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Supreme Court of Western Australia - Court of Appeal |
Last Updated: 18 October 2002
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION : MARKER -v- THE QUEEN [2002] WASCA 282
CORAM : MALCOLM CJ
WALLWORK J
MURRAY J
ANDERSON
J
STEYTLER J
HEARD : 9 AUGUST 2002
DELIVERED : 18 OCTOBER 2002
FILE NO/S : CCA 41 of
2002
BETWEEN : ANDREW CHICOTE MARKER
Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal
law and procedure - Sentencing - Possession of 53.9 grams of methylamphetamine
with intent to sell or supply and possession
of 0.1 gram of methylamphetamine -
Conviction on plea of guilty to both counts - Aggregate sentence of 6 years and
8 months - Whether
sentence manifestly excessive - Whether adequate discount
given for guilty plea - Lateness of plea - Mitigating factors
Words and
phrases - "Intent to sell or supply" - Whether plea of guilty amounts to
admission that the whole of the quantity was intended
for sale or supply -
Burden of proof - Whether sentencing Judge required to make a finding as to
portion of drug intended for sale
or supply
Legislation:
Criminal Code (WA), s 217A
Customs Act
1901 (Cth), s 233B(1)(ca)
Misuse of Drugs Act 1981 
(WA), s
6(1)(a) , s 6(2) , s 11
Sentencing Act 1995 (WA), s 15
Result:
Application for leave to appeal allowed
Appeal
dismissed
Category: A
Representation:
Counsel:
Applicant : Mr S A
Shirrefs
Respondent : Mr K P Bates
Solicitors:
Applicant : Amidzic & Co
Respondent : State
Director of Public Prosecutions
Case(s) referred to in
judgment(s):
Case(s) also
cited:
Brittain v The Queen [2001] WASCA 117
Brittain v The Queen
[2001] WASCA 92
Cameron v The Queen (2002) 187 ALR 65
Darwell (1997) 94 A
Crim R 35
De Luce v The Queen, unreported; CCA SCt of WA; Library No 960375;
19 July 1996
Duncan v The Queen (1983) 47 ALR 746
Gutteridge v The
Queen, unreported; CCA SCt of WA; Library No 940410; 5 August
1994
Legeng v The Queen, unreported; CCA SCt of WA; Library No 950391;
4 August 1995
Lowndes v R [1999] HCA 29; (1999) 195 CLR 665
Noonan v The Queen,
unreported; CCA SCt of WA; Library No 7818; 4 September 1989
R v
Atholwood (1999) 109 A Crim R 465
R v Spiero (1979) 22 SASR 543
"S" v The
Queen [2000] WASCA 34
Tsagaris v The Queen, unreported; CCA SCt of WA;
Library No 980721; 14 December 1998
1 MALCOLM CJ: I have had the advantage of reading in draft the reasons to be published by Murray, Anderson and Steytler JJ. The relevant facts are set out in the judgments of their Honours. There is no need for me to repeat them, except so far as is necessary to explain my reasons and, in particular, because the Court was invited to overrule the previous decision of this Court in Collins (1993) 67 A Crim R 104. For that purpose the Court was constituted by five Judges.
2 The case came before the Court as an application for leave to appeal against sentence. I agree with Anderson J that the applicant should be granted leave to appeal but that the appeal should be dismissed.
3 As Anderson J has pointed out, the application for leave
to appeal followed the imposition by the learned sentencing Judge of
an
aggregate term of imprisonment for 6 years and 8 months in respect of
one count of possession of a prohibited drug, methylamphetamine,
with intent to
sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act
1981 (WA) and one count of simple possession of the same drug, contrary to
s 6(2) of that Act. As to the first of these counts, on 11 March
2000, when apprehended, the applicant was found in possession of two quantities
of the drug. There was one quantity of 53.9 grams with a purity of
41 per cent and the other of 0.1 gram of a purity of
59.3 per
cent. Each was the subject of separate counts on the
indictment.
4 At a very late stage, the applicant offered, and the Crown accepted, a plea of guilty to simple possession in respect of the 0.1 gram and a plea of guilty to the possession of the 53.9 grams with intent to sell or supply. The applicant sought leave to appeal on a number of grounds. Suffice it to say that I agree entirely with the reasons of Anderson J concerning the grounds (a) and (f) in relation to the discount for the pleas of guilty. As to grounds (b) and (e), it was contended, first, that the learned sentencing Judge failed to give sufficient weight to two facts, namely, that the applicant was a user of the drug and any intent to sell or supply part of the drug in his possession was incidental to such use and, secondly, that the greater part of the drug was intended for his personal use and not for sale or supply to others.
5 In support of these contentions, it was submitted that the plea of guilty to count (3) on the indictment was not an admission that all of the 53.9 grams of the drug was possessed with intent to sell or supply it to others. No allegation to that effect was contained in the indictment. In this respect, the position in this case was said to be the said as in Collins, (supra). In that case, I said at 106:
"... the explanation offered in mitigation was inconsistent with the plea of guilty. By his plea the applicant admitted that he was in possession of the 1.2 kg with intent to sell or supply it to another. By
6 Pidgeon J said at 109 – 110:
"The relevant element of the offence is the applicant having the drug concerned with the intent to sell or supply it to another person.
7 Nicholson J agreed with me and with Pidgeon J. I accept the submissions on behalf of the applicant that insofar as the Court held in Collins that a plea of guilty is an admission that the offender had the intent to sell or supply the whole quantity of the drug found in his possession, it was wrongly decided and should not be followed. The three elements of the offence are, as pointed out by Anderson J, (i) possession; (ii) of a prohibited substance; and (iii) with intent to sell or supply. The quantity found in the possession of the offender is not an element of the offence: Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559 at 562 per Dixon J; and R v Aloia [1983] WAR 133 at 136 per Burt CJ.
8 In my opinion, however, unless and until something more is
said, the statutory presumption continues to apply to the whole quantity
of the
prohibited drug by force of s 11 of the Misuse of Drugs Act . It is
on this basis that I agree with Anderson J that an accused may enter a plea
of guilty to the offence as charged by reserving
the right to contend that the
intention to sell or supply did not extend to the whole quantity of the relevant
drug in his possession,
but only to some part of it. The effect of s 11(a)
is to facilitate the proof of guilty intent by shifting the onus of proof on
that issue. In my opinion, however, if nothing more
is said by the accused, a
Court would be entitled to conclude that the intention applied to the whole of
the quantity of the drug
in the possession of the offender. However, I agree
entirely that Collins was wrongly decided to the extent that it is
authority for the proposition that a person who pleads guilty to a charge of
possession
of a prohibited drug with intent to sell or supply, admits by that
plea, without qualification, that the whole quantity of the drug
found in his or
her possession was intended for sale or supply.
9 In the result, the burden of proof rests on the offender to show by way of mitigation that it was not his or her intention to sell or supply all of the drug. If nothing more is put forward after the plea of guilty, the sentencing Judge would be entitled to proceed on the basis that the presumption applied to the whole of the quantity of the drug in question.
10 In the present case, counsel for the applicant did not seek to lead any evidence on the issue. There was a submission from the bar table suggesting that the drug had been obtained by the applicant mainly for his own use. The learned sentencing Judge sought clarification. Counsel for the applicant then took instructions and told the Court that the applicant's "best estimate" of "the likely break-up" was that "up to a third would have been lost to distribution". It was against this background that it was contended that the learned sentencing Judge erred in that he failed to make any finding in relation to the matter with the result that the sentencing discretion miscarried.
11 I agree with Anderson J that it is not always necessary to make a specific finding about how much of the drug found in the possession of the offender was intended for sale or supply. As Anderson J rightly points out, the actual intention may be no more specific than to use some and to sell some. In the present case, at the time of the commission of the offence, the applicant had not in fact decided how much of the 53.9 grams of amphetamines he was going to use himself and how much he was going to sell or supply.
