
32 That evidence is of telephone conversations between the applicant and Mr Pinkstone on 6 and 7 October 1999. On 6 October, after Mr Pinkstone had arrived in Perth from Sydney, he telephoned the applicant, apparently to arrange a meeting. The applicant said:
"Just give me twenty minutes man I'm just getting
…
Yeah, I'm just waiting for one more person that's it, but it should be right." [Supp AB 162].
33 Then on 7 October, after Mr Pinkstone had returned to Sydney, he telephoned the applicant, apparently to tell him he had made arrangements to acquire the methylamphetamine. The conversation included the following exchange:
"TP Yeah no worries mate. Um yeah what I'm gonna do yeah, uh it's all organised yeah unbelievable.
WY Why.
TP Oh you just wait 'til you see it.
WY Oh good good, well good for them anyway you know."
34 In my view, the reference in the first conversation to "one more person" and in the second conversation to the transaction being "good for them", suggests that the applicant was not the sole ultimate consignee for the drugs, but that others were involved also. In other words, I think there were inferences reasonably open which were consistent with a lesser degree of criminality than that attributed to the applicant by the learned sentencing Judge. That is not to say the Judge erred in making what is perhaps the ultimate finding (number 12 of those set out above); that the applicant was "at a high level of the business, albeit obviously not as high as Pinkstone."
35 I turn to findings 10 and 11. It is not suggested that these findings were not open to the learned trial Judge: rather, that it was not necessary
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- for his Honour to determine those matters, because they had no relevance to the sentencing process.
36 I accept that is so. And although it is not suggested that the Judge made express reference to the findings when determining the appropriate sentence, I accept there must be an inference from the fact that they were described as necessary findings, that his Honour did take them into account in some way. There is therefore at least the perception that the sentencing discretion may have miscarried.
37 That is not the end of the matter however. On an appeal against sentence, this Court may interfere only "if they think that a different sentence should have been passed": Criminal Code, s 689(3).
38 In submissions made to the learned sentencing Judge the Crown relied on the decision in Foo v The Queen [2001] WASCA 406. There, Parker J (at par 71) referred to the view expressed in Quach v The Queen [1999] WASCA 210, and Serrette v The Queen [2000] WASCA 405, after reviewing many sentences, that a sentencing range of between 11 to 15 years' imprisonment was an appropriate starting point for a first offender, who was a courier in possession of 600 - 700 grams of heroin, with a purity of between 55 - 65 per cent, and who committed the offence for commercial gain.
39 In the present case, there were 725 grams of high purity methylamphetamine, a drug which is now regarded as being on a par with heroin: Lim v The Queen [1999] WASCA 296. The applicant was at a higher level in the hierarchy than a courier. He was not a first offender and he committed the offence for commercial gain.
40 In those circumstances, I consider that the sentence of 12 years' imprisonment imposed on the applicant was as lenient as it could reasonably have been. I appreciate that his sentence was only two years below the starting point for Mr Pinkstone. However, in my view, that reflects the fact that Mr Pinkstone's sentence was unduly lenient.
41 In Goddard v The Queen [1999] WASCA 281, this Court referred to Holton v Marriott [1970] WAR 85 and R v Robertson (1989) 44 A Crim R 224, in which it was said that "the parity argument must give way in the face of a patently inadequate sentence imposed upon a co-offender by another court" (at par 41, per Pidgeon J, with whom Murray J agreed: Kennedy J dissenting). In other words, as Murray J said (at par 50, paraphrasing Brennan J in Lowe v The Queen (1984) 154 CLR 606 at 617:
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- "…it was not the law that the appellate court was bound to reduce the greater sentence under appeal so as effectively to convert a situation in which there was one wrong sentence and one right sentence to one in which both sentences were wrong."
42 That, I think, would be the consequence of reducing the applicant's sentence. I would not, therefore, disturb the sentence of 12 years' imprisonment imposed on the applicant.
