Ziino v The State of Western Australia

[2007] WASCA 222

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   ZIINO -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 222

CORAM:   OWEN JA

WHEELER JA
MILLER JA

HEARD:   11 SEPTEMBER 2007

DELIVERED          :   23 OCTOBER 2007

FILE NO/S:   CACR 134 of 2006

BETWEEN:   GAETANO GIUSEPPE ZIINO

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :HEALY DCJ

File No  :IND 647 of 2005

Catchwords:

Sentencing - Two counts of supplying MDMA (ecstasy) and one count of possessing MDMA with intent to sell or supply - Aggregate sentence of 7 years - Whether individual sentences manifestly excessive - Whether aggregate sentence offended totality principle - Sentence of 7 years not disturbed - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr T F Percy QC & Mr J A Davies

Respondent:     Ms L D O'Connor

Solicitors:

Appellant:     Andrew Maughan

Respondent:     Director of Public Prosecutions (WA)

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

Bosworth v The State of Western Australia [2007] WASCA 144

Colangelo v The State of Western Australia [2004] WASCA 294

Delovski v The Queen [2002] WASCA 88

Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Mill v The Queen (1988) 166 CLR 59

Olomi v The Queen [2004] WASCA 304

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Samuels v The State of Western Australia (No 2) [2006] WASCA 222

The State of Western Australia v Andela [2006] WASCA 77

Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107

Watson v The Queen [2000] WASCA 119

1. OWEN JA: This is an application for leave to appeal against sentences imposed on the applicant in the District Court. The applicant was convicted after a jury trial of offences of supplying and possessing prohibited drugs contrary to s 6(1)(a) and s 6(1)(c) of the Misuse of Drugs Act 1981 (WA).

Background

1. On 22 October 2004, the applicant supplied 198 MDMA (ecstasy) tablets to Daniel Simic, who was later tried with him as his co‑offender.  The tablets weighed 55.26 grams and their purity was determined at between 32 and 38%.  The estimated street value of the tablets was $9,900.  These tablets formed the subject of count 1 of the indictment.  Simic was found guilty of possession of the tablets (count 2 of the indictment), and sentenced to 2 years and 8 months' imprisonment.

2. On 9 December 2004 the applicant supplied 199 MDMA tablets to Kyle Happe.  The total weight of the tablets was 54.9 grams and their purity was determined to be 37%.  The estimated street value was $9,950.  These tablets were the subject of count 3 of the indictment.  Happe was searched by police at Perth Train Station where the tablets were found in his pockets.  Happe entered a fast track plead of guilty to possession of the tablets and was sentenced in the District Court to 3 years' imprisonment.

3. During the period between the offences, police surveillance was conducted around the applicant's property, along with telephone intercepts.  On 9 December 2004, after the applicant had supplied Happe with the tablets the subject of count 3, the police executed a search of the applicant's house.  MDMA tablets were found at various locations on his property, weighing 4 grams in total.  These items became the subject of count 4 of the indictment.  The police also found snap lock bags, $2,230 in cash and some knuckledusters.  These items were described as drug paraphernalia.  The applicant was subsequently arrested and charged.

4. The applicant was aged 40 at the time of the offences and 42 at the time of sentencing.  He was previously married and has a son aged 11 years and a daughter aged 9 years.  He shares custody of his children with his former wife.  He was previously a qualified panel beater and has owned his own business.  The applicant also worked as a private inquiry agent up until 2004.  He was receiving Centrelink benefits at the time of the relevant conduct.  Prior to the offences in this matter, the applicant had not been charged with any drug related offences.  He has four previous criminal convictions for relatively minor offences.

The charges and convictions

1. The applicant was charged with two counts of supplying a prohibited drug, pursuant to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (counts 1 and 3 of the indictment), and one count of possession of a prohibited drug under s 6(1)(a) (count 4 of the indictment). He was convicted on all three counts and sentenced to a total of 7 years' imprisonment in the District Court on 13 September 2006.

The sentences and sentencing remarks

1. In the pre‑sentence submissions, there was some reference by the State to the wider surveillance operation and the context in which the offences took place.  It seems that the drugs were destined for distribution to users in night clubs.  This may reflect evidence led in relation to the trial of the applicant's co‑offender.  The sentencing judge did not expressly mention this material in his remarks, and appears to have reached his conclusions regarding a course of conduct and the applicant's position in the drug trafficking hierarchy purely on the basis of the evidence led on the counts of the indictment.