12 In the particular circumstances of this case, it was relevant that the applicant intended to use an unspecified portion of the drug himself and to supply the balance. It was on this basis that the learned Judge concluded that he would sentence the applicant as a user/dealer with the result that, not all of the drug would be supplied to others. In the circumstances, the information put before the learned Judge in mitigation did not permit of any greater degree of particularity in the finding for the purposes of the imposition of sentence.
13 So far as the burden of proof of the quantity the subject of
the relevant intention is concerned, the effect of s 11 of the Act is, as
Anderson J has pointed out, if the offender wishes to be sentenced on
the basis that the relevant intent did not apply to the whole
of the drug in his
possession, the burden of proof is on the offender to establish the relevant
facts on the balance of probabilities.
If he or she fails to do so, the correct
approach is to regard the presumption as applying to the whole of the quantity
of the drug
which was in possession. Consequently, I do not agree that
s 11 has no part to play in the establishment of the relevant facts for
sentencing purposes. Subject to that qualification, I agree with
the comments
of Murray J regarding the fact-finding process for sentencing purposes in
the context of s 617A of the Criminal Code and s 15 of the
Sentencing Act 1995 (WA). In the present case it was clearly open to the
learned Judge to be satisfied on the balance of probabilities that the intention
of the applicant was to sell some of the drug and to consume the remainder, was
a user-dealer but that the evidence did not permit
any more specific finding.
As to grounds 2 and 3 of the grounds of appeal, I agree with the reasons of
Murray J.
14 WALLWORK J: I have had the advantage of reading the reasons for judgment of Anderson J.
15 I agree with his Honour's reasons and conclusions. There is nothing I wish to add.
16 MURRAY J: I am grateful to have had access to the reasons for decision delivered by Anderson J. I agree with his Honour's conclusion that the appeal against the sentences imposed should be dismissed. Because the case was one in which the Court was invited to overrule its previous decision in the case of Collins (1993) 67 A Crim R 104, in relation to the facts which should be taken to be admitted by the plea of guilty to the charge of possessing methylamphetamine with intent to sell or supply, the Court was constituted by five Judges. In the circumstances, I think I ought to express, my views upon the case.
17 The applicant appeals against the sentences of 6 years and 8 months imprisonment for the offence of possession of the drug with intent to sell or supply, and 15 months imprisonment to be served concurrently for the offence of simple possession of that drug. The sentences were backdated to 19 February 2002 and the applicant was made eligible for parole.
18 As to the offence of possession of the drug with intent to
sell or supply defined by the Misuse of
Drugs Act 1981 (WA) s 6(1)(a) , I agree with
Anderson J, with respect, that the elements of the offence admitted by the
plea were the act of possession, that the
substance in question was
the prohibited drug, methylamphetamine, and that the intention of the applicant was to sell or supply "it", ie. that drug, to another. The quantity of the drug which the applicant had in his possession was not in this case (and indeed is, for good reason, never) pleaded in the indictment, nor was there any pleading as to whether the whole or some specified portion of the drug which the applicant had in his possession, was to be sold or supplied to another. Again, that would be a pleading which would be entirely unnecessary to sustain the indictment. It is trite to observe that the plea of guilty is an admission only of those facts which constitute the elements of the offence. It follows that in my view, Collins ought to be overruled.
19 Like Anderson J, I am of the view that, in relation to
the establishment of facts for sentencing purposes, s 11 of the
Misuse of Drugs Act has no part to play. It is a deeming
provision and, relevantly for present purposes, establishes the fact of
intention to sell or
supply the drug in question to another by proof of
possession of a quantity of the drug not less than that specified in Sch V.
It
is only necessary to rely upon that provision where the fact of intention
still remains to be proved, subject to the shifting of
the onus of proof for
which the section provides. That is self-evidently not the case where there is
a plea of guilty.
20 The fact finding process for sentencing purposes starts with the Criminal Code (WA) s 617A which, after a plea of guilty, requires "the material facts of the case" to be stated aloud to the court by the Crown. In R v Aloia [1983] WAR 133 at 136, Burt CJ said that where there was a plea of guilty:
"... the sentencing Judge can safely rely upon the statement of material facts made by Crown counsel unless as the facts extending beyond the elements of the offence they are challenged by the prisoner. If such facts, assuming them to be facts of aggravation, are so challenged, they must be proved. And I think the same may be said of the defence and the facts put up by counsel on behalf of the accused in mitigation. Such facts, if challenged, require some evidence to establish them, ... . A statement from the bar table of an exculpatory primary fact with no evidence capable of supporting it cannot, if challenged by the Crown, be enough. But such a statement if not challenged by the Crown may be accepted by the trial Judge."
In my respectful opinion, that remains good law.
21 As to the proof of such facts, whether by the Crown or the offender, the process is conditioned by the Sentencing Act 1995 (WA) s 15 which provides:
"To decide on the proper sentence to be imposed, or on imposing an order in addition to sentence, a Court sentencing an offender may inform itself in any way it thinks fit."
The strict rules of evidence do not apply.
22 The primary facts, as Burt CJ described them, extending beyond the elements of the offence, may be either aggravating factors which, in the Court's opinion, increase the culpability of the offender: Sentencing Act s 7(1), or mitigating factors which, in the Court's opinion, decrease the culpability of the offender or the extent to which he or she should be punished: Sentencing Act s 8(1). Aggravating factors must be proved by the Crown beyond reasonable doubt. Mitigating factors must be established by the offender on the balance of probabilities: Langridge v The Queen (1996) 17 WAR 346; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270. Shortly put, what is stated from either side of the bar table may be accepted unless challenged. If challenged, it will be for the Crown to prove any aggravating circumstance upon which it wishes to rely, beyond reasonable doubt, and for the offender to prove any mitigating circumstance upon which he or she wishes to rely, on the balance of probabilities.
23 In the final analysis, the findings of fact are to be made by the Judge and, as it was put by the majority in Olbrich at 280 [24]:
"... we reject the contention that a Judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt."
Of course, the sentencing Judge must accept as established those facts of which the plea of guilty constitutes an admission because they are elements of the offence and, similarly, those facts which must be taken to have been found by a jury returning a guilty verdict.
24 In this case, Groves DCJ accepted the essential facts as stated by the Crown prosecutor from which it was evident that Marker was despatched by others to make contact with Kezkiropoulos at the Sheraton Hotel and to obtain the sample of which he was convicted of simple possession, from the much larger quantity which Kezkiropoulos had in his possession. Marker was to try the sample to test its quality and potency with a view to a decision being made whether more would be purchased from Kezkiropoulos. When searched by Federal Police, Marker not only had that small sample in his possession, but also the further quantity of just under 54 grams of methylamphetamine of a different purity. He also had $687 in cash on his person. When interviewed by the police, he declined to make any statement.
25 His house in West Perth was searched and an assault rifle was found under his bed and, in his wardrobe, police found a locked briefcase. When opened, the case contained his passport, other personal papers, a handgun, a set of small scales and $7,600 in money. The scales were later found to have traces of methylamphetamine adhering to them.
26 Defence counsel told the Court that the applicant had been "tasked" to go to the hotel, collect the sample, and report on the quality or potency of that sample. He had been provided by way of payment with the other quantity of the drug which was in his possession, for which he was to pay $2,500. Counsel said that, ordinarily, on the basis of the Crown's evidence, that quantity of drug of that degree of purity would have been worth between $6,000 and $7,000. Effectively, therefore, it was being put to the Court that the applicant was being provided with a consideration of between $3,500 and $4,500 for his part in the process.
27 Groves DCJ made the finding supported by the evidence, that the applicant was a user/dealer who was, having regard to the nature of his involvement, "an integral part of the chain which, but for the competent work of the Federal Police, would otherwise have seen a substantial quantity of this prohibited drug ultimately on the streets of Perth". His Honour continued:
"Not only did you obtain the sample, but you were the person to report on the quality or potency of that sample, so to that extent you played a pivotal role in the scheme and you were vital to its success. It was not a minor errand, as your counsel understated your role. Rather you were to play an integral role in the whole deal and you did that for substantial reward."