43 I turn to the question of parole.
44 The learned sentencing Judge declined to make the applicant eligible for parole for reasons including his age, his previous convictions, his lack of remorse, "the observations and comments in the pre-sentence report" and the fact that the applicant had given an account of his conduct which was "entirely untrue and … a fabrication" [AB 143]."
45 His Honour went on to say:
"Although you have complied with community work and parole conditions in the past, the present offence was committed while you were on parole. As I have said, it was not a spontaneous offence but one deliberately committed as part of a drug-dealing business relationship between you and Pinkstone. It is an extremely serious offence. The quantity and purity of the methylamphetamine puts it towards the top of the scale.
Your part in the activity reveals a degree of sophistication in the conduct of it and the commission of the offence. I refer to the use of mobile telephones in false names, your obvious concern about the possibility of police monitoring and surveillance and the measures taken to defeat those.
I am conscious that parole serves to mitigate punishment as well as provide an opportunity for rehabilitation. In my view neither of those considerations is here sufficient to justify making such an order and I decline to do so."
46 One of the comments made by the author of the pre-sentence report was that:
"…unless Yanko develops a greater insight into his behavioural patterns they are likely to continue, rendering him unlikely to be suitable for community based supervision in the near future."
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47 The Judge referred to that comment. He noted that it was not directed to parole, but said that it was "apt in that context also" [AB 140].
48 It is submitted on behalf of the applicant that the Judge failed to have regard to the provisions of s 89(2)(d) of the Sentencing Act 1995, which required his Honour to have regard to (inter alia):
"circumstances relevant to the offender or which, in the court's opinion, might be relevant to the offender at the time when the offender would be eligible for release on parole if a parole eligibility order were made;"
49 This failure, it is submitted, is reflected in the fact that the Judge had regard to the applicant's suitability for community based supervision "in the near future".
50 In my view, it is by no means clear that the Judge did err. As I read his Honour's comment, he may well have intended to refer to the long term, as well as "the near future". That is because he went on to say:
"I would go further and say that in the evidence in this trial, and the nature and circumstances of the present offence against the background of your previous offending and the terms of imprisonment, there is nothing which I would be prepared to regard as indicating a prospect that you might develop that insight."
51 Although "the philosophy of the [Sentencing] Act suggests a bias towards [parole] eligibility", it is still necessary to find something in the materials before the sentencing Judge "which points positively towards the appropriateness of parole": Thompson v The Queen (1992) 8 WAR 387 at 395. And even if such material exists, the question of parole still involves the exercise of discretion.
52 In the present case, the only material to which the applicant's counsel was able to point, was that the applicant was not a danger to the community, and that although the present offence was committed while the applicant was on parole, it was "towards the very end" of the parole period [TS 44-5]. Counsel submitted also that the sentence was "very significant" and that there was now a disparity between the sentence imposed on the applicant and Mr Pinkstone. This is because as I have noted, the Judge's decision not to grant parole eligibility to Mr Pinkstone was overturned on appeal.
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53 In my view, to say that the applicant is not a danger to the community begs the question. Clearly he presents no danger while he is in prison, but there was little, if anything, in the material available to the Judge to suggest that he would not re-offend on his release. That being so, I do not think it could be said that the Judge's discretion miscarried in relation to parole eligibility.
54 However, I am persuaded by the disparity argument. Accepting that parole serves also as mitigation of punishment, I think the applicant would have a justifiable sense of grievance if not granted parole, now that parole eligibility has been granted to Mr Pinkstone.
55 In reaching that conclusion, I am mindful of the fact that s 89 of the Sentencing Act has been amended in such a way as to remove that bias in favour of parole which existed previously. Mr Pinkstone's appeal was heard before the amendments came into force. However, the discretion to grant parole still exists: and a later pre-sentence report, to which I shall refer below, did contain a recommendation for parole.
56 In all the circumstances, I would now make the applicant eligible for parole also.
57 As a result of the Sentencing Legislation Amendment and Appeal Act 2003, and the Sentence Administration Act 2003, it will be necessary to re-sentence the applicant to a term which is two-thirds of that which was imposed on him before the coming into force of the above Act.