2. The maximum penalty for contravention of each of s 6(1)(a) and s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) is 25 years' imprisonment, or a fine of $100,000, or both.

3. The sentencing judge introduced his sentencing remarks by saying that he was taking 'all those matters into account', including totality, the one‑third reduction required by the transitional provisions, and the 'last look' to be sure that the sentence was just and appropriate.  His Honour sentenced the applicant to 6 years' imprisonment for count 1 of the indictment.  He then said that the applicant should receive the same sentence for count 3, and taking into account totality, the applicant would be sentenced to 1 year to be served cumulatively to the 6 years for count 1.  For count 4 of the indictment, the sentencing judge imposed a further 12 months' imprisonment, to be served concurrently with the term imposed for counts 1 and 3.

4. This sentence structure resulted in a total aggregate sentence of 7 years' imprisonment.  The applicant was made eligible for parole, and would be required to serve 5 years in custody before parole could take effect.

The grounds of appeal

1. The applicant appeals against the structure of the sentences, contending that the sentencing judge did not apply the totality principle sufficiently or at all, and further that the sentence was a crushing sentence in the circumstances.  The applicant also claims that the head sentence of 7 years was manifestly excessive, and that the sentencing judge erred in law by failing to consider parity between the applicant's sentence and those imposed upon his co‑offenders.

2. The applicant required an extension of time before lodging the appeal notice.  On 2 March 2007, Roberts‑Smith JA granted the necessary extension and ordered that the application for leave to appeal be referred to the Court of Appeal.

The structure of the sentences

1. The totality principle has been thoroughly canvassed in the case law.  It is commonly expressed as the requirement for a sentencing judge imposing multiple sentences to calculate the sentence for each offence, then stand back and take a 'last look' to ensure that the aggregate sentence is proportionate to the criminality of the offences and is, in all the circumstances, just and appropriate: Samuels v The State of Western Australia (No 2) [2006] WASCA 222; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [18] ‑ [20]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 ‑ 308. The question in this appeal is whether an aggregate effective sentence of 7 years is just and appropriate in all of the circumstances.

2. Counsel for the applicant questioned the approach to sentencing taken by the sentencing judge.  The applicant submitted that the sentencing judge should have imposed two identical but separate sentences on each of counts 1 and 2, and then made count 2 partially concurrent to the extent necessary to give effect to the totality principle.  The submission is grounded in principles set out in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, 623 and Johnson, that a sentencing judge must fix an appropriate sentence for each offence before considering questions of cumulation and concurrency:  see Mill v The Queen(1988) 166 CLR 59, 63.

3. In Samuels, the court considered the structure of a sentence imposed upon an offender who was convicted of possession of a total of 315.8 grams of ecstasy and 23.5 grams of methylamphetamine.  The offender's personal circumstances were not dissimilar to those of the applicant.  The sentencing judge imposed a sentence of 5 years' imprisonment on count 1 and 4 years' imprisonment on count 3, with the latter to commence only when the offender had served 2 years of the sentence on count 1.  This resulted in an aggregate sentence of 6 years.

4. It was clear that the approach taken by the sentencing judge in Samuels was first to determine a sentence he thought was proportionate to the overall criminality of the appellant manifested by the two offences and then to structure the individual sentences accordingly.  Roberts‑Smith JA conducted a review of the relevant case law and concluded that the approach taken by the sentencing judge was not incorrect.  Following Johnson, where a similar approach to sentencing was said to give effect to the purpose of sentencing legislation, his Honour said (32):

   … [the sentencing judge] was entitled to take the approach he did here, of considering the overall criminality involved in the two offences and fixing an aggregate sentence commensurate with that, notwithstanding that the preferred approach is to first fix the individual sentences and then adjust the aggregate by orders for cumulation or concurrency.  His Honour took the course he did here to accommodate the principle of totality.

5. Roberts‑Smith JA acknowledged the difficulties in the approach adopted where a distortion of sentencing practices in relation to particular offences arises and carries a risk of double punishment.  This is the question that was considered in Pearce, where one set of facts gave rise to two criminal charges with overlapping elements.  However, such a situation can be distinguished here, as it was in Samuels, where the offences with which the applicant has been charged arise from completely discrete sets of facts.

