Taylor v The State of Western Australia [2006] WASCA 141 (12 July 2006)

Last Updated: 12 July 2006

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION : TAYLOR -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 141

CORAM : MARTIN CJ

WHEELER JA

ROBERTS-SMITH JA

HEARD : 23 MAY 2006

DELIVERED : 12 JULY 2006

FILE NO/S : CACR 113 of 2005

BETWEEN : BRETT TAYLOR

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : WILLIAMS DCJ

File No : IND 1590 of 2004

Catchwords:

Appeal - Criminal law - Sentence - Possession of methylamphetamine with intent to sell or supply - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr H Sklarz

Respondent : Mr M Mischin

Solicitors:

Appellant : Henry Sklarz

Respondent : State Director of Public Prosecutions

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

Collier v The Queen [2001] WASCA 69

Delovski v The Queen [2002] WASCA 88

Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55

Stapleton v The Queen [2004] WASCA 130

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

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

Case(s) also cited:

Bellissimo (1996) 84 A Crim R 465

Doyle (1994) 71 A Crim R 360

Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Pinkstone v The Queen [2003] WASCA 66; (2003) 140 A Crim R 83

Quach v The Queen [1999] WASCA 210

R v Hafner [2002] WASCA 211

SinagraBrisca v The Queen [2004] WASCA 68

R v Munro [2000] WASCA 285

R v Ruich [2000] WASCA 84

Watson v The Queen [2000] WASCA 119

1 MARTIN CJ: In my opinion this appeal should be dismissed for the reasons given by Justice Wheeler, with which I agree.

2 WHEELER JA: The appellant appeals his sentence of an effective 6 years and 8 months' imprisonment in relation to two counts of possessing prohibited drugs, namely, methylamphetamine, with intent to sell or supply. The sentence was made up of 2 years' imprisonment imposed in respect of one count, and 6 years and 8 months in respect of a second count, to be served concurrently.

3 The appellant was tried in the District Court and convicted after trial. The facts as found by his Honour, consistently with the verdict, were that, on 27 April 2004, police officers executed a search warrant at premises occupied by the appellant. There was found in the freezer compartment of the refrigerator, a plastic clip-seal bag inside a potato chip wrapper, and inside a package of garlic bread were nine clip-seal bags. The small package inside the potato chip wrapper weighed 5.8 grams, while the package inside the garlic bread contained one large lot of 237 grams and eight smaller lots, separately packaged, of approximately 27 to 28 grams (these last being roughly equivalent to the imperial ounce in which drugs of this kind are often dealt, towards the lower end of the distribution chain). Police also found two sets of scales, both of which had traces of methylamphetamine on them, clip-seal bags of the kind used to package methylamphetamine, $2000 in $50 notes, and a pen gun.

4 The appellant at first told the police officers that the smaller package of 5.8 grams was for his personal use and he denied knowledge of the larger amount. Much later in the same evening, he told police officers a story about two masked men coming to his house with a gun and threatening him, at the same time requiring him to place the large package in the freezer.

5 His Honour noted that the quantity of methylamphetamine was approaching three-quarters of a kilo, that some was already packaged ready for sale, and that the smaller packages had a sale price of $5000 to $7000 so that, even taking those small packages alone, they had a total sale price of at least $40,000. His Honour accepted a submission made on behalf of the State that the appellant was "further up the hierarchy than a street dealer", and his Honour also accepted that the total value of the drugs, if cut on the street, could be over $100,000, with their value as they then were packaged between $40,000 and $80,000. Of course, his Honour was not able to make findings about precisely what role the appellant

played in relation to the distribution of the drugs, or about how he came to be involved in the distribution of drugs, since the appellant had, at all times, denied the offence and provided no information to assist his Honour in that respect. However, it seems to me that the assessment which his Honour made was a careful and detailed one, leading to conclusions which were open to him on the evidence.

