Court of Appeal (WA)|2009-06-25|Before: Wheeler JA

HOBBY -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 108 (25 June 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : HOBBY -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 108

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal - Sentence - Drug offences - Total of 20 counts - Aggregate sentence of 7 years - Whether infringed totality principle

Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186

Bellissimo v The Queen (1996) 84 A Crim R 465

Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49

Fazari v The Queen (Unreported, WASCA, Library No 960651, 10 September 1996)

Jarvis v The Queen (1993) 20 WAR 201

Nguyen v The State of Western Australia [2009] WASCA 8

Roffey v The State of Western Australia [2007] WASCA 246

Schriever v The State of Western Australia [2008] WASCA 133

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

The State of Western Australia v Higgins [2008] WASCA 157

3 MILLER JA: The appellant was convicted on his plea of guilty on an indictment containing 20 counts relating to drug dealing. Counts 1 - 19 were counts of offering to sell or supply a prohibited drug, and count 20 was a count of possession with intent to sell or supply of a prohibited drug. Counts 1 - 19 were offences against s 6(1)(c) of the Misuse of Drugs Act 1981 (WA), and count 20 was an offence against s 6(1)(a) of that Act. Counts 1 - 19 involved offering to sell or supply drugs which included methylamphetamine, MDMA and cannabis. Count 20 involved the possession with intent to sell or supply of a quantity of methylamphetamine.

4 The appellant was sentenced on 10 October 2008 to an aggregate term of imprisonment of 7 years. That term was backdated to commence on 28 September 2008. The appellant was made eligible for parole.

5 The sentences which aggregated the 7 years were the sentences of 3 years' imprisonment on count 9 on the indictment, and 4 years' imprisonment on count 20 on the indictment. They were ordered to be served cumulatively. All other sentences on counts 1 - 8 and counts 10 - 19 were ordered to be served concurrently with the sentence imposed on count 9.

6 The appellant seeks leave to appeal against the aggregate sentence imposed. The application for leave to appeal was referred for hearing at the time of the appeal. The single ground of appeal is one which relates to totality. It is in the following terms:

It is submitted on behalf of the Appellant that the learned sentencing Judge erred in the exercise of his sentencing discretion by failing to apply, or alternatively failing to properly apply, the totality principle by imposing the term of 3 years' imprisonment imposed on Count 9 cumulative upon the term of 4 years' imprisonment imposed on Count 20. This resulted in an aggregate sentence that was overly crushing on the Appellant and excessive in regards to the offending conduct viewed as a whole, having regard to both the circumstances of the case and those referable to the Appellant personally.

7 The facts which were put before the sentencing judge on 10 October 2008 revealed, in relation to counts 1 - 19 on the indictment, that

authorities became aware of the appellant's drug dealing. By telephone intercepts, police investigators ascertained that the appellant was offering to sell trafficable quantities of prohibited drugs.

8 The offences which constituted counts 1 - 19 on the indictment occurred between 30 November 2007 and 22 December 2007. This was a period of 23 days and involved offers on the part of the appellant to sell more than 140 g of cannabis, more than 552 MDMA (ecstasy) tablets and more than 173.75 g of methylamphetamine. There were six counts involving offers to sell methylamphetamine, five counts of offering to sell MDMA and eight counts involving offers to sell cannabis. The offences of offering to sell methylamphetamine and MDMA were offences which carried a maximum penalty of 25 years' imprisonment or a fine of $100,000 or both (s 34(1)(a) Misuse of Drugs Act), and the offences of offering to sell cannabis were offences which carried a maximum penalty of 10 years' imprisonment or a fine of $20,000 or both (s 34(2)(a) Misuse of Drugs Act).

