Criminal law - Appeal against sentence - Supply of prohibited drug - Possession of an unlicensed firearm - Possession of a prohibited drug with intent to sell or supply - Discount for guilty plea - Totality

Misuse of Drugs Act 1981 (WA)

Application for leave to appeal on ground 3 granted

Application for leave to appeal on ground 2 refused

Abraham v The State of Western Australia [2014] WASCA 151

Beins v The State of Western Australia [No 2] [2014] WASCA 54

Le v The State of Western Australia [2015] WASCA 73

Ly v The State of Western Australia [2015] WASCA 18

McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121

Phan v The State of Western Australia [2014] WASCA 144

Seeto v The State of Western Australia [2014] WASCA 221

The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119

The State of Western Australia v Cairns [2006] WASCA 178

4 On 29 August 2014 the appellant was sentenced to a total effective sentence of 11 years' imprisonment for one offence of supplying a prohibited drug, namely methylamphetamine, to another contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA), one offence of possessing a firearm, namely a handgun, whilst not being the holder of a licence or permit contrary to s 19(1)(ac) of the Firearms Act 1973 (WA) and two offences of possessing a prohibited drug, one relating to methylamphetamine and the other MDMA, with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act.

5 The appellant seeks to appeal his sentence on the basis that the total effective sentence breached the first limb of the totality principle and that he was not afforded appropriate discounts for his pleas of guilty.

6 The facts were not disputed. In the early hours of the morning of 15 March 2013 the appellant met with an associate, Blake Evans, for the purpose of supplying Evans with drugs. The appellant supplied Evans with approximately 27.8 grams of methylamphetamine. Later that day Evans arranged for the drugs to be on sold to a man who, unknown to him, was an undercover police operative. The undercover operative paid $12,500 for the drugs. A part of the cash paid for the drugs was later located at a property owned by the appellant's parents. This money formed part of approximately $600,000 in cash located by the police during a search of the property. This conduct relates to count 1 of the indictment.

7 On 3 April 2013 police executed a Misuse of Drugs Act search warrant at the appellant's home in Applecross. He was located in a living area and was the only occupant of the premises at the time. A loaded .32 calibre Beretta handgun was located in a desk in the upstairs study. The appellant made some admissions in regards to possession and ownership of the gun. He was not at the time the holder of any licence or permit for this firearm. This conduct relates to count 2 of the indictment.

8 During the same search, and also in the upstairs study, police located approximately 358 grams of methylamphetamine. The drugs comprised 245 grams in a glass Pyrex tray and 113 grams in a large clip seal bag. A quantity of 71.6 grams of MDMA was also found. The MDMA was located inside a package rolled up inside a newspaper in the same room. The appellant declined to make any comment in relation to the drugs. This conduct relates to counts 3 and 4 of the indictment.

9 The appellant was arrested and charged with the offences that became counts 2 and 3 on 4 April 2013. He was charged with the offence that became count 1 on 2 July 2013. The charge that became count 4 was not preferred until 4 May 2014. The first three charges were the subject of a number of mentions in the Magistrates Court before the appellant entered pleas of guilty on 29 May 2014. Those charges were then adjourned to the first mention date of the fourth charge on 5 June 2014. On that date the appellant entered a plea of guilty to the fourth charge and was committed for sentence on all charges to the District Court.

10 It is not clear why there was a delay in preferring the fourth charge. In sentencing submissions in the District Court counsel for the appellant said that there had been a number of other charges and that after negotiations with the State those other charges were discontinued. However, there is nothing to indicate that the fourth charge was a substitute for any of the discontinued charges (none of which related to MDMA). In these circumstances, there is no reason to characterise the plea to the fourth charge as anything other than a fast track plea.

11 The appellant was 34 at the time he came to be sentenced. He was born in Thailand and is the only child of his parents' union. His parents separated when he was approximately 3 years of age and his mother travelled to Australia to make a new life. His father remained in Thailand and formed a new relationship. The appellant was raised by his paternal grandmother until the age of 11 when he travelled to Australia to join his mother. His mother remarried in Australia and the appellant has a positive relationship with his step-father.

12 The appellant attended high school in Australia until part way through Year 11. He then completed a three year course in civil engineering at TAFE followed by a further two years of computer engineering. He has then worked in the mineral processing industry, hospitality, as a courier driver and as a powder coater.

