Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - State appeal against sentence - Drug offences - Total effective sentence breached the first limb of the totality principle - Respondent resentenced

Criminal Appeals Act 2004 (WA), s 31, s 41(4)(b)

Sentencing Act 1995 (WA), s 9AA(2), s 32

Misuse of Drugs Act 1981 (WA), s 34(1)

Apkarian v The State of Western Australia [2015] WASCA 67

Barbaro v The Queen [2014] HCA 2; (2014) 236 A Crim R 116

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

Benter v The State of Western Australia [2005] WASCA 245

Bui v The State of Western Australia [2014] WASCA 168

Cant v The State of Western Australia [2009] WASCA 188

Chan v The Queen (1988) 38 A Crim R 337

Chu v The State of Western Australia [2012] WASCA 135

CMB v The Attorney General for New South Wales [2015] HCA 9; (2015) 89 ALJR 407

Dann v The State of Western Australia [2006] WASCA 254

Delovski v The Queen [2002] WASCA 88

Galbraith v The State of Western Australia [2011] WASCA 70

Giglia v The State of Western Australia [2010] WASCA 9

House v The King [1936] HCA 40; (1936) 55 CLR 499

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

Le v The State of Western Australia [2014] WASCA 120

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

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

Lynch v The State of Western Australia [2011] WASCA 243

Macri v The State of Western Australia [2006] WASCA 63

Monument v The State of Western Australia [2007] WASCA 239

Moreton v The State of Western Australia [2011] WASCA 258

Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

Pham v The State of Western Australia [2011] WASCA 244

Quach v The Queen [1999] WASCA 210

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

Sabau v The State of Western Australia [2010] WASCA 3

Stapleton v The Queen [2004] WASCA 130

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

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

The State of Western Australia v Hunter [2014] WASCA 87

The State of Western Australia v Littlefair [2013] WASCA 177

The State of Western Australia v Toothill [2007] WASCA 236

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

1 MARTIN CJ: This appeal against sentence should be allowed and the respondent resentenced in the manner proposed by Mazza JA, for the reasons given by his Honour, with which I agree.

3 MAZZA JA: This is a State appeal against sentence.

4 The State presented an indictment against the respondent in the District Court alleging five drug offences. On 22 April 2014, the respondent pleaded guilty to counts 1 to 4 (ts 61). The State accepted those pleas in full satisfaction of the indictment. The respondent also pleaded guilty to 19 offences contained in a notice pursuant to s 32 of the Sentencing Act 1995 (WA).

5 The details of the indictable offences and the sentences that were imposed are:

Attempt to possess methylamphetamine with intent to sell/supply

Possession of methylamphetamine with intent to sell/supply

Possession of methylamphetamine with intent to sell/supply

6 The details of the s 32 notice offences and the sentences that were imposed are:

s 7(2) Misuse of Drugs Act 1981 (WA) (MDA)

Possessing drug paraphernalia in or on which there is a prohibited drug/plant

Being not the holder of a licence or permit and being in possession of firearms and/or ammunition

s 19(1)(c), (1ad) Firearms Act 1973 (WA) (FA)

Failing to take reasonable precautions to ensure safekeeping of firearm/ammunition

s 23(9)(a) FA

Failing to take reasonable precautions to ensure safekeeping of firearm/ammunition

s 23(9)(a) FA

Being not the holder of a licence or permit and being in possession of firearms and/or ammunition

s 19(1)(c), (1ad) FA

s 6(2) MDA

s 6(2) MDA

Possessing drug paraphernalia in or on which there is a prohibited drug or a prohibited plant

Possessing drug paraphernalia in or on which there is a prohibited drug or a prohibited plant

Failing to stop when called upon to do so by police

s 53(2A) Road Traffic Act 1974 (WA) (RTA)

Causing excessive noise or smoke to be made with tyres

s 62A RTA

Total effective sentence: 6 months' IMP (cumulative on head sentence)

7 The total effective sentence imposed upon the respondent was 6 years 6 months' imprisonment with eligibility for parole, to commence on 11 July 2013 (ts 66).

8 The State relies upon three grounds of appeal, all of which allege implied error. Grounds 1 and 2 allege that two of the individual sentences (in respect of counts 2 and 4 in the indictment) are manifestly inadequate. Ground 3 alleges that the total effective sentence of 6 years 6 months' imprisonment infringes the first limb of the totality principle. Leave to appeal has been granted in respect of all grounds.