9 Of the counts of offering to sell the various drugs, count 9 was one of the most serious. It related to an offer to sell 470 MDMA tablets. The facts were that at about 3.19 pm on 21 December 2007, the appellant received a telephone call from a male associate who identified himself as Josh. During the conversation, the appellant said that he was in possession of 500 MDMA tablets. Josh asked if he could have those, and the appellant said that he could give him 470 of the tablets as he had already undertaken to supply 30 to somebody else. The appellant made arrangements to meet Josh later and, at about 8.29 pm on 21 December, the appellant telephoned Josh to arrange a meeting spot where the drugs could be exchanged.

10 The offence the subject of count 20 on the indictment occurred at about 12.20 pm on 24 December 2007. The appellant was a front seat passenger in a taxi which was travelling south on Mandurah Road, Golden Bay. Police stopped the vehicle and approached the appellant, but he left the vehicle and attempted to run from the location. He was apprehended by police and conveyed to the office of the detectives, where he was searched. Concealed in his underwear was a clipseal bag which contained two portions of methylamphetamine. One portion was 31.7 g with a purity of 21%. The other was 21.8 g with a purity of 19%. The total weight was 53.5 g. In the appellant's backpack there was a quantity of more than $14,000 in cash.

11 During the course of the sentencing proceedings, there was a trial of an issue in relation to count 13 on the indictment. That count alleged an offer to supply methylamphetamine. The prosecution contended that the offer related to 4 ounces, while the appellant contended that it related only to 3 ounces. The sentencing judge determined that he was not satisfied beyond reasonable doubt that the offer related to 4 ounces as opposed to 3 ounces, and the matter proceeded on the basis that it was a quantity of 3 ounces which was involved.

12 The sentencing judge recounted the facts of the case and then turned to the appellant's personal circumstances. He observed that the appellant was 24 years of age and had experienced a relatively happy upbringing. There had been some difficulties in the appellant's family when he was aged 17 years which led to problems associated with his mother, who died prematurely.

13 The sentencing judge had before him a pre-sentence report which set out in considerable detail the circumstances of the appellant. The author of the pre-sentence report found that the appellant had little awareness of the consequences of drug dependency and addiction, and the often related criminal activity associated with illicit drug use. The conclusion in the pre-sentence report included the observation that, at the time of his offending, the appellant appeared to have little insight into the effect of his offending on individuals, or on society as a whole, 'either not wanting to acknowledge this to himself or solely due to ignorance'. The conclusion did, however, incorporate a statement that, in hindsight, the appellant regretted his actions and expressed remorse for the shame he had brought upon his father and siblings. The writer then added the following passage:

The writer however doubts that he has the insight to comprehend the number of lives his offending has affected, either by addiction or by those persons being victim of crime in order to sustain an addiction.

14 At the sentencing hearing, counsel for the appellant submitted to the sentencing judge that, since his remand in custody, the appellant had become aware of the devastating effects of drug addiction and the personal consequences to people who involve themselves in such addiction. The sentencing judge noted this submission, but also referred to what the author of the pre-sentence report said about the appellant's limited insight into the number of lives that his offending had affected.

15 The sentencing judge made reference to the fact that the appellant had only a very minor criminal record. His Honour said that 'for all intents and purposes [it] is ignored by me'. The record contained a number of traffic offences and offences of possession of unlicensed firearms or ammunition.

16 The sentencing judge took account of the appellant's pleas of guilty. His Honour regarded them as evidence of remorse and of an acceptance of responsibility, and a facilitation of the administration of justice.

17 The appellant's personal circumstances were taken into account, but the sentencing judge made the observation that those circumstances were not the only thing that he had to consider. He said:

I do have to protect the public from this sort of drug trafficking and I have to punish you for what took place. I have to deter you from such activities, I have to deter other persons and I also have to aid, where possible, in your rehabilitation.