28 No more precise finding could be made on the evidence, nor was any needed to make a proper evaluation of the applicant's culpability in respect of both offences of which he had been convicted. In particular, so far as the possession with intent was concerned, the Judge was not required to make a finding as to what portion of the drug the applicant may have used himself and what portion he may have sold or supplied to others. In this case, as in the vast majority of cases, the intention of the applicant about such matters would carry little weight and the Crown did not seek to prove that the applicant's possession of the larger quantity of drug was solely for commercial purposes, a matter commonly regarded by the courts as an important factor in aggravation of sentence.
29 The relevance of the quantity of the drug in the applicant's
possession with intent to sell or supply is, of course, that there
is the
potential for decisions to be made by the offender which would see at least a
substantial portion of the drug disseminated
in the community with the potential
for harm resulting from the deleterious effects of the drug upon the consumer,
as well as the
danger of the commission of serious criminal offences for the
purpose of satisfying the addiction to or craving for the drug which
is a common
result of its consumption. These are central mischiefs which the
Misuse of Drugs Act is intended to combat although, of course,
concentration upon the quantity of the drug possessed by the offender may, it is
appreciated,
lead to other relevant factors being overlooked or being downgraded
in importance and thus may lead to error in the sentencing process:
Wong v The Queen [2001] HCA 64; (2001) 76 ALJR 79,
85 [31], 89 - 90 [54] - [56].
30 In relation to the simple possession of the small quantity of amphetamine, it was, in my respectful opinion, proper for Groves DCJ to take the approach he did. This was not simply the acquisition of methylamphetamine for the applicant's own use. It was part of a wider project which may itself have led to the distribution in the community of a very much greater amount of the drug. That gave the act of possession a particular quality which was relevant to the exercise of the sentencing discretion, provided, of course, his Honour did not sentence for that offence as if he was punishing the applicant for his implication in an offence of attempting to obtain possession for sale of the substantial amount of drug which was in the possession with intent to sell or supply of Kezkiropoulos. Perusal of his Honour's sentencing remarks reveals nothing to support a suggestion that that error was committed.
31 As to particular matters of mitigation raised by the applicant as having been accorded insufficient weight by the sentencing Judge, I have nothing to add to the judgment of Anderson J. It seems to me also that, in the circumstances of this case, Groves DCJ dealt properly with the credit to be given to the applicant in respect of this belated pleas of guilty and I have nothing to add to the discussion by Anderson J of the relevance of the applicant's addiction to amphetamines, his youth and his efforts to secure his rehabilitation from addiction before he was sentenced. I agree with Anderson J about the lack of evidence of true contrition on the part of the applicant. In cases such as this, it has been recognised by this Court that the dangerousness of this drug and the harm it can cause is such that the predominant aim of a judge in sentencing is both particular and general deterrence. The capacity or factors personal to the offender to mitigate punishment is correspondingly reduced: Bellissimo (1996) 84 A Crim R 465 per Anderson J at 471.
32 When regard is had to the sentences passed in other cases, for such use as they may be, as well as to all the circumstances of this case, it seems to me to be quite impossible to conclude that in imposing a sentence of 6 years and 8 months imprisonment for the possession with intent and 15 months imprisonment to be served concurrently for the simple possession the exercise of discretion miscarried. Ground 4 of the application was abandoned and grounds 1 and 5, which made the complaints to which I have referred, are, to my mind, not made out.
33 Grounds 2 and 3 add a different element of complaint that Groves DCJ erred in the process he employed to explain the sentences he imposed. His Honour used a two-tiered process. It may be accepted that since the decision of the High Court in Wong, other cases in that Court and decisions of this Court, that his Honour erred in doing so. So far as the recent decisions of this Court are concerned, I need only refer to my judgment in Grimwood v The Queen [2002] WASCA 135; 22 May 2002 (with which Steytler and Miller JJ agreed) and R v Suarez-Mejia [2002] WASCA 187; 17 July 2002 per Murray J at par [5] - [16] and per Parker J at par [50] - par [53], with both of whom Miller J agreed.
34 For the purposes of an appeal against sentence, however, it is important, I think, to note that this Court has consistently held that it is only where the process reveals error, either in principle or simply by the miscarriage of the discretion in the sentence finally imposed, so as to result in this Court being required to quash the sentence and substitute another, that the use of the two-tiered process in explaining the sentence will have any relevance.
35 It follows from what I have already said that I consider that this is not such a case. His Honour said that in respect of the offence of possession with intent to sell or supply, "an appropriate starting point" would be 8 years imprisonment. His Honour reduced that by 15 per cent "rounded down" to achieve the sentence imposed of 6 years and 8 months. Similarly, for the offence of possession, his Honour said that "a starting
point" is 18 months. Again, his Honour reduced that period by 15 per cent "rounded down" to produce the sentence of 15 months imprisonment. It is not abundantly clear what falls within the 15 per cent, but it seems that, having regard to remarks made earlier by his Honour, this may be a general allowance for all matters of mitigation identified by the Court.
36 If that is right, the "starting point" appears in each case to be what the Judge would have thought to be an appropriate sentence had there been no relevant matters of mitigation established. If that is so, then, to my mind, the starting point is not presently material. It is not the sentence imposed and it relates to some unexpressed set of factual circumstances different from those found by his Honour in the case before him. The 15 per cent deduction is itself immaterial for present purposes. Given the starting point, the percentage deduction is only right if, at the end of the day, having regard to all matters of aggravation and mitigation, the sentence finally imposed is within the appropriate exercise of sentencing discretion. That being so, in my respectful opinion, in this case no further consideration need be given to grounds 2 and 3.
37 I would be content to make the final orders proposed by Anderson J, that leave to appeal be granted, but that the appeal against sentence in each case be dismissed.
38 ANDERSON J: On 20 February last the applicant was
presented before Groves DCJ in the District Court at Perth on a joint
indictment charging
him with one count of possessing a prohibited drug
(methylamphetamine) with intent to sell or supply, contrary to s 6(1)(a) of
the Misuse of Drugs Act 1981 and one count of simple possession of that
drug, contrary to s 6(2). Also on the indictment were two charges against
a co-offender, one Kezkiropoulos, who was charged with one count of possessing
methylamphetamine
with intent to sell or supply, and one count of selling or
supplying methylamphetamine. On arraignment, both men pleaded guilty.
Kezkiropoulos was sentenced to an aggregate term of 10 years' imprisonment
and the applicant to an aggregate of 6 years and 8 months.
This is
the applicant's application for leave to appeal against the severity of that
sentence.
39 On 11 March 2000 the Australian Federal Police received information that Kezkiropoulos, who usually resided in Victoria, had come to Perth and they placed him under surveillance. He booked into a
room at the Sheraton Hotel in Adelaide Terrace and was observed later to leave the hotel and make a telephone call from a public telephone. Shortly afterwards, the applicant arrived and the two went to Kezkiropoulos' room. When the applicant left the room about half an hour later, he was apprehended by federal agents, searched and found to be in possession of two quantities of methylamphetamine, one in a plastic bag weighing 53.9 grams of a purity of 41 per cent and the other in a paper folder made from Sheraton Hotel stationery weighing 0.1 gram of a purity of 59.3 per cent. The applicant was also found to be in possession of $687 in cash. The federal agents entered Kezkiropoulos' room, searched him and found $1230 in cash on his person. A search of the room revealed a further $39,900 in cash hidden behind a curtain and a plastic bag containing 422.5 grams of methylamphetamine of a purity of 59.3 per cent. Both men were arrested.
40 The applicant's home in Emerald Terrace, West Perth was searched and federal agents found an assault rifle and a locked briefcase, which contained a handgun, small scales and $7600 in cash. The scales tested positive to methylamphetamine traces.
The prosecution proceedings41 The applicant was initially charged with one offence of
possession of a prohibited import contrary to s 233B(1)(ca) of the
Customs Act 1901 (Cth). On 16 March 2000 he was also charged with
possession with intent to sell or supply contrary to s 6(1)(a) of the
Misuse of Drugs Act 1981 .