9 For the reasons that follow, I would allow the appeal and resentence the respondent.

10 No issue was taken in the court below with the facts of the respondent's offending. In respect of the indictable offences, they were described by the prosecutor in these terms:

So the facts in relation to the matters on the indictment ... are that the offender, Mr Wilson, and his co-accused, Ms Hayward ... have been involved in a de facto relationship on and off for some time, they reside at different addresses, but cohabitate at each other's home at various periods of time.

Police allege that they were actively involved in the importation of traffickable quantities of methylamphetamine into Western Australia. Indeed, the basis for that is the charge for count 1.

Through inquiries police identified four envelopes containing 71.4 grams of grams of methylamphetamine and this arrived at the Falcon Post Office addressed to a PO box which was believed to be controlled by Mr Wilson and his co-accused.

The methylamphetamine was substituted and the envelopes were placed in the PO box awaiting collection. At 10.23 am on Tuesday, 2 July last year [2013] Ms Hayward attended the Falcon Post Office and was observed removing and inspecting the four envelopes from post office box 5301.

She then attended the address [of] Cathryn Street, Halls Head, which is the home of Mr Wilson. On arrival at this address she accessed the house through the front door.

Police then executed a search warrant under the Misuse of Drugs Act and located the four envelopes containing the substituted substance resembling methylamphetamine.

In relation to count 2 the facts are that during the search at Cathryn Street Mr Wilson was not present at the address on police arrival, but Ms Hayward was. During the course of the search Wilson did attend and parked his silver Toyota Yaris on the driveway and sounded the vehicle horn.

Once Organised Crime detectives went to the driveway and identified themselves to him he immediately fled in his car to evade arrest. Police gave chase, but he was unable to be located and on searching the premises police located an area of concealment within the front lounge room coffee table.

Hidden within this compartment was a black sock which contained an amount of methylamphetamine. Further scrutiny of the compartment revealed a large vacuum-sealed bag which contained a further amount of methylamphetamine and the total amount is 303.7 grams of methylamphetamine.

In relation to count 3, this is also an amount of drugs located at the Cathryn Street address in Halls Head. Police located cannabis being dried in various locations throughout the house, including the kitchen table and the bathroom. In total it was an amount of 2 kilos, 677.07 grams of cannabis.

In relation to the final count ... at 11.34 am on Thursday, 11 July [2013] Organised Crime detectives attended Unit 122B at Woodman Point Caravan Park located on Cockburn Road in Munster. They entered the premises and the offender was arrested under suspicion [of] ... possession of a prohibited drug with intent to sell or supply ...

As a result of searching the property three large clipseal bags containing white crystal [were] located ...

[T]he total amount for those three bags was 371.3 grams of methylamphetamine so, your Honour, the circumstances are that the offender hadn't yet been charged for counts 1 to 3 (white AB 88 - 90).

11 It is unnecessary to set out the details of all of the s 32 notice offences. It is sufficient to note that during the search of the Cathryn Street address, police noticed an unlicensed Diana .177 air rifle in the front hallway and found a loaded Winchester .22 rifle hidden in the roof space (ts 48). Inquiries revealed that the rifle had been stolen in a burglary in 2011. The respondent has never held a firearms licence. During the search, the police also found $196,600 in cash hidden in the inner panel of a coffee table (ts 66). The firearms offences to which I have referred were the subject of counts 1, 2, 7 and 10 in the s 32 notice and the cash was the subject of count 17 in that notice.

12 Neither the State nor the respondent challenges any of the findings made by the learned sentencing judge in his sentencing remarks.

13 His Honour found that, although at the time of his offending, the respondent had relapsed into heroin use and owed money for his drug purchases, he was engaged in the distribution of illicit drugs into the community for commercial gain (ts 63). As to the respondent's role in the distribution of drugs, his Honour said:

Clearly you had the ability to access large amounts of the drugs at reasonably high levels of purity within a short period of time. The fact that you were entrusted with that amount of the drug and the fact that you had [a] large amount of cash that you say was going to be distributed back to your dealer just goes to show the extent of your involvement (ts 63).

14 With respect to mitigating factors, his Honour gave a discount of 25% for the respondent's pleas of guilty, the maximum available under s 9AA(2) of the Sentencing Act. He also gave the respondent further credit for genuine remorse and 'difficulties' the respondent had suffered at the hands of other prisoners while in custody (ts 63). His Honour observed that the respondent had used his time 'constructively' while on remand and that he planned to enrol in a bachelor of science course.

15 His Honour noted the respondent's prior criminal history which he said stopped him 'from imposing sentences as lenient as I would have had you had absolutely no record' (ts 64).