18 The sentencing judge concluded that the appellant was a mid-range distributor. His offending was repeated, persistent and prolific, and the quantities which he offered to sell were not always small. The sentences which were imposed and which led to the aggregate sentence of 7 years are set out in the appellant's written submissions in a convenient table to the following effect:

Offer to Sell or Supply a Prohibited Drug namely Amphetamine (quantity unknown)

Offer to Sell or Supply a Prohibited Drug namely MDMA (quantity unknown)

Offer to Sell or Supply a Prohibited Drug namely MDMA (50 tablets)

Offer to Sell or Supply a Prohibited Drug namely Cannabis (quantity unknown)

Offer to Sell or Supply a Prohibited Drug namely MDMA (12 tablets)

Offer to Sell or Supply a Prohibited Drug namely Cannabis (14 grams)

Offer to Sell or Supply a Prohibited Drug namely MDMA (470 tablets)

Offer to Sell or Supply a Prohibited Drug namely MDMA (20 tablets)

Offer to Sell or Supply a Prohibited Drug namely Cannabis (14 grams)

Offer to Sell or Supply a Prohibited Drug namely Cannabis (56 grams)

Offer to Sell or Supply a Prohibited Drug namely Methylamphetamine (84 grams)

Offer to Sell or Supply a Prohibited Drug namely Methylamphetamine (28 grams)

Offer to Sell or Supply a Prohibited Drug namely Methylamphetamine (2.25 grams)

Offer to Sell or Supply a Prohibited Drug namely Methylamphetamine (28 grams)

Offer to Sell or Supply a Prohibited Drug namely Cannabis (28 grams)

Offer to Sell or Supply a Prohibited Drug namely Methylamphetamine (3.5 grams)

Offer to Sell or Supply a Prohibited Drug namely Methylamphetamine (53.5 grams)

As I have already indicated, the sentence imposed on count 20 was ordered to be served cumulatively with that imposed upon count 9. All other sentences were ordered to be served concurrently with the sentence imposed on count 9.

19 The thrust of the appellant's appeal was that the aggregate sentence of 7 years offended the totality principle because it was crushing in effect.

20 There was no challenge made to any of the individual sentences imposed, and it was conceded that no fault could be found with the length of any individual term. This concession was correct, because each of the sentences fell within the range of sentences that could be expected in the circumstances of the case: see particularly Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 [41], where cases involving smaller quantities of methylamphetamine (between 3 g and 65 g) are reviewed and where the conclusion is reached, at [42], that sentences under the post-transitional regime are often between 2 and 4 years' imprisonment, but sometimes more, for such quantities of methylamphetamine. MDMA is to be treated as seriously, for the purposes of sentencing, as methylamphetamine, heroin and cocaine: The State of Western Australia v Higgins [2008] WASCA 157 [111] (Steytler P). Therefore, similar sentences as those imposed in relation to methylamphetamine were appropriate in relation to the various counts which involved MDMA.

21 There has been no challenge made in relation to any of the sentences imposed for the offences relating to offers to sell cannabis. This is not surprising, because the sentences imposed in relation to those offences ranged from only 4 months to 12 months, depending upon the quantity involved. These sentences were well within range: Fazari v The Queen (Unreported, WASCA, Library No 960651, 10 September 1996) (2 years 4 months (post transitional); 13 kg of cannabis); R v Lyon [2001] WASCA 120; (2001) 121 A Crim R 440 (1 year 8 months (post transitional); 8 kg of cannabis); Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186 (2 years 8 months (post transitional); 2 kg of cannabis); Nguyen v The State of Western Australia [2009] WASCA 8 (2 years concurrent for each of two counts (post transitional); 2.38 kg and 7.8 kg of cannabis respectively).

22 The sentence imposed on count 20 (4 years' imprisonment) was clearly appropriate, having regard to the quantity of methylamphetamine involved (53.5 g). It was a sentence that fell within the range identified in Bosworth at [41] - [42]. Although the sentence was at the higher end of the range, the quantity of methylamphetamine involved was at the higher end of the scale of drugs there considered (between 3 g and 65 g). In any event, no issue was taken with the sentence imposed.