42 An election day was set for 20 July 2000 in the Court of Petty Sessions when the Crown indicated that it would lead no evidence in respect to the charge under the Customs Act. The applicant was discharged from that complaint. Concerning the charge of possession with intent, which at that stage was a single charge, the applicant elected to be committed directly to the District Court without a preliminary hearing. Kezkiropoulos elected for a preliminary hearing, after which he too was committed for trial in the District Court.
43 On 14 March 2001 the Director of Public Prosecutions filed the indictment in the following terms:
"Lloyd Patrick Rayney, being duly appointed to sign and present indictments, informs the court that -
(1) On 11 March 2000 at Perth Peter Kezkiropoulos had in his possession a quantity of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
(2) And further that on the same date and at the same place Peter Kezkiropoulos sold or supplied a prohibited drug, namely methylamphetamine, to another.
(3) And further that on the same date and at the same place Andrew Chicote Marker had in his possession a quantity of prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
(4) And further that on the same date and at the same place Andrew Chicote Marker had in his possession a quantity of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another."
44 The explanation for the two counts against the applicant in place of the original single charge is that the Director of Public Prosecutions decided to prefer separate charges in respect to each quantity. Count (3) related to the package of 53.9 grams and count (4) related to the paper folder of 0.1 gram.
45 On 15 June 2001, the applicant and Kezkiropoulos made an application in the District Court for severance of the joint indictment and this application was refused on 29 June 2001.
The plea negotiations46 The trial was due to commence on 18 February 2002 and to last for two weeks. On 12 February, the applicant's solicitor wrote to the Director of Public Prosecutions saying:
"I act for the accused Marker. Please advise at your earliest convenience whether or not your office will accept my client's plea of guilty to one count of possess methylamphetamine with intent to sell or supply (being the quantity located in Marker's pocket when searched at the Sheraton Hotel on 11 March 2000) and one count of possess methylamphetamine (being the 0.1 gram quantity located in fold of paper) in full satisfaction of the indictment. You will note the only difference between these pleas and the indictment is the absence of an 'intent to sell/supply' in relation to the smaller (0.1 gram) quantity."
47 The Director replied promptly, inquiring on what basis it was contended that the Crown should accept a plea of the lesser charge in respect to the 0.1 gram. That letter is dated 13 February. There was a discussion between the Crown prosecutor to whom the matter had been assigned, Mr Fiannaca, and the applicant's solicitor, Ms Amidzic, on 14 February and on 15 February, Mr Fiannaca advised Ms Amidzic that the "Crown is prepared to accept a plea of guilty to count (3) as charged and a plea of guilty to simple possession of methylamphetamine in relation to count (4) in full satisfaction of the indictment insofar as it concerns your client". On arraignment, the applicant pleaded guilty to count (3) and to the amended count (4). Kezkiropoulos, who had not taken part in the plea negotiations, also changed his plea to guilty of both of the counts against him.
48 Because the pleas were so late, the sentencing Judge did not think they were worth much by way of a sentencing discount. The discount which he allowed the applicant for all matters of mitigation, including the plea of guilty, was 15 per cent.
Appeal grounds 1(a) and 1(f) - insufficient discount49 By ground 1(a) and (f) of the applicant's grounds of appeal, there is a challenge to the inadequacy of the 15 per cent discount in two respects. In the first place, it was submitted that the applicant should have received a bigger discount than Kezkiropoulos, who also received a 15 per cent discount. Secondly, it was submitted that the sentencing Judge misunderstood the basis upon which discounts are given inasmuch as he related the discount to the timing of the plea itself, rather than to the timing of the first indication of an intention to plead guilty.
50 When he first came before the Court of Petty Sessions on 20 July 2000, the applicant, by his counsel, informed the Magistrate that he was prepared to plead guilty to "simple possession". The complaint, as it stood, encompassed both the 53.9 grams contained in the plastic bag and the 0.1 gram in the paper folder. The applicant's intimation to the Court that he was prepared to plead guilty to simple possession was not therefore an indication that the applicant was prepared to plead guilty as charged with respect to any of the drugs which had been found in his possession. It was, in effect a denial of intent to sell or supply.
51 There were some further discussions between the Director of Public Prosecutions and the applicant's solicitors on 31 January 2001, during which there was, once again, an indication that, whilst the applicant was prepared to plead guilty to simple possession, he was not prepared to plead guilty to possession with intent to sell or supply. On 12 March 2001, there was a discussion between one of the Director's officers, a Mr Carlson, and the applicant's solicitor when the applicant's solicitor again indicated that the applicant would "admit simple possession but not an intent to sell or supply".
52 The position therefore is that, although the indictment had been drawn 11 months previously, the solicitor's letter of 12 February 2002 was the first indication that the applicant would plead guilty to possession with intent.
53 When that letter was received on 12 February, it was proper for the Crown to seek to ascertain the basis upon which the Crown was being requested to reduce one of the charges and to have a little time to consider its position upon being given that information. Right up until the morning of the first day of trial, the applicant kept the Crown guessing as to the factual basis upon which the pleas were offered. On that morning, the applicant's solicitors sent a facsimile transmission to the Director in the following terms:
"Re Queen v Kezkiropoulos and Marker
District Court 19 February 2002
We refer to our previous communications the most recent of which is your fax of 15 February 2002.
It would appear from my discussions with those representing the co-accused that there may be some misunderstanding regarding my client's position on a number of factual issues. In an effort to clarify such issues, I confirm my instructions are to the effect that:
1. Marker was given 0.1 gram of methylamphetamine by Kezkiropoulos at no charge to Marker.
2. At the time of receiving the 0.1 gram Marker was a user of amphetamine but had no positive intention one way or other regarding further supply by Kezkiropoulos.
3. The 53.9 gram quantity of methylamphetamine in Marker's possession prior to his attendance at the Sheraton Hotel on 11 March 2000 was not sourced from Kezkiropoulos."
54 The negotiations necessitated the commencement of the trial being postponed by one day.
55 In his sentencing remarks, the Judge had this to say about the applicant's guilty plea:
"It is said that remorse is demonstrated by your late pleas of guilty. Again that is something which I should take into account. The pleas of guilty, of course, came very late in the day and came after the time when the trial was due to have commenced. There was plenty of opportunity for each of you to have entered pleas of guilty at a much earlier stage. Nevertheless the authorities do tell me that I must give some discount in recognition of the fact that the administration of justice has been assisted by reason that pleas of guilty have been entered.
Normally on a fast-track plea of guilty a person would receive, as I indicated from those cases, a discount in the order of 25 to 35 per cent on the sentence."
56 It was submitted on behalf of the applicant that these remarks reveal that the Judge failed to have any regard to the applicant's indications prior to the making of his plea that he was prepared to plead guilty.
57 In my opinion, there is nothing in this criticism. It is true that his Honour's remarks do seem to relate solely to the entry of the plea and it may be that he did overlook the need to focus on the first indication that a plea of guilty would be made. In my opinion, the difference in timing in this case is quite insignificant. The first indication that the applicant might plead guilty as charged to count (3) was four working days prior to the commencement of what was to be a lengthy trial. That was a very late indication; and even then it was not unqualified. The factual basis on which the applicant was prepared to make the plea of guilty had still to be straightened out. The Crown brief must have been fully prepared by that stage and all requisite resources of the prosecution and the court must have been committed to the trial. In the context of sentencing discounts, I cannot see any worthwhile difference between a case in which the accused indicates a mere four working days before a major trial that he is prepared to negotiate for pleas of guilty, the negotiations taking until the eleventh hour to complete and a case in which the accused indicates at the eleventh hour that he will make a guilty plea.
58 The other aspect of this part of the appeal relates to the giving of exactly the same overall discount (15 per cent) to both Kezkiropoulos and the applicant. On behalf of the applicant, this is said to lead to a justifiable sense of grievance on his part because:
• The applicant elected for direct committal without a preliminary
hearing, whereas Kezkiropoulos elected for a preliminary
hearing.