58 I would therefore vary the applicant's sentence to 8 years' imprisonment, with eligibility for parole after serving 6 years. The sentence would be backdated to 16 November 2000.
The sentencing process in the District Court
59 Two months after the applicant was sentenced in the Supreme Court, he appeared in the District Court at Perth, charged with cultivating cannabis plants between 1 February 1999 and 2 September 1999, with intent to sell or supply. The applicant was remanded in custody on 3 April 2002 pending the preparation of an additional and updated pre-sentence report, he having decided to plead guilty to this offence.
60 The additional pre-sentence report is dated 22 April 2002. It refers to the fact that the applicant agreed essentially with the statement of material facts concerning the cannabis offence.
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61 In essence, the applicant agreed that a house had been set up for the cultivation of cannabis. He said a co-offender was the person responsible for the organisation of the scheme. The applicant contended that his own role was limited to that of financial backer of the cultivation operation.
62 The pre-sentence report concluded with a recommendation that, given the applicant's willingness to address the issues relating to his offending behaviour and his need for support when reintegrating back into the community after a lengthy period of incarceration, the applicant was considered suitable for parole upon completion of certain programmes to address cognitive and behavioural issues.
63 The applicant was sentenced in the District Court on 2 May 2002. It appears from the sentencing remarks that the learned sentencing Judge took account of the sentencing remarks of the trial Judge in the Supreme Court and the two pre-sentence reports.
64 The District Court Judge was of the view that the applicant's sentence should be somewhat less than the sentence of 18 months' imprisonment with parole, imposed upon his co-accused in respect of the cultivation of cannabis offence. His Honour therefore imposed a sentence of 16 months' imprisonment. The sentencing remarks conclude with this passage:
"In relation to this matter, you are sentenced to 16 months' imprisonment. I cannot see there is any reason why that sentence should not be served cumulatively on your present sentence. They were different enterprises, although both enterprises involve drugs of a different nature.
I do not intend to make a parole eligibility order because of your antecedents and the fact that you committed other offences whilst on parole. I bear in mind what the pre-sentence report has said in relation to your attitude now that you are facing this very long sentence, in relation to your intention to reform, and that is one of the purposes of parole, to allow for supervision of reformation, but under the circumstances you are currently facing, I cannot see that any order is necessary to be made by me in relation to parole and I do not make a parole order in your case, so that period of imprisonment is to be served cumulatively on your present sentence. That is the sentence of the court."
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65 There are two grounds upon which the applicant seeks leave to appeal. They are:
"1. The learned sentencing judge erred in the exercise of his sentencing discretion by failing to order parole eligibility.
2. The learned sentencing judge erred in the application of the totality principle by ordering that the whole of the sentence be served cumulatively with any sentence of imprisonment already being served by the offender."
66 In relation to ground 1, I infer from the Judge's observation about no parole order being necessary, that his Honour had regard to the decision of the learned sentencing Judge in the Supreme Court not to make the applicant eligible for parole.
67 However, with respect, this did not detract from the Judge's obligation to consider the question of parole eligibility, even though that would have involved the difficult task of prognosticating so far into the future.
68 Because the Judge did not consider the matter of parole, I am persuaded that his Honour's discretion miscarried, and should now be re-exercised. Having regard to the more favourable pre-sentence report, I would now make the applicant eligible for parole in relation to the sentence of 16 month's imprisonment.
69 In the light of the recent sentencing legislation to which I have referred above, it would be necessary now to impose a sentence which is two-thirds of the original sentence, ie imprisonment for 10 months and 20 days, with eligibility for parole.
70 Turning to ground 2: the sole issue is totality.
71 The offence of cultivating cannabis with intent to sell or supply was quite separate from the offence for which the applicant was sentenced in the Supreme Court. Originally, and subject to the totality principle, separate and unrelated offences attract cumulative sentences: R v Ward (1999) 109 A Crim R 159.