6. During the pre‑sentencing submissions, the State contended that the circumstances of two offences occurring some six weeks apart meant that the sentences imposed should be cumulative.  This approach was adopted in Colangelo v The State of Western Australia [2004] WASCA 294, where the offences were considered to be separate but a continuation of a course of similar conduct of drug dealing (see McKechnie J, [25]). The sentencing judge seems to have proceeded on the basis that the imposition of the same term for each count to be served cumulatively might offend the totality principle. His Honour's awareness of the problem is reflected in his decision to impose a partially cumulative sentence.

7. In his sentencing remarks, his Honour found that the circumstances of the offences amounted to a course of conduct rather than an isolated incident:

   The offences for which you have been found guilty, particularly the two supply offences I'm referring to, are not isolated but part of a course of conduct which you were engaged in distributing drugs to people in the club scene; not directly yourself but through young people such as Mr Simic and Mr Happe.

8. In assessing the applicant's criminality, the sentencing judge was mindful that the applicant had been declared a drug trafficker under the Misuse of Drugs Act 1981 (WA), and had been forced to forfeit various sums of money found in his possession at the time of the search. He went on to state the totality principle, and then outlined the components of the imposed sentence of 7 years. Relevantly, he said:

   … taking all those matters into account, totality, and one‑third reduction and the final looking at the matter as to balance the sentences against earlier sentences, in relation to count 1, you are sentenced to six years' imprisonment.  On count 3, you should receive the same sentence except for totality, you will be sentenced to one‑year imprisonment on that to be served cumulatively.  On count 4, again taking into account totality, 12 months sentence to be served concurrently [emphasis added].

9. In my view, the italicised phrase demonstrates that the sentencing judge concluded that, as counts 1 and 3 were very similar offences in terms of criminality, they should attract the same term of imprisonment, namely 6 years for each, but that, consistent with the totality principle, only one year of the second sentence should be cumulative upon the first.

10. An assessment of comparable cases indicates that the sentence imposed on the applicant was relatively high.  However, the aggravating circumstances of the offences give rise to a conclusion that the applicant was engaging in a course of conduct of drug dealing for a commercial motivation.  The applicant is not a young man and he did not plead guilty.  The aggregate sentence of 7 years was within an appropriate range for offences of this type and reflective of the total criminality involved.

The severity of the head sentence

1. Counsel for the applicant submitted that the sentence of 7 years imposed by the sentencing judge was excessive.  Counsel argued that cases involving similar quantities and purities of MDMA indicate a sentencing range of between 3 and 4 years for the head sentence for a single count, even when taking into account that the applicant did not plead guilty.

2. To establish manifest excess, the applicant must show that the sentence was outside the range of sound sentencing discretion, with regard to the seriousness of the offence, the circumstances of the offending, the applicant's personal circumstances, and the sentences customarily imposed for offences of a similar nature:  Bosworth v The State of Western Australia [2007] WASCA 144, McLure JA, [10]. In cases of drug dealing, because significant weight is afforded to the purpose of deterrence, lesser weight may be given to matters personal to the offender: Watson v The Queen [2000] WASCA 119, Malcolm CJ, [102].

3. It has been noted that attempting to determine the level of severity of sentence by comparison with other cases can be of limited utility due to differences in circumstances of both offences and offenders:  Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107, McLure J, [46]; Samuels, Roberts‑Smith JA, [64].  A preferable approach is to determine whether a general range of sentences can be discerned for like offences by reviewing similar cases and attempting to achieve consistency in sentencing:  Bosworth, McLure JA, [12].

4. The sentencing judge reduced the sentence by one third in accordance with the transitional provisions.  Thus, his Honour's 'starting point' was 9 years under the old sentencing regime for each of counts 1 and 3.  A review of the case law suggests that this is within the discretionary range.  Some of the cases referred to in argument involved heroin rather than MDMA.  It is implicit in the approach taken during argument that both counsel assumed the utility of such a comparison.

5. In Delovski v The Queen [2002] WASCA 88, an applicant's appeal against a sentence of 9 years for sale of 524 grams of heroin was dismissed. That sentence had already been reduced by 3 years for a plea of guilty. Grakalic v The Queen [2002] WASCA 139; (2002) 27 WAR 19 involved an appeal against a 12 year sentence for trafficking 127 grams of heroin, with evidence of a course of conduct. In these cases, it is arguable that the applicants occupied higher positions in the commercial hierarchy. However, they suggest that a starting point of 9 years under the old regime is not inappropriate for an offence of this class.

