Criminal law - Appeal against sentence - Three counts of possession of a prohibited drug with intent to sell or supply - One count of possession of cash reasonably suspected to be unlawfully obtained - Seven charges on s 32 notice - Plea of guilty - Total effective term of two years' imprisonment - Whether infringed first limb of totality principle - Whether 18 months' imprisonment for possession of 7.16 g of methylamphetamine with intent to sell or supply manifestly excessive

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

Bosworth v The State of Western Australia [2007] WASCA 144

Chan v The Queen (1989) 38 A Crim R 337

Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246

Fenton v The State of Western Australia [2015] WASCA 255

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

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Maric v The State of Western Australia [2015] WASCA 190

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

The State of Western Australia v Atherton [2009] WASCA 148

Trang v The State of Western Australia [2010] WASCA 44

Truscott v The State of Western Australia [2016] WASCA 58

(These reasons were delivered extemporaneously and have been edited from the transcript.)

1 This is an application for leave to appeal against sentence. The appellant was convicted upon his plea of guilty in the District Court of four counts in an indictment, being three counts of possession of a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA), and one count of being in possession of $1805 in cash that was reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA); and to seven charges on a notice under s 32 of the Sentencing Act 1995 (WA). He was sentenced to a total effective term of 2 years' immediate imprisonment, with eligibility for parole.

2 The appellant contends that in respect of one of the counts on the indictment of possession of a prohibited drug with intent to sell or supply, and on one of the charges on the s 32 notice of possession of a prohibited drug, the sentence was manifestly excessive, and that the total effective term of 2 years' imprisonment infringed the totality principle.

3 On 25 June 2015, police stopped the appellant's vehicle in Bassendean in connection with traffic violations. A search of the vehicle located a backpack in which there were two plastic containers. In one container there were seven small clipseal bags containing a total of 9.47 g of cannabis. In the other, there were three medium sized small clipseal bags containing a total of 30.1 g of cannabis. The total cannabis seized was 39.57 g.

4 In the same backpack, police found a plastic container in which there were five clipseal bags containing a total of 6.89 g of methylamphetamine, including 3.92 g with a purity of 78%. The backpack was also found to contain numerous unused small clipseal bags of the same type as those containing the methylamphetamine, a calculator, and a diary (or 'tick list') containing monetary amounts of incoming and outgoing transactions.

5 A later search of the appellant's house located a clipseal bag containing 0.27 g of methylamphetamine and a set of scales that the appellant admitted he used to weigh his drugs and other items. The total amount of methylamphetamine on this count was therefore 7.16 g.

6 During the search of the appellant's vehicle, police located a plastic bottle containing 74 dexamphetamine tablets. In the search of the appellant's home, police located another plastic bottle containing 88 dexamphetamine tablets. The total of 162 dexamphetamine tablets had a weight of 32.4 g.

Police located $1,205 cash in the appellant's wallet and a further $600 in cash at the appellant's home.

The s 32 notice

7 On the search of the appellant's home, police located:

(a) two rounds of Winchester ammunition and one 12 gauge shotgun round;

(c) a smoking implement and other cone pieces with detectable traces of cannabis;

(d) a smoking implement with traces of methylamphetamine;

8 On the search of the appellant's vehicle, police located a knuckleduster or kubotan with a dagger blade inside.

9 The appellant refused a request by police to provide the unlock codes for his two iPhones and Samsung mobile phone seized by police because it was reasonably apprehended that they contained evidence of a serious offence. A data access order was then obtained but the appellant failed to comply with it.

10 On 3 December 2015, police stopped the appellant's vehicle in Bayswater. A search of the vehicle located a small plastic box behind the dashboard in which were three clipseal bags containing methylamphetamine of a total weight of less than a gram.

11 The offences and the sentences imposed were as follows:

Possession of prohibited drug with intent to sell or supply (cannabis)

Misuse of Drugs Act,

s 6(1)(a)

Possession of prohibited drug with intent to sell or supply (methylamphetamine)

Misuse of Drugs Act,

s 6(1)(a)

Possession of prohibited drug with intent to sell or supply (dexamphetamine)

Misuse of Drugs Act,

s 6(1)(a)

Firearms Act 1973 (WA),

s 19(1)(c)

s 32 notice

Misuse of Drugs Act,

s 6(2)

s 32 notice

Misuse of Drugs Act,

s 32 notice

Misuse of Drugs Act,

s 32 notice

Weapons Act 1999 (WA),

s 6(1)(b)

Possession of a prohibited drug (methylamphetamine)

Misuse of Drugs Act,

s 6(2)

12 The sentencing judge noted that at the time of the offending the appellant was 31 years of age. He had completed year 10 at school and had a good employment history. He had a supportive family. The appellant had previously used drugs for a considerable period of time and had turned to them again about two years before this offending following the breakdown of a relationship.