• Kezkiropoulos gave no indication prior to trial of any
intention to plead guilty.
59 It was submitted that, because of these two differences, the sentencing Judge should have differentiated between the two men in sentencing them. I am not able to accept this submission. The applicant's decision not to elect for a preliminary hearing was no doubt based on the strength of the Crown's case and on his own convenience, and on financial considerations. The Crown case against him was very simple and very strong. He had been caught red-handed. The two parcels of drugs were on his person. There was little to gain from a preliminary hearing. I cannot see that he was entitled to any extra discount for electing not to have a useless preliminary hearing whilst maintaining his plea of not guilty.
60 In my opinion, there was not enough difference between the extent to which the two men assisted the course of justice to warrant different discounts being given.
61 This disposes of grounds 1(a) and 1(f) of the grounds of appeal.
Grounds of appeal 1(b) and 1(e) - Is a plea of guilty an admission as to quantity?62 By grounds 1(b) and 1(e), it is pleaded that:
"The learned sentencing Judge failed to give sufficient weight to -
(b) the fact that at the relevant time the applicant was a chronic user of methylamphetamine and that any intent to sell or supply part of the drug in his possession (count (3)) was incidental to such use;
...
(e) the fact that the greater part of the methylamphetamine in the applicant's possession (count (3)) was intended for his personal use and not for sale or supply to others;
... "
63 The submissions in support of these grounds of appeal went along the following lines. In pleading guilty to count (3) on the indictment, the applicant did not admit that all of the 53.9 grams of methylamphetamine was possessed with intent to sell or supply. Groves DCJ made no finding as to what portion of the parcel of 53.9 grams was intended for sale or supply. He was required to do so before he could proceed to sentence. Failure to do so caused the sentencing discretion to miscarry.
64 A court of five Judges has been convened to hear this appeal because this submission runs counter to the judgment of this Court (Malcolm CJ, Pidgeon and Nicholson JJ) in Collins (1993) 67 A Crim R 104. In that case, the indictment alleged possession of cannabis with intent, no quantity being specified. On his arraignment, the defendant pleaded guilty. The prosecutor then placed material before the Court revealing that the quantity of cannabis in the defendant's possession was a little more than 1.2 kilograms. In the plea in mitigation, it was stated by the defendant's counsel that he was a heavy cannabis user and that the substance was essentially for his own use but that "if friends came around he may share it with them". It was stated on his behalf that this was the extent of his intention as regards sale or supply and he should be sentenced accordingly. The sentencing Judge rejected this explanation as being not credible.
65 It is, of course, always open to the sentencing Court to reject exculpatory explanations offered in mitigation if the explanations are lacking in substance and credibility in light of the known facts: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270. In the appeal, Malcolm CJ upheld the sentencing Judge's approach on a slightly different basis, laying it down that (at page 106):
" ... the explanation offered in mitigation was inconsistent with the plea of guilty. By his plea the applicant admitted that he was in possession of the 1.2 kg with intent to sell or supply it to another. By
Pidgeon J was of the same opinion. He said (pages 109 - 110):
"The relevant element of the offence is the applicant having the drug concerned with the intent to sell or supply it to another person.
Nicholson J agreed with both judgments.
66 On behalf of the applicant, it was submitted that insofar as
it was decided in Collins that a plea of guilty is an admission
that the offender had the intent to sell or supply the whole quantity of drug
found in his
possession, it was wrongly decided and should not be followed. It
was submitted that the offence which is created by s 6(1)(a) of the
Misuse of Drugs Act has three elements: (i) possession, (ii) of
a prohibited substance, (iii) with intent to sell or supply; and that the
quantity found
in the defendant's possession is not an element of the offence,
but an "incidental matter of fact" (Wendo v The Queen [1963] HCA 19; (1963)
109 CLR 559 per Dixon J at 562) and a fact "extending beyond the
elements of the offence" (R v Aloia [1983] WAR 133 per
Burt CJ at 136) and, hence, is not the subject of an admission on a plea of
guilty to that offence. It is therefore (so it was
submitted) open to a
defendant who has pleaded guilty to a charge of possession of a prohibited drug
with intent to sell or supply
to maintain, consistently with his plea, that some
of it, even most of it, was for his own use.
67 I think this submission must be accepted. Putting s 11
to one side for the moment, the rule is that a plea of guilty is an admission of
no more than the essential elements of the offence
to which the plea relates:
Maxwell v The Queen (1996) 184 CLR 501 per Dawson and
McHugh JJ at 510; R v Olbrich (supra) at 275; R
v Hill [1979] VicRp 33; [1979] VR 311 at 312. In this case, this means that the
applicant's plea of guilty to the charge under s 6(1)(a) of the Misuse
of Drugs Act 1981 was an admission of the three matters enumerated above and
of no other matter. The quantity of drug found in the offender's possession
is
relevant only to an evaluation of the gravity of the offence. Unless moda1981184 /s11.html" class="autolink_findacts">s 11
produces a different result, I think that a defendant is entitled to enter a
plea of guilty to a charge under s 6(1)(a) without surrendering his or her
right to contest the "incidental fact" of quantity. In my opinion, this
analysis is unaffected by
s 11. That section provides:
"11. Presumption of intent to sell or supply
For the purposes of -
(a)
... "
68 The section does not say and does not mean that unless the contrary is proven a defendant is deemed to intend to sell or supply the whole of the quantity found in his possession. I think the section is carefully worded so as not to have that meaning. In its terms it means no more than that if not less than the Sch V quantity of the particular drug is found in the defendant's possession, then, prima facie, the defendant has the guilty intent with respect to that drug. The section facilitates proof of guilty intent by shifting the onus of proof on that issue. It does not facilitate proof of intent with respect to any particular quantity.
Burden of proof as to quantity69 How the issue of intent with respect to quantity is to be resolved is another question. The starting-point is the natural inference that arises when a person is found in possession of a quantity of prohibited drug and it is proved or admitted that he was in possession of that drug with an intent to sell or supply it. The only reasonable inference from those bare facts (possession and intent) is that the intent extends to the quantity which is in the offender's possession. The circumstances, that is, possession of a quantity of illicit drug with an intent to sell or supply it, do not give rise to an inference that the person intended to sell only some of the drug. Therefore, if the defendant against whom guilty intent is established wishes to be sentenced on the footing that his guilty intent was with respect to some lesser portion than the quantity which was found in his possession, he must carry the burden of establishing that fact.
70 I think therefore that prima facie the gravity of the
offence under s 6(1)(a) is to be informed by the quantity of the drug in
the defendant's possession - that is, in the possession of the defendant against
whom it is established (either by recourse to s 11 or by the defendant's
own plea of guilty or by some other means) that there was an intention to sell
or supply that drug. Where
the facts are such that it is proper to make a
finding in favour of the defendant on the balance of probabilities that it truly
was
not his intention to sell or supply all of the drug, it may be appropriate
to mitigate the sentence. Otherwise, he should be sentenced
by reference to the
quantity found in his possession.
71 On the hearing of the plea before Groves DCJ, counsel for the applicant, Ms Amidzic, informed his Honour that the applicant was going through a period of heavy use of methylamphetamine at the time of the offence and some of counsel's statements tended to suggest that the parcel of 53.9 grams had been acquired by the applicant mostly for his own use. Groves DCJ invited counsel to clarify the applicant's intention in that regard, which at a later stage of proceedings she did, by making the following statement from the bar table:
"In answer to your earlier query, your Honour, I have had the opportunity of obtaining some instructions on that issue. The best estimate my client is able to give on the likely break-up of the amount that he had that's the subject of count (3) is that something in the order of up to a third would have been lost to distribution, whether by way of sale to recoup costs or simply supplying the company of those in whose company he used the substance from time to time."
I have supplied the emphasis for reasons which will be explained presently.