13 The appellant had a history of prior offending commencing in 2003 when he was aged 24 years old. His record includes offences involving the possession of prohibited weapons, drugs, explosives and driving offences.

14 The appellant reported commencing use of cannabis at the age of 17 but did not commence using alcohol until he was 25 years old. At the age of 27 he was introduced to methylamphetamine and thereafter used that drug on an occasional basis. He also used MDMA. However, in 2012 his best friend died in a car accident and his drug use spiralled out of control. Ultimately he was smoking a gram of methylamphetamine per day. It was admitted on his behalf that from this point he began to deal commercially in drugs. It was accepted that the drugs found on 3 April 2013 were intended for sale by the appellant. He did not maintain a claim in the pre-sentence report that he was merely holding the drugs for someone else. He did however claim that the drugs found in the glass Pyrex dish were of poorer quality, though it was not disputed that the purity of the drugs was more than 50%.

15 In regard to the firearm it was submitted that the appellant had this because he was living in fear because he was running a commercial operation. It was accepted that this was an aggravating factor. It was also accepted that knuckledusters, a Taser and a bulletproof vest were also found on the premises during the police search.

16 The appellant had completed some courses whilst on remand. A reference from his former employer and a character reference from his mother were also tendered.

17 In regard to the pleas of guilty it was submitted that they were deserving of a discount but it was accepted that the pleas were not entered at the earliest opportunity. No distinction was made for count 4. Reference was made to the negotiations but counsel for the appellant accepted that it had always been open to the appellant to plead to the charges regardless of whether other charges were discontinued. It was also accepted that the appellant had been caught 'red-handed' and that this was a relevant factor to take into account in assessing the value of his pleas of guilty.

18 The sentencing judge commenced his remarks by noting that the appellant had pleaded guilty. He then said 'And the pleas are not fast tracked pleas. They come at the committal stage after some six appearances, apparently' (ts 19).

19 After noting the facts his Honour said that he was satisfied that the appellant was involved in commercial drug dealing and 'indeed in the upper half of the pyramid of drug trafficking criminality. Within this State you are at quite a high level' (ts 19).

20 His Honour referred to the appellant's personal circumstances and then returned to the question of a discount for the guilty pleas. He said:

In this case as is effectively conceded your conviction was a foregone conclusion with respect to counts 2 to 4. I have to say the evidence against you with respect to count 1 was fairly strong as well given the cash provided by the UCO to the person that sold them the ounce of methylamphetamine was found effectively in your control in a stash of $600,000 in cash in a property belonging to your parents.

I have to say a trial of this matter, particularly with respect to counts 2 to 4 would have been straightforward with no involvement for any lay or civilian witnesses. No victim would have had to give evidence. It is nonetheless a relatively early plea if not a fast track one and worthy of recognition for its utilitarian benefits, modest as the benefits to the State are here. In my view, in all of the circumstances, it's appropriate to reduce the head sentence that would otherwise be imposed by 10% (ts 23 - 24).

21 His Honour considered that the appropriate sentence for count 2, the firearms offence, was one of 2 years but reduced this to 12 months for totality reasons. He also considered it appropriate to make some of the sentences concurrent having regard to the totality principle. The sentences imposed were count 1 - 3 years; count 2 - 12 months; count 3 - 7 years and count 4 - 3 years. The sentences imposed on counts 1, 2 and 3 were ordered to be cumulative and that imposed on count 4 concurrent. This produced a total effective sentence of 11 years' imprisonment. The appellant was ordered to be eligible for parole and the sentence was backdated to the day he first went into custody, 3 April 2013.

1. The learned sentencing judge erred in law by allowing a 10% discount for the pleas of guilty which was manifestly inadequate.
2. The learned sentencing judge erred in law by failing to properly apply the totality principle by ordering that counts 1, 2 and 3 all be served cumulatively upon one another, or, in the alternative, by failing to sufficiently reduce the length of some or all of the terms of imprisonment imposed upon the appellant.

23 At the hearing of the appeal leave was granted to add a third ground as follows:

1. The learned sentencing judge erred in fact in not concluding that the plea of guilty entered in respect of count 4 on the indictment was made at the first reasonable opportunity.

24 Leave to appeal was granted in respect of ground 1 and was referred to the hearing of the appeal in respect of ground 2.