23 The challenge to the aggregate sentence imposed in this case rests upon what has been described as the 'second limb' of the totality principle. In Schriever v The State of Western Australia [2008] WASCA 133 [26], I made reference to the acceptance within this jurisdiction of the totality principle comprising two limbs. The classic statement in that respect is that of McLure JA in Roffey v The State of Western Australia [2007] WASCA 246, to the following effect:

The totality principle ... comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.

The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).

The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260). [24] - [26]

24 The question therefore is whether, in the circumstances of the present case, it can be said that the sentence imposed upon the appellant was a crushing one. In determining this question, it must be appreciated that the 'crushing effect' of a term of imprisonment is merely one of the mitigating factors that are to be taken into account when determining whether a particular term of imprisonment is proportionate to the criminality evinced: Jarvis v The Queen (1993) 20 WAR 201, 206 - 207 (Ipp J).

25 In the present case, counsel for the appellant sought to contend that the sentencing judge had paid insufficient regard to the personal circumstances of the appellant. It is contended that the aggregate sentence of 7 years' imprisonment was crushing because the appellant was of young age and had foreseeable prospects within the community. He had just turned 24 years of age at the time of sentencing, had his own plastering business at one point in time and had initially engaged in drug dealing 'as a favour' on a non-profit basis, allowing only temptation to induce him to sell drugs for financial gain. Emphasis was also placed upon the relatively clean record of the appellant and to a degree of immaturity which was said to have significantly contributed to his offending, but which had since changed to an acute awareness of the evils of drug dealing.

26 However, this submission misses the point that, in drug cases, the personal antecedents of the offender will often play a secondary role in the sentencing process. Questions of general deterrence play a greater role. This was made clear by Anderson J in Bellissimo v The Queen (1996) 84 A Crim R 465, 469:

[T]hose mature adults involved in the supply cannot be unaware of the effects that this drug has, and all, and especially those who are involved solely for the money, must be aware of the public concern that this type of activity continues. The courts must give effect to a genuine public concern. Matters personal to an offender will often, in these cases, play a secondary role in the sentencing process. Questions of general deterrence will play a greater role: see Vodanovic (p 7) and Doyle (at 363).

27 It was also echoed by McLure JA in The State of Western Australia v Andela [2006] WASCA 77 [17]:

[A]s a consequence of the significant weight given to deterrence, mitigating circumstances that are personal to the offender, such as age and good character, have correspondingly less weight than they might have in other cases: R v Marchesano [2000] WASCA 225; (2000) 116 A Crim R 237 at 243; R v Kezkiropoulos [2002] WASCA 352; (2002) 136 A Crim R 522 at [15] per Steytler J. The application of these two principles has the factual consequence that, save in exceptional cases, courts impose terms of immediate imprisonment for drug trafficking: see, for example, R v Lyon and Smith [2001] WASCA 120; (2001) 121 A Crim R 440; R v Brittain [2001] WASCA 117; (2001) 121 A Crim R 525; R v Darwell (1997) 94 A Crim R 35; Mishal v The Queen [2001] WASCA 328; Bellissimo (supra).

28 It seems to me that, in all the circumstances of the case, an aggregate sentence of 7 years' imprisonment cannot be described as a crushing sentence for the appellant. The degree of criminality involved in the case was high. The appellant chose to engage himself in drug dealing and offered to sell substantial quantities of methylamphetamine, MDMA and cannabis. In addition, he was found in possession on 24 December 2007 of 53.5 g of methylamphetamine.

29 In the circumstances of the case, the major sentencing considerations were general and personal deterrence, the major objective being to stop people trafficking in drugs as the appellant was: Bellissimo (471) (Anderson J); Andela [16] (McLure JA).

30 I am unable to accept that the sentence imposed upon the appellant in this case could be said to have been either manifestly excessive or crushing in its effect. I would grant leave to appeal, but dismiss the appeal.

Abbott v The State of Western Australia

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Judgment (73 paragraphs)

HOBBY -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 108 (25 June 2009)

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