6. In the written submissions the applicant drew the court's attention to The State of Western Australia v Andela[2006] WASCA 77, and Olomi v The Queen [2004] WASCA 304. In Andela the offender received a 2 year suspended sentence for possession of a comparable amount of MDMA tablets, which was amended to 18 months' immediate imprisonment on appeal.  The offender's personal circumstances were quite different to those of the applicant:  the offender was only 21 years old, had no prior convictions and pleaded guilty to the offence.  There was also evidence that his dealing was motivated by a need to support a drug habit rather than commerciality.

7. Olomi involved one count of possession of 247 MDMA tablets and one count of possession of methylamphetamine while the offender was on parole.  There was evidence of drug dealing and a continuous course of conduct.  Following an early guilty plea, the offender received an aggregate sentence of 5 years 4 months' imprisonment (2 years 8 months for each of the two counts).

8. Templeman J noted that a discount for an early plea could be as much as 35% [14] ‑ [16].  If the full discount had been applied the starting point may have been 6 years under the old regime, reduced to 4 years for the transitional provisions and then 32 months for the fast track guilty plea.

9. Olomi is an example of the limited utility which particular decisions in previous cases provide.  A substantial discount for the early pleas of guilty was given and the offender was treated very leniently.  The case does not mean that the 7‑year sentence imposed on count 1 in this case was outside the range of sentences appropriate for supply of a substantial quantity of MDMA tablets.  As I have already mentioned, the parties in the present case did not dispute the fact that comparison with sentencing in heroin cases was appropriate.  Those cases would suggest that the sentence imposed by the learned sentencing judge on count 1 was within the range of sentences that could have been expected.

10. The sentencing judge noted that MDMA or ecstasy is classified in the 'high category' of prohibited drugs due to the negative impact on the community of its use and trade.  His Honour went on to mention the importance of deterring the applicant himself and others in the community from dealing in MDMA, even in the context of his consideration of the applicant's personal circumstances.

11. It seems that the severity of the sentence reflected the sentencing judge's assessment of the overall criminality of the applicant's conduct, including that it constituted a 'course of conduct' and that the applicant was at the middle level of the drug commercial hierarchy.  In those circumstances, although the sentence was towards the higher end of an appropriate range, it was not outside the range.

Parity

1. The applicant submits that even having regard to the younger ages of his co‑offenders Simic and Happe, and Happe's plea of guilty, the starting point for the applicant's sentence should have been no more than 4 years' imprisonment.

2. In his sentencing remarks, the sentencing judge made note of his conclusion that the applicant was located on a higher position in the supply chain than either Simic or Happe, and that he was clearly engaging in the business of dealing drugs for commercial gain rather than to support a drug addiction.  This was an added aggravating factor not relevant to the sentences imposed on Simic and Happe.

3. I find it difficult to make a relevant connection between the sets of sentences when the applicant has been found guilty of two separate offences (and the others of one), he is involved in a course of conduct (and the others are not), he is higher up the chain of drug dealing than are his cohorts and he is considerably older than them.  In those circumstances I do not think the applicant can demonstrate grounds for a justifiable sense of grievance so as to attract the parity principle.

1. Happe entered a fast track guilty plea.  He was aged 23 at the time of sentencing  The sentencing judge held that the starting point for the sentence was 6 years' imprisonment, but reduced that to 3 years to take into account the transitional provisions and Happe's early plea of guilty.  The applicant submitted that if 6 years was the starting point under the old regime, then 4 years would be the starting point pursuant to the transitional provisions.

2. On one analysis of Happe's sentence, it could be said that he would have received 4 years if he had not pleaded guilty.  On that analysis, the applicant would have no justifiable grievance based on parity compared to Happe because, due to the accumulation, he is effectively serving three and a half years for each count.

3. Simic was tried with the applicant, found guilty and sentenced to a period of 2 years and 8 months' imprisonment, with a minimum term of 1 year and 4 months' imprisonment.  Simic was aged 23 at the time of sentencing.  On the analysis of the applicant's sentence as an accumulation over two counts, there is not a great difference between the 2 years and 8 months imposed upon Simic and the sentence imposed upon the applicant, particularly taking into account the mitigatory factors of Simic's younger age, and lower position on the supply chain.  The applicant's

sentence also accounts for the aggravating factor of the 'course of conduct', where Simic's offence could be said to be an isolated incident.  I can see little merit in the parity argument.

Conclusion

1. I would refuse leave to appeal.

2. WHEELER JA:  I agree with Owen JA.

3. MILLER JA:  I agree with Owen JA.