13 His Honour observed that the appellant was a long-term user of cannabis and had also used methylamphetamine and dexamphetamine. The escalation of the appellant's need for prohibited drugs had caused him to become involved in drug dealing at street level to fund his own drug habit. Although the appellant's offending was towards 'the lower end of the scale', his Honour concluded that the quantities of the drugs involved in the indictable offences did not, on their own, reflect the seriousness of the offending. His Honour noted that the appellant was prepared to disseminate a number of different types of prohibited drugs to others in order to obtain money and that he had done so. The sentencing judge referred to the substantial tick lists which showed the extent and scale of the appellant's operation. His Honour concluded that the appellant's drug dealing was not a one-off aberration but an on-going business.

14 The sentencing judge noted the view of the author of a pre-sentence report that the appellant's underlying issues and the cause of his offending appeared to be related to negative peer association, unaddressed mental health issues, and poor coping mechanisms and decision-making skills. The sentencing judge considered that the fact that the appellant had now sought counselling indicated some hope for his rehabilitation.

15 His Honour noted that the appellant had a prior record of offending (which included convictions for possession of prohibited drugs and on one occasion possession of dexamphetamine with intent to sell or supply it to another) and the sentences imposed on those occasions had not acted as a 'wake-up call'. His Honour later said that there was a need to specifically deter the appellant from committing similar offences in the future. The only mitigating factor was the appellant's plea of guilty, which was at the first reasonable opportunity, and for which the sentencing judge allowed a discount of 25% on the sentence for each offence.

16 The sentencing judge concluded that the total effective sentence should be 2 years' immediate imprisonment. To achieve this, he ordered that the sentences on counts 1 and 2 on the indictment and on the charge of possession of methylamphetamine on the s 32 notice be served cumulatively, and the other terms of imprisonment be served concurrently with them. The appellant was made eligible for parole.

1. The sentence of 18 months' immediate imprisonment on count 2 and the sentence of three months' imprisonment on the charge of possession of methylamphetamine on the s 32 notice were each manifestly excessive;
2. The total effective sentence infringed the first limb of the totality principle.

Disposition of the proposed grounds of appeal

18 The relevant legal principles are well-established. An appellate court can intervene only if the appellant establishes a material error, either express or to be inferred, by the sentencing judge. It cannot intervene merely because it would have exercised the sentencing discretion differently.

19 A ground of appeal alleging that a sentence is manifestly excessive relies on inferred error. When considering whether a sentence is manifestly excessive, it is necessary to view the sentence in light of the maximum sentence prescribed by law for the offence, the standard of sentencing customarily observed with respect to the offence, the place that the criminal conduct occupies on the scale of seriousness of offences of that type, and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.

20 The first limb of the totality principle, on which the appellant relies in this case, requires a judge who is sentencing an offender for multiple offences to ensure that the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally. In this case, it is necessary to emphasise those principles as counsel for the appellant erroneously approached ground 2 by focusing on the individual sentence imposed on count 1 of the indictment rather than on an analysis of all of the appellant's offending.

21 In considering whether a sentence is manifestly excessive or infringed the first limb of the totality principle, it is necessary, in order to ensure broad consistency in sentencing, to have regard to sentences customarily imposed in cases involving similar offending: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [53] - [54]. But in doing so it is necessary to bear in mind that other cases can provide only a broad guideline because of the considerable variation in the nature and circumstances of the offending and the personal circumstances of the offender: Fenton v The State of Western Australia [2015] WASCA 255 [17]. The range of sentences that have been imposed in the past does not fix the boundaries within which judges must, or even ought to, sentence in the future: Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [39] - [40]. Each case must ultimately be determined on its own facts and circumstances.