6 Turning to the personal circumstances of the appellant, he was 37 years of age and had a substantial number of convictions of various kinds, including convictions which were drug-related, although apparently they were related to cannabis. His Honour had before him some personal references, to which he gave some weight, although he indicated that matters of that kind could only play a minor part in sentencing in the circumstances of these offences. The appellant had a supportive partner and a young child, as well as supportive parents. He would be deprived of his assets as a result of the declaration of him as a drug trafficker. It appears that his Honour accepted a submission made by his counsel that some of those assets at least were unrelated to the drug trade.

7 There is only one ground of appeal, which asserts that the sentence imposed was manifestly excessive. There are two particulars.

8 The first particular is that his Honour gave undue prominence to the factors of the weight and purity of the drug. The appellant refers to the case of Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 as authority for the proposition that it is an error to elevate weight and purity of a drug to be the chief factors to be taken into account when sentencing in relation to drug offences. Rather, the knowledge of the offender, and the role played by the offender in relation to the drug, are important factors, where they can be ascertained.

9 In my view, it is clear that his Honour has not fallen into the error identified in Wong's case. In circumstances where, as here, an offender enters a plea of not guilty, there will often be many factors about the offender's knowledge and role which remain unknown, since the person best able to place that information before the Court denies any connection with the offence. However, as in this case, it is often possible to draw some inferences about those matters. His Honour here considered the weight and purity of the drug, its packaging, and the other items found in the appellant's possession, for the purpose of making a finding about the appellant's standing in the drug distribution hierarchy in relation to those drugs. It was an evaluation which made the best possible use of all available information, and no error has been demonstrated in it. This particular is not made out.

10 The other particular is simply that the sentence is outside the range of sentences customarily imposed. Interestingly, in relation to this particular, the submissions place significant weight on the weight and purity of drugs found in other cases, for the purposes of making an appropriate comparison.

11 To put the cases relied upon by the appellant in perspective, it is desirable to point out, yet again, that Parliament has provided very substantial penalties for offences of this kind, and that general and personal deterrence are of particular importance in relation to them. Those factors were emphasised again in Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107, where the Court stated that Stapleton v The Queen [2004] WASCA 130 can be taken as recent authority for the proposition that sentences of up to 15 years' imprisonment will be imposed for possession with intent to sell or supply a large quantity of methylamphetamine. The quantity in issue here could not be regarded as "large" by comparison with some other cases, but it is significant.

12 Turning to the cases relied upon by the appellant, it should first be noted that the sentence imposed upon him of 6 years and 8 months equates to one of 10 years' imprisonment prior to the transitional provisions. It is necessary to make that comparison, since the cases relied upon by the appellant are cases in which the sentences were imposed prior to those transitional provisions.

13 It should also be noted that comparable cases relied upon by the appellant are those in which sentences were imposed following a plea of guilty, and appropriate allowance must be made for the fact that a substantial discount is generally given in such cases, to reflect the offender's remorse and willingness to facilitate the course of justice. The discount will generally, although not always, be in the range of 20 to 35 per cent.

14 Turning to the cases most comparable in terms of weight and purity with this case, in Delovski v The Queen [2002] WASCA 88, a sentence of 9 years was imposed in relation to 524 grams of heroin of a 25 per cent purity. Although the drug is a different one, methylamphetamine is now regarded as being at the high end of the scale of seriousness and, if not equated to heroin, is to be regarded as being in "the same category" (Collier v The Queen [2001] WASCA 69, at [10]). Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55 involved nearly 54 grams of methylamphetamine of a 41 per cent purity. The sentence imposed

following the plea of guilty was 6 years and 8 months. These cases suggest that the sentence imposed by his Honour was well within the range appropriate to the amount of the drug, the appellant's role in relation to it, and the appellant's personal circumstances.

15 I would therefore dismiss this appeal.

16 ROBERTS-SMITH JA: I agree with the reasons for judgment of Wheeler JA. There is nothing I wish to add.

Authorities Cited16

Referred to (16)