72 In the appeal in this Court, Mr Shirrefs submitted that this statement was "evidence" that the applicant had no intention to sell or supply the whole quantity, so that, before the applicant could be properly sentenced, it was necessary for the Judge to make a positive finding as to what portion of the 53.9 grams the applicant actually did intend to sell or supply.
73 As I understand these submissions, the complaint is not that the sentencing Judge applied Collins and therefore fell into error, nor that he misdirected himself as to how to go about making a finding as to what portion of the 53.9 grams in the applicant's possession was intended for sale. The problem, according to Mr Shirrefs, is that no finding was made at all on the question, and, hence, the sentencing discretion miscarried.
74 I would not accept that a finding must always be made, even in user dealer cases, as to how much of the prohibited drug found in the defendant's possession was intended for own use and how much was intended for sale or supply. In many cases, it would be a wholly unreal exercise because the user dealer will rarely have a firm intention beyond perhaps an intention to use some and sell some. How much to sell and how much to consume will depend on his fluctuating needs (on the one hand for money and on the other to satisfy his craving for the drug) and on the business opportunities that might arise to on-sell the drug at the right price.
75 This seems to me to be exactly the position in this case. The statement made by Ms Amidzic, especially the parts which I have emphasised, reveals that, at the time of the commission of the offence, the applicant had not made up his mind how much of the 53.9 grams he was going to use himself. This is precisely as one would expect.
76 I do not accept the submission that in this case there was "evidence" that, at the relevant time, the applicant's intention was to keep two-thirds of the drug for his own use and sell one-third. On the strength of the statement from the bar table, the inference must be that no portion of it was labelled "not for sale" in his mind.
77 Insofar as grounds of appeal 1(b) and 1(e) depend on the proposition that the sentencing Judge was legally bound to make a finding as to how much of the 53.9 grams in the applicant's possession it was his intention to sell or supply and how much it was his intention personally to consume and that his failure to do so vitiated the sentence, the grounds of appeal should fail.
78 This is not to say that the fact that it was likely that the defendant would consume some of the drugs himself was not something that needed to be considered. But it was considered. Groves DCJ said that he intended to sentence the applicant on the basis that he was a user dealer. It is implicit in the sentencing remarks that the sentence was arrived at upon an acceptance of the fact that not all of the drug would be put onto the street. That was the best that his Honour could do and involves no error.
79 There are other grounds of appeal which can be dealt with quite shortly.
Whether applicant's own addiction a mitigating factor80 It is said that not enough weight was attached to the fact that the applicant was "heavily addicted to methylamphetamine" at the material time. There may be cases in which the offender's drug dependency will decrease the emphasis that should be placed on general deterrence. I do not see this case as in that category. The applicant was in the drug trade in earnest, judging by what was found at his residence. I am not persuaded that his own heavy use of drugs lessened his culpability. The major sentencing considerations are to put a stop to the drug trade and discourage would-be offenders and protect the community from criminality driven by drug craving: R v Terizakis ( 1986) 41 SASR 252 at 256; Bellissimo (1996) 84 A Crim R 465. With those objectives in mind, I am not persuaded that there is any principle that dealers who are also drug addicts should be treated more leniently simply because they are drug addicts. As Wood CJ at CL said in Henry [1999] NSWCCA 111; (1999) 106 A Crim R 149 at 195:
"The comparison [between drug addiction and a mental disorder] is also imperfect insofar as it overlooks the original element of choice every person has, initially whether or not to experiment with drugs, and thereafter to continue with their use. Even if some persons have a genetic predisposition or vulnerability to addiction, they are not, in my view, entitled to claim any favours in that regard. The addictive quality of drugs and the potential of a slide into a degraded or criminal lifestyle are so well known as to invite a free choice. Those who choose to use drugs must, in my view, accept the consequences."
81 I do not consider that a need for money to satisfy a craving for methylamphetamine is an excuse to deal in methylamphetamine or is, of itself, a matter of mitigation.
Youth, remorse and pre-sentence rehabilitation82 It is said that not enough credit was given for young age, remorse and steps taken towards rehabilitation following arrest.
83 The applicant is a young man and it is clear that in the two years between his arrest and his sentence he had engaged in rehabilitative measures and self-improvement. It is apparent from the sentencing remarks that these matters did not weigh heavily with the learned Judge, and he gave his reasons. In my respectful opinion, they were sound reasons. In serious drug offences, personal mitigatory factors must be weighed against the imperative need to pass sentences having a deterrent effect. It is the experience of this Court that people actively involved in the drug trade are often young men and women with good antecedents, good prospects and many personal attributes. However, the undeniable fact is that they are always in it for money, as the applicant obviously was in this case, and it must always be borne in mind that dealing in amphetamines is enormously harmful and is a very serious offence, the maximum penalty for which is 25 years' imprisonment. In the six years that have passed since this Court handed down its judgment in Bellissimo (supra), I have had no reason to qualify the view which I expressed in that case at page 471:
"Amphetamine trafficking is now recognised by the court to be in the higher range of seriousness in the scale of drug trafficking offences. As a result of this, reference to earlier sentencing decisions is no longer a safe guide to the level of sentencing for current cases.
The major sentencing considerations for offences of trafficking in dangerous drugs of addiction such as amphetamines, cocaine and heroin are general and personal deterrence, the major objective being to stop people doing it. It is quite obvious to anyone concerned with criminal justice administration that trafficking in amphetamines is rife in this State and part of its tragedy is that very young people in the community are being exposed to it. This has caused widespread community concern. The sentences that have been imposed in the past do not seem to have worked as a deterrent."
84 These views have been endorsed by this Court since. See, for example, Watson v The Queen [2000] WASCA 119 per Malcolm CJ at [102].
85 In this case, I do not think the evidence of remorse was very remarkable or very convincing. It was no more than what is to be expected of a person caught for a very serious crime facing a lengthy prison term. True remorse and contrition must always count for something in sentencing, but it counts for less in offences involving serious criminality and where the emphasis is required to be on general deterrence. Moreover, I think Groves DCJ was right to conclude that, whilst the applicant was sorry for the effect that his actions and their consequences (his conviction and imprisonment) would have on his family and girlfriend, there was not much evidence of contrition for the conduct itself, even putting the best light on the pre-sentence material. It is to be remembered that the applicant resolutely maintained his plea of not guilty right up until a few days before the trial was due to commence. That reveals a state of mind inconsistent with true contrition.
Consistency in sentencing86 It was submitted that the sentence of 8 years reduced to 6 years and 8 months for mitigating factors was inconsistent with sentences imposed for similar offences and manifestly excessive. Mr Shirrefs submitted that Groves DCJ appeared to find guidance in cases which were not similar to this case and which were more serious and more in line with the gravity of the offences committed by Kezkiropoulos. I do not understand his Honour's sentencing remarks in that way. It is true that he referred to a number of cases more akin to Kezkiropoulos' level of offending, but I am not persuaded that he failed to make proper allowance for the fact that the sentences imposed in those cases were for rather more serious offending. That he made allowances for that is reflected in the fact that the sentence passed on the applicant was one-third less than the sentence passed on Kezkiropoulos.
87 Looking back over the cases involving drug offending of the same order of criminality as the applicant's offending, it is true that the sentence imposed on the applicant was on the high side, comparatively speaking. But no cases are exactly alike. This applicant was in possession of 53.9 grams of methylamphetamine of 41 per cent purity and 0.1 gram of methylamphetamine of 59.3 per cent purity. We know from case after case that street level purity is generally between 6 per cent and 8 per cent, so that this parcel of 53.9 grams of 41 per cent purity could have yielded approximately 300 grams at street level. The applicant had a handgun and an assault rifle, a set of scales, and a substantial quantity of cash secreted at his habitation. This compels the conclusion that drug dealing was a way of life for him at that time.