25 It is convenient to deal with these two grounds together. Insofar as ground 1 is concerned it is suggested that 10% was an inappropriate discount in respect of counts 1 to 3 because the pleas were entered in the Magistrates Court and after negotiations which resulted in other charges being withdrawn. However, it was conceded that there had been a significant delay in entering those pleas and the case against the appellant was very strong, in particular in relation to counts 2 and 3. As regards the significance of the negotiations, counsel in the District Court conceded that there had been no impediment to the appellant entering pleas at an earlier stage. Insofar as he had delayed doing so to increase his bargaining position in relation to other charges, that is not a factor that negates the delay. In these circumstances there is no merit in ground 1.

26 The real substance of the appellant's complaint in respect of these grounds is that the sentencing judge made a factual error when including count 4 in comments regarding the lateness of the plea. Contrary to what his Honour stated, the plea of guilty in respect of count 4 was not made after six mention dates. It was, in fact, a fast track plea. That error was conceded by the respondent.

27 There can be no doubt that the plea in respect of count 4 was entered at the first reasonable opportunity. In those circumstances it was open to allow a discount of up to 25%: s 9AA Sentencing Act 1995 (WA). However, it is also relevant to take into account the strength of the prosecution case in considering the benefits to the State of the plea of guilty: Beins v The State of Western Australia [No 2] [2014] WASCA 54; Abraham v The State of Western Australia [2014] WASCA 151. As the sentencing judge correctly noted, the appellant was caught red-handed and the prosecution case against him in respect of counts 2 to 4 was very strong. In these circumstances an appropriate discount for count 4 is 20%.

28 The sentencing judge's discretion having miscarried in respect of one of the individual sentences forming part of the total effective sentence, the total effective sentence should be set aside: McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9]; The State of Western Australia v Cairns [2006] WASCA 178 [42].

29 In exercising the sentencing discretion afresh I would impose different sentences to those imposed by the sentencing judge, both to ensure that the full discount on count 4 is reflected in the total sentence and to reflect my own assessment of the seriousness of the offences and the personal circumstances of the appellant. The differences are in the sentence on count 4 and the orders as to cumulation. Making count 4 cumulative rather than count 1 ensures that the greater discount allowed on count 4 is reflected in the total effective sentence. The sentences I would impose are 3 years' imprisonment on count 1, 12 months' imprisonment on count 2, 7 years' imprisonment on count 3 and 2 years 6 months' imprisonment on count 4, with the sentences on counts 2, 3 and 4 being cumulative and that on count 1 to be served concurrently. This would produce a total effective sentence of 10 years 6 months' imprisonment.

30 Given the outcome on ground 3 and the resentencing arising from it, it is strictly unnecessary to deal with ground 2, which alleges an implied error. I will, however, address that ground as doing so serves to explain why sentences of the order imposed were not otherwise inappropriate.

31 The totality principle has two limbs. The first limb is relied upon here. It requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences having regard to all relevant circumstances, including those referable to the appellant personally.

32 Grounds of appeal that claim that the totality principle has been infringed assert implied error. That is, though no express error is apparent from the reasons of the sentencing judge, the result is said to be one that cannot be reconciled with the proper exercise of sentencing discretion. What must be demonstrated in such cases is that the sentence imposed was unreasonable or plainly unjust.

33 The considerations relevant to sentencing for offences in dealing in dangerous drugs of addiction were referred to in The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 [125]. The major sentencing considerations in such cases are general and personal deterrence. The weight of the drugs is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other relevant factors are the nature and level of the offender's participation in drug dealing and whether the offending was committed solely for commercial gain. The purity of the drug is often regarded as significant. Matters personal to an offender will almost always be a very limited consideration, though they are not completely irrelevant.

34 When considering whether a sentence is consistent with the standards that are usually observed it is necessary to have regard to comparable cases. However, each case will turn on its own particular facts and can provide only general guidance. Where totality is an issue and the comparison is not between sentences imposed for individual offences there is an increased level of complexity in the comparison exercise. Nevertheless, it is important to take into account comparable cases to ensure broad consistency in sentencing.

35 The appellant relies upon three cases, Phan v The State of Western Australia [2014] WASCA 144, Seeto v The State of Western Australia [2014] WASCA 221 and Ly v The State of Western Australia [2015] WASCA 18. It is submitted that, having regard to the sentences imposed in those cases, the total effective sentence imposed on the appellant was too high.