22 Finally, as this court has said on many occasions, where there is a challenge on totality grounds, the severity of a sentence on an individual count falls to be assessed, not in isolation, but in light of the sentences imposed on the other counts. The real question on the appeal is whether the total effective sentence infringes the totality principle: see Giglia v The State of Western Australia [2010] WASCA 9 [40]. It is to that question we now turn.

23 The major sentencing consideration for offences of possession of a prohibited drug with intent to sell or supply are general and personal deterrence. The weight of the drugs in question is a matter of importance, but is not, generally, the chief factor to be taken into account. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing and whether the offence was committed solely for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be of very limited significance, although they are not completely irrelevant: The State of Western Australia v Atherton [2009] WASCA 148 [125].

24 No cases were specifically referred to by counsel for the appellant for comparison purposes. We have, however, had regard to the sentences imposed in a number of other cases, including Trang v The State of Western Australia [2010] WASCA 44 and Apkarian v The State of Western Australia [2015] WASCA 67, but due to the differences in the circumstances of the offending and the offenders in the other cases they are of limited assistance.

25 In Trang, the offender entered a fast track plea of guilty to one count on an indictment of possession of heroin (4.73 g with a purity of 51%) with intent to sell or supply, and he also pleaded guilty to five charges in a notice under s 32 namely, two counts of possessing heroin (0.46 g and approximately 3.9 g respectively), one count of possessing methylamphetamine (2.65 g), one count of possessing MDMA (11 tablets weighing approximately 2.49 g) and one count of possessing cash ($1,720) reasonably suspected of having been obtained unlawfully. It was found that the offender was a 'user-dealer' of drugs, with previous convictions for drug offences, and had sold drugs to support his own habit and his lifestyle. There was minimal mitigation beyond the plea of guilty. An appeal against a total effective sentence of 4 years' imprisonment was allowed (by a majority) and a sentence of 3 years and 4 months' imprisonment imposed.

26 In Apkarian, the offender pleaded guilty at the earliest reasonable opportunity to three counts on indictment of selling heroin. The counts involved the sale of 0.06 g for $100; 0.07 g for $100; and 0.13 g for $200. The offender was sentenced to 12 months' imprisonment on each count and a total effective sentence of 2 years' imprisonment. The offender, who was a drug addict with a long criminal record, was described as a low-level street dealer of heroin who sold small quantities of the drug for financial reward, primarily to feed his own habit. An appeal against sentence was dismissed.

27 In this case, the appellant's drug-related offending was not an isolated aberration but an ongoing street-level operation conducted for personal gain. He dealt in a variety of prohibited drugs. The presence of clipseal bags, scales, weapons, tick lists and cash showed a degree of organisation and persistence. The fact that the appellant was also a drug user and dealt in drugs to support his habit did not reduce the seriousness of his offending: Maric v The State of Western Australia [2015] WASCA 190 [19]. The appellant did not have the benefit of prior good character or youth. He had previous convictions for possession of prohibited drugs and a prior conviction for possession of a prohibited drug with intent to sell or supply. The appellant is not, of course, to be punished again for those offences, but the fact that they have not caused the appellant to change his ways emphasises the need for personal deterrence. The only mitigating factor was the appellant's plea of guilty, for which his Honour gave a 25% discount under s 9AA of the Sentencing Act.

28 In the circumstances, the total effective sentence of 2 years' immediate imprisonment was clearly within a sound exercise of the sentencing discretion. This ground of appeal has no reasonable prospect of succeeding.

29 To the extent it is necessary to determine ground 1, this ground also has no reasonable prospect of succeeding. In the circumstances we have set out above, the sentence of 18 months' immediate imprisonment on count 1 on the indictment was clearly within a sound exercise of the sentencing discretion. See, for example, Bosworth v The State of Western Australia [2007] WASCA 144; Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246; Truscott v The State of Western Australia [2016] WASCA 58. The charge of possession of methylamphetamine on the s 32 notice involved a small amount of the drug but the offence was committed while the appellant was on bail in the circumstances we have set out above. Although such an offence would usually call only for a fine, in this case we would not interfere with the sentence that was imposed.

30 As neither ground has a reasonable prospect of succeeding, leave to appeal must be refused, with the consequence that, pursuant to s 27(3) of the Criminal Appeals Act 2004 (WA), the appeal is taken to have been dismissed.

1. Leave to appeal on each ground is refused; and
2. The appeal is dismissed.