16 His Honour said that the major sentencing considerations in respect of the indictable offences were personal and general deterrence (ts 62). His Honour expressly referred to and applied the totality principle, saying:

I indicate that I have reduced the [individual] sentences I would otherwise have imposed on the counts on the indictment to reflect the fact that I am going to order a degree of cumulacy (ts 64).

17 At the time he was sentenced, the respondent was 39 years of age. He and his de facto partner, Ms Haywood, have a young daughter. It was conceded on behalf of the respondent that he has 'an extremely lengthy history of [prior] offending' (AB 124). That characterisation is accurate. The respondent has, since he turned 18 years of age, offended with little respite. He has been convicted on multiple occasions of various drug offences, as well as burglary and dishonesty offences, traffic offences, breach of bail and giving false personal details. In 2008, in the Perth Magistrates Court, he was convicted of possession of amphetamine with intent to sell or supply and possessing a firearm or ammunition while unlicensed. For these offences he was placed on a 12 month intensive supervision order. The respondent has been placed on various types of community orders without apparent success. He has been fined and sentenced to terms of suspended and immediate imprisonment.

18 Regrettably, the respondent has been a user of illicit drugs since the age of 17 and heroin since the age of 19 (AB 124). He is prone to relapsing into heroin use when confronted with 'major upheavals' in his personal life (ts 53, 62). At the time of the present offending, it was said on the respondent's behalf that he was using $3,000 worth of heroin a day and owed money to his drug supplier (ts 53).

19 The general principles applicable to this appeal are uncontroversial. This court has no warrant to substitute its own opinion for that of the sentencing judge merely because it would have exercised the discretion differently: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. This court can only intervene if it is demonstrated that the court below made a material error, either express or implied. There are special principles applicable to prosecution appeals. They are well established and need not be repeated, bearing in mind that the principle of double jeopardy which applied to State appeals has now been abolished: s 41(4)(b) Criminal Appeals Act 2004 (WA). This court has residual discretion under s 31 of the Criminal Appeals Act to decline to allow an appeal against a sentence that is erroneously lenient.

20 As I have said, the grounds of appeal allege implied rather than express error. Before an individual sentence can be said to be manifestly inadequate or the total effective sentence be found to infringe the totality principle, it must be established that the sentence is unreasonable or plainly unjust: House v The King [1936] HCA 40; (1936) 55 CLR 499 and Barbaro v The Queen [2014] HCA 2; (2014) 236 A Crim R 116 [26].

21 The orthodox approach to the question of manifestly inadequacy is to examine the sentence having regard to the maximum sentence for the offence, the gravity of the offending conduct in the scale of seriousness, sentences imposed in other appellate cases and the personal circumstances of the offender: Chan v The Queen (1988) 38 A Crim R 337, 342 and Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [33].

22 The first limb of the totality principle requires that the total effective sentence 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: Roffey v The State of Western Australia [2007] WASCA 246 [24].

23 A relevant factor in the consideration of the State's grounds of appeal is the range of sentences imposed in comparable cases. Such cases are a yardstick against which the sentences in question may be compared. However, the range of sentences customarily imposed does not mark out the boundaries of the exercise of a sound sentencing discretion in an individual case. In other words, the guidance that is afforded by comparable cases is flexible rather than rigid. Ultimately, each case depends upon its own facts and circumstances.

24 When reviewing sentencing cases for drug offences, I observe, as this court did in Sabau v The State of Western Australia [2010] WASCA 3, that most cases concern offenders sentenced for multiple drug offences in which the individual sentences may reflect reductions for totality considerations. As a result, comparisons are ordinarily made between the aggregate quantity of drugs and the total effective sentence.

Sentencing principles for offences of dealing or trafficking in dangerous drugs of addiction

25 The consistent line of appellate authority in this State is that the major sentencing consideration for offences of dealing or trafficking in dangerous drugs of addiction is general and personal deterrence. The weight and purity of the drugs in question are not, generally, the chief factors to be taken into account in fixing a sentence, although they are matters of importance. This is because it can be presumed that the greater the quantity and the purity, the more harm may be done to the community. Therefore, the culpability of the distributor is greater.

26 Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or whether the offending was committed solely for commercial gain. Matters personal to an offender will almost always be of very limited consideration, but they are not completely irrelevant: see Bellissimo v The Queen (1996) 84 A Crim R 465, 471; Macri v The State of Western Australia [2006] WASCA 63 [21]; The State of Western Australia v Andela [2006] WASCA 77 [16]; The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 [125] and Apkarian v The State of Western Australia [2015] WASCA 67 [52].