88 Of course, he was not to be sentenced for anything other than the two offences of which he stood convicted on his plea: R v De Simoni [1981] HCA 31; (1981) 147 CLR 383. But in deciding what punishment was appropriate and how much emphasis needed to be placed on general and personal deterrence - in deciding how to treat him - it was relevant to know who he was, broadly speaking. The evaluation of the nature of his criminality with respect to the two charges is assisted by looking at where, for example, he fitted into the drug scene in this State. The applicant was himself admittedly engaged in the distribution of this very harmful drug for personal financial gain. He was obviously involved with a drug syndicate; and closely enough involved to be trusted by that syndicate to meet with Kezkiropoulos to sample the product which Kezkiropoulos had for sale so as to enable the syndicate to decide whether to buy it and, presumably, what price to pay for it as the precursor to a very large transaction indeed, namely, the illicit distribution of whatever quantity of marketable methylamphetamine could be made from 422.5 grams of 59.3 per cent purity. It is possible to do a rough calculation. Taking the average street purity as 7 per cent, the 422.5 grams brought to Perth by Kezkiropoulos had the potential to yield nearly 3.6 kilograms for street distribution. As a user, the applicant must have known how addictive and harmful this drug is.
89 The sentence passed on the applicant is not without precedent. For example, in Bellissimo, the sentence was 6 years for possession with intent to sell or supply a quantity of 20.8 grams of 6 per cent pure. The quantity possessed by the applicant in this case was the equivalent of 368 grams of a purity of 6 per cent - 17 times the quantity in Bellissimo's possession. More recently, in the case of Sikaloski [2000] WASCA 63, there was a sentence of 6 years for possession with intent to sell or supply 54.9 grams of 7 to 9 per cent pure. The 53.9 grams in the possession of the applicant is the equivalent of 276 grams of 7 to 9 per cent (say, 8 per cent) pure - five times the quantity in Sikaloski's possession.
Delay between arrest and sentence90 Mr Shirrefs submitted that some degree of mercy should be extended to the applicant because a period of two years elapsed
between the charge being laid and the passing of sentence. This submission to some extent overlapped the submission made with respect to pre-sentence rehabilitation and good conduct. In my opinion, the answer to it is that throughout the period of two years the applicant maintained a denial of the intention to sell or supply. It was open to him at any time to offer a plea of guilty as charged with respect to 53.9 grams. Whilst he is not to be punished for not doing so, I do not see why any extra leniency should be extended to him on this account.
Rehabilitation since sentence was passed91 There is evidence that the applicant's rehabilitation is progressing very well in prison. This is no reason to now shorten his sentence. What it means is that he will probably (if all goes well) earn release in the minimum time.
92 I would grant leave to appeal but dismiss the appeal.
93 STEYTLER J: I have had the advantage of readings the reasons for decision to be delivered by Anderson J. I agree with the conclusion at which his Honour has arrived, but wish to express my own reasons in respect of grounds 1(b) and (e) of the grounds of appeal and also on the issue of consistency in sentencing.
94 The applicant pleaded guilty to two charges. The first was
one of possession of a prohibited drug, methylamphetamine, with
intent to sell
or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act
1981 . The second was one of possession of a prohibited drug, also
methylamphetamine, contrary to s 6(2) of the Act.
95 Various facts were placed by the prosecution before the sentencing Judge, in the form of a statement of facts. The majority of these were either agreed to by the applicant or, at the least, not disputed by him.
96 On Saturday, 11 March 2000, the applicant's co-accused, one Kezkiropoulos, booked into the Sheraton Hotel in Perth. Around 6 pm he left the hotel to make a telephone call from a nearby public telephone. About an hour later he met with the applicant outside the hotel. The two of them went to Kezkiropoulos' hotel room. There, Kezkiropoulos supplied the applicant with a small sample of methylamphetamine powder which came from a larger quantity in the possession of Kezkiropoulos. The sample was placed in a paper fold and the applicant intended to use it
himself, with a view to a decision being made whether more would be purchased from Kezkiropoulos.
97 The applicant left the hotel room at about 7.30 pm and was apprehended by federal agents. He was searched and found to be in possession of two quantities of methylamphetamine. The first quantity of methylamphetamine was in the form of an off-white powder contained in a plastic bag which he was carrying in a trouser pocket. The powder was later found to weigh 53.9 grams and to have a purity of 41 per cent. The second quantity of methylamphetamine was the sample in the paper fold, which the applicant had also put in his pocket. This weighed 0.1 of a gram and contained methylamphetamine with a purity of 59.3 per cent. The charge of simple possession related to the smaller quantity and that of possession with intent to sell or supply related to the larger quantity.
98 The police searched Kezkiropoulos' hotel room. They found $1230 on his person and also a plastic bag containing a white powder alongside a further amount of $39,950 in cash. The powder was later found to contain methylamphetamine with a purity of 59.3 per cent. It weighed 422.5 grams and was the same as the sample found in the applicant's possession.
99 The applicant's home was later searched. The police found an assault rifle under his bed and a locked briefcase in his wardrobe. The briefcase contained his passport, personal papers, a handgun, small scales and $7600 in cash. The scales were later found to have traces of methylamphetamine on them.
100 The applicant's counsel told the Court that the applicant had, on 11 March 2000, been "tasked" to attend at the Sheraton Hotel to collect the sample of amphetamine which was later found in the paper fold. She said that, "for his trouble", he received the 53.9 grams of methylamphetamine found in his pocket for the sum of $2500, notwithstanding that it was worth in the vicinity of $6000 to $7000. She said that the applicant, who was then 21 years old, was then using amphetamine on a daily basis. She said that his favoured method of use was smoking the amphetamine and that, using it in that way, the quantity found in his pocket would have lasted him no more than a month. However, she said, consistently with the applicant's plea, he conceded "that not the whole of that amount would have been personally used, that some of it would have been distributed".
101 When asked by the sentencing Judge (Groves DCJ) whether it was relevant for him to know how much of the drug was to be used by the applicant himself and how much was to be distributed by him, the applicant's counsel said that it was difficult to make that estimate because "the exercise ... could be described as sporadic, ad hoc, as opportunity might arise". Somewhat later in the proceedings, the applicant's counsel told the sentencing Judge that she had sought and obtained further instructions on that issue and that the "best estimate" the applicant could give her was that "something in the order of up to a third would have been lost to distribution, whether by way of sale to recoup costs or simply supplying the company of those in whose company ... [the applicant] used the substance from time to time".
102 So far as the applicant's acquisition of the sample was concerned, his counsel told the sentencing Judge that "any decision" to buy a further quantity of the drug if the sample was of the required standard "was not ... [the applicant's] to make", as a transaction had already been pre-arranged subject to confirmation of the quality of the drug being ascertained by means of the sample.
103 The Crown prosecutor took issue with some of what had been said on the applicant's behalf. He said that the obvious inference from the admitted facts was that the applicant had been involved in drug dealing and had stood to make a substantial profit. He submitted that the applicant had been in possession of the large amount of drugs found on him so that he could sell "at least ... a substantial portion" thereof. He said that any contrary scenario should be proved by the applicant by way of oral evidence.
104 Notwithstanding the prosecutor's invitation, the applicant's counsel declined to lead evidence of the matters which had been referred to by her, contending that she was not obliged to do so.
105 Groves DCJ, when he came to consider this issue, said that it was "in the end result really only relevant to the status which should be attached to ... [the applicant] so far as ... [his] role in the dealing with these drugs is concerned". He went on to say:
"As to ... [the applicant] all the indications are that he was a heavy methylamphetamine user for at least 12 months prior to his arrest on these charges. He had previously been involved in drugs but had not used for some time, but at least for 12 months prior to this incident had been a user. That was so by his own admission and it was by his own admission through counsel that he was not just a user, but also that he was dealing in such drugs.
That he was a dealer is supported by the finding of scales, a large sum of money, a pistol, his passport and other personal papers in his locked briefcase at his place of residence. These are all indicia of a person who is involved in dealing, that is, selling or supplying prohibited drugs to others. Accordingly I propose to deal with ... [the applicant] on that basis, that is, that he is a user dealer."