72 A cogent explanation of the totality principle was given by Anderson J in Herbert v The Queen [2003] WASCA 61 at pars 144 - 155, in the following terms:
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- "144. ....the reason why a person does not get 16 years for two crimes each worth eight years is that by the time that person has served the first sentence all of the recognised sentencing objectives (protection of the public, deterrence, punishment, retribution, reformation, public denunciation, and so on) will have been achieved for the most part, leaving no purpose in requiring the person to serve another full eight years for the second crime. A case which clearly reveals this to be the logical basis for the principle of totality is Magee v The Queen (1980) WAR 117. The offender had committed two acts of rape 16 days apart. He was sentenced to 7 years' imprisonment in respect to the first and 8 years' imprisonment in respect to the second and an order for cumulation was made resulting in an aggregate term of 15 years with a minimum of 10 years. The Court of Criminal Appeal (Burt CJ, Wickham and Wallace JJ) held that whilst each of the sentences of 7 years and 8 years respectively, when considered separately, was correct, when added together the result was too long. Wickham J (with whose judgment Burt CJ and Wallace J agreed) said at 119:
'[it] in my opinion is longer than is necessary to meet the various purposes of criminal punishment - retribution, deterrence and reformation. A custodial term which is longer than is necessary is too long and is not in the public interest. In addition to the matter of public expense, one of the purposes of sentencing might be frustrated in that the offender might come out of prison worse than he went in and thus be more likely rather than less likely to be a continuing community problem. I have many times repeated in one form or another what I said on 19 March 1973 in Thomson v R (CCA No 45 of 1972, unreported) and I repeat it yet again:
'In the area of sentencing, enough to meet all the various considerations is enough. More than enough is wrong because the excess is not only purposeless but might be harmful … the problem does not involve questions of leniency or severity,
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- or any other abstract notion, but a hard headed attempt to work out a sentence which in all its aspects is most likely in the long run to afford the greatest public benefit and protection by offering the best hope that the criminal will not offend in a similar way again and that others will be deterred from so offending.' '
- 145 I take this to mean that an aggregate sentence arrived at by totting up the individual sentences invariably will be too long not because of abstract notions of exponentiality but because the quantity of years in the sentence is more than is fairly necessary to achieve the purposes of punishment."
73 In my view, these principles apply to the present case. It should, I think, be accepted that the recognised sentencing objective will be achieved by the imposition of the sentence imposed on the applicant in the Supreme Court. Indeed, it appears from the subsequent pre-sentence report that it was the imposition of that sentence which, as it were, brought the applicant to his senses - to at last recognise the error of his ways.
74 That being so, it is unlikely that anything further will be achieved by the short additional sentence imposed on the applicant in the District Court. At least in part, this is a reflection of the fact that the offence of possessing the methylamphetamine with intent to sell or supply is very much more serious - in terms of the nature and quantity of the drug - than the cannabis offence.
75 In my view, therefore, the learned sentencing Judge in the District Court did not take sufficient account of the totality principle, with the result that his Honour's discretion miscarried.
76 In all the circumstances, I would make the sentence for possessing cannabis with intent, concurrent with that for possessing methylamphetamine with intent.
77 I would therefore grant the applicant leave to appeal and allow the appeal to the extent referred to above.
78 HASLUCK J: I have had the advantage of reading in draft the reasons for decision to be delivered by Templeman J. I agree with those reasons and with the orders proposed. It follows that as to the first appeal
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- (CCA 29 of 2002) I consider that the appeal should be allowed and the applicant's sentence be varied to 8 years' imprisonment with eligibility for parole after serving 6 years. The sentence would be backdated to 16 November 2000. As to the second appeal (CCA 90 of 2002) I consider that the applicant should be granted leave to appeal and I would allow the appeal to the extent referred to in the reasons of Templeman J.
79 WALLWORK AJ: I agree with the reasons and conclusions of Templeman J.
80 There is nothing I wish to add.
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