Grounds 1 and 2 - were the individual sentences on counts 2 and 4 in the indictment manifestly inadequate?

27 Senior counsel for the appellant, while not abandoning grounds 1 and 2, accepted in argument before this court that '[In] the end, the contention is one of totality' (appeal ts 8 and 14). As was said in Giglia v The State of Western Australia [2010] WASCA 9 [40], generally speaking, where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. However, there will be times when it is appropriate to examine an individual sentence 'because it may have proceeded on an incorrect factual basis or it may be tainted by some other demonstrable error': Giglia [40].

28 Because grounds 1 and 2 have not been abandoned, they must be determined.

29 The maximum penalty for possessing a prohibited drug with intent to sell or supply it to another is 25 years' imprisonment or a fine of up to $100,000 or both: s 34(1) Misuse of Drugs Act 1981 (WA). In each of counts 2 and 4, the respondent possessed very significant quantities of methylamphetamine. The learned sentencing judge's description of them being of a reasonable purity is something of an understatement. The purity was, in each offence, very high. The potential for the drug to be 'cut', and thus increase the amount to be distributed into the community, was great.

30 Upon the material before the learned sentencing judge, it appeared that the respondent was not at the pinnacle of the drug distribution hierarchy. Clearly, someone else was supplying him with the drugs. However, given the quantities and the purity of the methylamphetamine he possessed and the very substantial quantity of cash found at the Cathryn Street address, the respondent must have been close to the source of the drugs. Further, the respondent must have been a trusted associate of whomever was above him in the drug hierarchy. Although the respondent was himself addicted to heroin and was apparently indebted to his supplier, the fact remains that the respondent's primary motive for his offending was commercial.

31 Apart from the pleas of guilty, there was little else by way of mitigation that could weigh in his favour. The respondent is not a person of prior good character. His illicit drug use appears entrenched. The learned sentencing judge, perhaps generously, found that the respondent was genuinely remorseful for his offending. His Honour relied upon the contents of the pre-sentence report to, in part, base this conclusion. There does not appear to be anything in the pre-sentence report to that effect. As the State made no challenge to his Honour's finding, it is to be accepted. However, given the seriousness of each offence, the respondent's remorse carries only little weight.

32 It is significant that count 4 was committed after the respondent evaded arrest at the Cathryn Street address. Within days, he had sourced another large quantity of high-purity methylamphetamine. Plainly he did so intending to continue selling it.

33 In support of the contention that each of the sentences in counts 2 and 4 were manifestly inadequate, the State cited the following cases which, it was said, indicated that conclusion: Quach v The Queen [1999] WASCA 210; Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522; Stapleton v The Queen [2004] WASCA 130; Benter v The State of Western Australia [2005] WASCA 245; Dann v The State of Western Australia [2006] WASCA 254; Cant v The State of Western Australia [2009] WASCA 188; Lynch v The State of Western Australia [2011] WASCA 243; Pham v The State of Western Australia [2011] WASCA 244; Moreton v The State of Western Australia [2011] WASCA 258; Chu v The State of Western Australia [2012] WASCA 135; The State of Western Australia v Littlefair [2013] WASCA 177; The State of Western Australia v Hunter [2014] WASCA 87 and Le v The State of Western Australia [2014] WASCA 120.

34 The respondent did not cite any authorities relevant to the allegations of manifest inadequacy.

35 It is unnecessary to canvass the facts and circumstances of each case in these reasons. My review of the cases cited by the State points very clearly to the conclusion that the individual sentences imposed in this case were substantially less than those imposed in broadly comparable cases, particularly in those cases decided in more recent years such as Cant, Lynch, Moreton, The State of Western Australia v Littlefair and The State of Western Australia v Hunter.

36 Having taken all of the relevant circumstances into account, and bearing in mind the need for personal and general deterrence, each sentence, had it stood alone, would have been manifestly inadequate. However, the sentences did not stand alone. Each sentence, as the learned sentencing judge said, was reduced to take into account totality considerations. His Honour did not specify what effect this consideration had on each of the sentences in question, but he was not required to do so. Because of this, I have not been persuaded that the individual sentences in counts 2 and 4 were manifestly inadequate. Accordingly, I would dismiss grounds 1 and 2. The dismissal of these grounds, however, does not lead to the conclusion that the total effective sentence was an appropriate reflection of the totality of the respondent's offending. This leads to a consideration of ground 3.