106 After considering various other matters, including the applicant's plea of guilty, the sentencing Judge sentenced the applicant to a period of 6 years and 8 months' imprisonment on the charge of possession with intent to sell or supply and to a period of 15 months' imprisonment on the charge of simple possession, to be served concurrently with the sentence imposed on the other charge. He was declared to be eligible for parole.
107 By grounds 1(b) and (e) of the grounds of appeal (which are set out in the judgment of Anderson J), the applicant contends that the sentencing Judge failed to give sufficient weight to the fact that he was, at the relevant time, a chronic user of methylamphetamine and to the fact that the greater part of the drug in his possession was intended for his own use and not for sale or supply to others, his intent to sell or supply a part of the drug in his possession being "incidental" to such use.
108 The Crown sought to meet this contention by reliance upon the
case of Collins (1993) 67 A Crim R 104. There, the applicant had
pleaded guilty to a charge of possession of cannabis with intent to sell or
supply it to another. He had
been found in possession of 1.2 kilograms of
cannabis. However, he said that only a minor portion of that quantity was
intended
to be supplied to friends and that the rest of it had been for his own
use. He said that it would have lasted him for about a year.
The sentencing
Judge rejected that explanation and the applicant appealed. He contended that
the sentencing Judge had erred in
sentencing him on disputed facts without any
further evidence having been adduced. Malcolm CJ expressed the opinion (at
106) that
the explanation offered in mitigation was inconsistent with a plea of
guilty. He said that, by his plea, the applicant had admitted
that he was in
possession of the 1.2 kilograms with intent to sell or supply it to
another. He also said that, by s 11 of the Misuse of Drugs Act ,
when read with Sch V thereof, possession of 100 grams or more of
cannabis was presumed to be possession with intent to sell or supply
it to
another, in the absence of proof to the contrary. He said that both the
admission by the plea and the presumption applied
to the whole of the
1.2 kilograms. Pidgeon J also considered (at 109) that the
applicant's explanation had been inconsistent with
his plea. He said that it
should have been rejected on that account alone and that a plea of guilty was an
admission of all of the
elements of the offence. He, too, referred to s 11
of the Act and said (pages 109 - 110) that the presumption
applied to the whole of the drug in that applicant's possession. He went
on to
say (page 110) that a plea of guilty is an unqualified plea to the elements
of the offence and that it is not open, in mitigation,
to seek to negate it or
qualify it or to raise, as a disputed fact, something that is admitted by the
plea. Nicholson J agreed with
the other two Judges.
109 In my respectful opinion, Collins was wrongly decided in this respect.
110 It is true that, by a plea of guilty, all elements of the
offence charged are admitted. However, in the case of an offence
under
s 6(1)(a) of the Misuse of Drugs Act , the elements of the offence
are only those of possession of a prohibited drug with intent to sell or supply
it to another. The
amount of the drug possessed by the offender is not an
element of the offence charged. In accordance with its usual practice, the
Crown chose, in this case (and in Collins), not to specify any
quantity in the indictment, there having been no need for it to do so.
Consequently, in pleading guilty to
the charge, the applicant made no admission
as to the quantity of the drug that he intended to sell or supply to another.
He admitted
only that he intended to sell or supply to another a prohibited
drug, methylamphetamine, which he had in his possession. While he
did admit,
for sentencing purposes, that he had 53.9 grams of the drug in his
possession, he did not admit that he intended to sell
or supply all of it to
others.
111 It also seems to me that the applicant was not deemed by
s 11(a) of the Misuse of Drugs Act to have intended to sell or
supply the whole of the quantity found in his possession to another. That
section provides no more than
that, for the purposes of s 6(1)(a) , a person
shall, unless the contrary is proved, "be deemed to have in his possession a
prohibited drug with intent to sell or supply
it to another if he has in his
possession a quantity of the prohibited drug which is not less than the quantity
specified in Schedule
V" in relation to that drug. That schedule
specifies, in the case of methylamphetamine, a quantity of two grams. The
section, which,
as I have said, is expressed to operate for the purposes of
s 6(1)(a) , does not have the effect that, merely because a person is found
in possession of more than two grams of methylamphetamine, that
person
should be taken to have intended to sell or supply all that he or she had to
another. Its effect, in such a case, is no more
than that of requiring that
person to prove that he or she did not have the intention which forms an element
of the offence under
s 6(1)(a) , namely one to sell or supply a
prohibited drug to another, if that person does not admit to having that
intention. If more than that had been intended by the legislature,
it would
presumably have said so.
112 Evidence was led from a senior Community Corrections Officer, Mr Lawrence Webber, without objection from the Crown, to the effect that the applicant had, by the time of the commission of these offences, been regularly using amphetamines for a period of approximately 18 months. The Crown did not dispute that the applicant was a methylamphetamine user. Its contention, as I have earlier said, was that an inference should be drawn that the applicant had intended to sell at least "a substantial portion" of the drug found in his possession.
113 The sentencing Judge was consequently left in the situation in which it had been accepted by both parties that the applicant was an amphetamine user and that he had intended to use some, and sell or supply some, of the drug found in his possession. As I have mentioned, the sentencing Judge had also been told by the applicant's counsel that it was difficult to know how much of the drug would have been sold, but that the applicant's "best estimate" was that up to a third would have been "lost to distribution". No evidence to that effect was led from the applicant and nor did the Crown lead any evidence, other than by way of the admitted facts to which I have referred, in support of its contention that more than that quantity would have been sold.
114 In those circumstances it was, in my respectful opinion, open to the sentencing Judge to sentence the applicant upon the basis that he was "a user dealer", without making any specific finding as regards the quantity which would have been sold or supplied by the applicant. Groves DCJ was not required to accept the applicant's "best estimate" as expressed by his counsel (as to which, see R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, at 280, and cf R v Palmer (1994) 15 Cr App R (S) 123; R v Broderick (1994) 15 Cr App R (S) 476; and R v Tolera [2009] EWCA Crim 841; (1999) 1 Cr App R (S) 25, least of all in circumstances in which it had been acknowledged, as might have been expected, that the applicant could not himself say, with any confidence, how much he might have used and how much he might have sold. As his counsel said, this was "very much an ad hoc process".
115 In any event, this issue did not, in my opinion, have to be precisely determined as an essential aspect of the sentencing process, any more, for example, than it is necessary to determine the precise nature of an accused's involvement in an active importation of a prohibited drug (as to which see R v Olbrich, above, at 277). The sentencing Judge had before him only limited and imperfect information in this respect and no conclusion could have been reached by him with any confidence.
116 In those circumstances, it seems to me to have been open to the sentencing Judge to conclude no more than he did, namely, that the applicant was a user and a dealer as opposed, for example, to someone who was exclusively a dealer, and to sentence him upon that basis. I am not persuaded that he made any mistake in that respect or that the sentences imposed by him reflected any failure to give that consideration due weight. It follows, in my opinion, that grounds 1(b) and (e) have not been made out.
117 As to the issue of consistency in sentencing, I agree with Anderson J that the sentencing Judge referred to a number of cases which were more akin to Kezkiropoulos' level of offending than to that of the applicant, but that his Honour appears to have been conscious of this (the cases having been referred to in a context in which both offenders were being sentenced by him) and to have allowed for it in imposing a sentence on the applicant which was one-third less than that passed on Kezkiropoulos.
118 It also seems to me that, while the sentence imposed on the applicant in respect of the more serious of the two offences of which he was convicted was on the high side, it was not so high as to reveal any error in the sentencing Judge's exercise of discretion. As has been said by Anderson J in Bellissimo (1996) 84 A Crim R 465, at 471, amphetamine trafficking is recognised by the Court to be in the higher range of seriousness in the scale of drug trafficking offences. The damage to the community caused by amphetamine abuse is well known and the need for general and personal deterrence must consequently be given full weight.
119 As to the balance of the grounds of appeal, I am content to rely upon what has been said by Anderson J.
120 I would consequently grant leave to appeal but dismiss the appeal.
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