36 In Phan the appellant flew from Sydney to Perth with 1.0507 kgs of methylamphetamine with an average purity of 73.9% concealed in his bags. When interviewed he said he had been given sealed containers (that he suspected contained drugs) in Sydney and was instructed to bring them to Perth. He expected to be paid $5,000 for his work and had undertaken similar trips on two previous occasions. He was 19 at the time of the offence and 20 when sentenced. He had no prior record of offending and came from an impoverished background. He was convicted of one count of possession of methylamphetamine with intent to sell or supply and sentenced to 7 years and 4 months' imprisonment. An appeal against that sentence was dismissed.

37 In Seeto the appellant was involved in a number of importations of methylamphetamine from the Eastern States and had recruited couriers for this purpose. He was found in possession of 21.2 grams of methylamphetamine and a small quantity of MDMA. Whilst on bail he arranged for two quantities of methylamphetamine (431 grams and 277 grams to be transported from Sydney) and a further quantity that a courier refused to transport. He was charged with eight offences and sentenced to a total effective sentence of 15 years' imprisonment. The appellant in that case had entered pleas to all charges at an early stage and an assessment was made that he was entitled to a discount of 20%. The appeal was allowed, principally on the basis that the total effective sentence did not adequately reflect the fact that the appellant had pleaded guilty at an early stage. The appellant was resentenced in a manner that produced a total effective sentence of 12 years' imprisonment.

38 In Ly the appellant was convicted of three counts of possession of a prohibited drug with intent to sell or supply and was sentenced to a total effective sentence of 13 years' imprisonment. The appellant oversaw arrangements to transport 495 grams of methylamphetamine from Sydney. Subsequently a search of the home the appellant shared with a co-offender resulted in the finding of 174 grams of methylamphetamine (in amounts with purity varying between 0.2% and 63%) and 112 grams of heroin. The appellant was convicted after trial. She and her co-offenders were found to be operating towards the top end of a chain of distribution and doing so purely for commercial reward. An appeal against the total sentence was dismissed.

39 There are similarities and differences between the appellant's case and each of those referred to. Phan involved a single offence by a young offender who was much lower in the hierarchy of drug dealing than the appellant. Seeto involved an offender who was in a comparable position in the drug hierarchy and who committed more offences, but who pleaded guilty to all charges at an earlier stage and was entitled to a larger overall discount as a consequence. Ly also involved an offender in a comparable position to the appellant but who was convicted after trial, but this difference is reflected in the higher total sentence imposed in that case.

40 Whilst the other cases referred to involved larger quantities of methylamphetamines this needs to be seen in the context that the appellant admitted that he was involved in commercial dealing in the drug. This was evident from count 1. In these circumstances the methylamphetamine and MDMA located at his premises on 3 April 2013 must be viewed as merely his stock in trade. Whilst he is not to be punished on the basis that he had more than this amount in his possession counts 3 and 4 need to be seen in the context of a continuing commercial enterprise. It was clear that the appellant was a principal in this enterprise and that it was a highly successful one. The sentencing judge's findings in that regard are not challenged.

41 The possession of a loaded weapon, and indeed other similar items, is a significant aggravating feature that was not present in the other cases referred to. Firearms are a recognised attribute of commercial drug dealing, reflecting the high value of the product and the risks involved in dealing in it.

42 On the appeal counsel for the appellant placed particular emphasis on the sentence imposed in Seeto. He suggested that a sentence imposed by the Court of Appeal following a successful appeal was of particular significance. However, such a sentence does not set any standard by which other sentences are to be measured. It is simply another exercise of the sentencing discretion. No great assistance can be obtained from comparing the appellant's sentence with one other case. Having regard to the many other cases referred to in Seeto [46] - [56] there is no support for the proposition that the sentence imposed on the appellant infringed the totality principle. In addition I refer to Le v The State of Western Australia [2015] WASCA 73 and the cases referred to in annexure A thereto.

43 In my view, this ground of appeal has no reasonable prospect of success and I would refuse leave in respect of it.

(3) Appeal allowed in respect of ground 3 and the sentences imposed in the District Court be set aside and the appellant be resentenced to 3 years' imprisonment on count 1, 12 months' imprisonment on count 2, 7 years' imprisonment on count 3 and 2 years 6 months' imprisonment on count 4; the sentences on counts 2, 3 and 4 to be served cumulatively and that on count 1 to be concurrent; the appellant to be eligible for parole; the total effective sentence of 10 years 6 months' imprisonment be taken to have effect from the date the original sentence commenced.