Ground 3 - did the total effective sentence infringe the first limb of the totality principle?

37 With great respect to the learned sentencing judge, it has been very clearly demonstrated that the total effective sentence imposed upon the respondent infringed the first limb of the totality principle.

38 It is unnecessary to say anything more about the seriousness of counts 2 and 4. In addition to those offences, the respondent committed counts 1 and 3, and the offences on the s 32 notice. Although count 1 constituted an attempt, this was only because the police substituted the 71.4 g of methylamphetamine at 76% purity in the envelopes with an inert substance before Ms Haywood took delivery of them from the post office. Not only was the respondent dealing in methylamphetamine, but he was also dealing in cannabis. The 2.677 kg of cannabis found drying in various parts of the Cathryn Street address is, on any account, a substantial quantity of the drug consistent with a commercial operation. It is aggravating that the respondent had, at the Cathryn Street address, firearms, one of which - the Winchester .22 calibre rifle - was loaded. The very large sum of cash found there showed that the respondent's drug dealing was both substantial and lucrative.

39 Plainly, the respondent was not deterred from his activities by the events of 2 July 2013. As I have said, he was able, soon after, to obtain another large quantity of high-quality methylamphetamine with the intention of continuing his operation. His determination to keep dealing in methylamphetamine underscores the need to impose a total effective sentence that provides personal deterrence.

40 I will not repeat what I have already said about the respondent's personal circumstances. I acknowledge the mitigation given for the respondent's early pleas of guilty.

41 The State cited the following cases to support its contention that the first limb of the totality principle had been infringed: Delovski v The Queen [2002] WASCA 88; Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107; The State of Western Australia v Toothill [2007] WASCA 236; Monument v The State of Western Australia [2007] WASCA 239 and Galbraith v The State of Western Australia [2011] WASCA 70.

42 I have considered some of the cases cited by the State in support of grounds 1 and 2 of this appeal, including Pham and Chu. I have also had regard to the recent cases of Bui v The State of Western Australia [2014] WASCA 168 and Ly v The State of Western Australia [2015] WASCA 18.

43 These cases support the State's argument that there has been an infringement of the first limb of the totality principle.

44 Senior counsel for the respondent submitted that the total effective sentence 'may be seen to be lenient', but was not erroneous (appeal ts 10). Of course, mere lenience would be an insufficient basis for this court to intervene. However, the total effective sentence was not merely lenient. Having regard to all of the relevant circumstances of this case, I have been persuaded that the total effective sentence of 6 years 6 months' immediate imprisonment infringed the first limb of the totality principle because it was not an adequate reflection of the overall criminality involved in the offences committed by the respondent, viewed in their entirety and having regard to all of the circumstances, including those referable to the respondent personally. Implied error has been demonstrated. Subject to the question of whether the residual discretion should be invoked, the respondent must be resentenced.

45 There is no onus upon the respondent to establish that the residual discretion should be exercised in his favour: CMB v The Attorney General for New South Wales [2015] HCA 9; (2015) 89 ALJR 407. But no submission has been put to the effect that if any of the grounds of appeal are made out, this court should decline to intervene. I can see no reason why this court should not intervene. Error has clearly been established. Moreover, this court's intervention is required to not only correct the total effective sentence that was originally imposed, but also to maintain proper sentencing standards with respect to drug offending of the kind committed by the respondent.

46 I have already canvassed the facts of the offending, the respondent's personal circumstances and the relevant sentencing principles. The respondent entered pleas of guilty at the earliest reasonable opportunity. Those pleas warranted the 25% reduction given at first instance. Having regard to all relevant factors, including totality, I would impose a total effective sentence of 8 years 6 months' imprisonment. I would not interfere with the individual sentences imposed by the learned sentencing judge for the indictable offences. However, I would set aside the orders for cumulacy and concurrency in respect of the counts in the indictment, and order that the sentences on counts 2 and 4 be served cumulatively upon each other and that the sentences on counts 1 and 3 be served concurrently with each other and concurrently with count 2. Thus the total sentence for the indictable offences is 8 years' imprisonment.

47 With respect to the individual sentences imposed for the s 32 notice offences, I would not interfere with them, noting that his Honour ordered that the sentence on count 17, being possession of $196,600 reasonably suspected to be unlawfully obtained, of 6 months' imprisonment is to be served cumulatively upon the sentences imposed for the indictable offences. That order for cumulacy should not be disturbed.

48 The orders made for parole eligibility and backdating will remain.