Criminal law and sentencing - Drug offences - Totality principle - Whether total effective sentence of 6 years 10 months' imprisonment breaches the first limb of the totality principle

Bahn v The State of Western Australia [2008] WASCA 40

Barnes v The State of Western Australia [2004] WASCA 258

Bellissimo (1996) 84 A Crim R 465

Carlucci v The State of Western Australia [2019] WASCA 37

Cartwright v The State of Western Australia [2010] WASCA 4

Chadburne v The State of Western Australia [2017] WASCA 216

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

Nguyen v The State of Western Australia [2017] WASCA 195

The State of Western Australia v Doyle [2017] WASCA 207

Tirkot v The State of Western Australia [2018] WASCA 41

Towler v The State of Western Australia [2018] WASCA 141

Tran v The State of Western Australia [2016] WASCA 37

Vu v The Queen [2006] NSWCCA 188

1. On 29 August 2018, the appellant was convicted of five drug-related offences following a seven-day trial. At the commencement of his trial, the appellant had pleaded guilty to six other drug-related offences.
2. On 29 November 2018, the appellant was sentenced for those 11 offences to a total effective sentence of 6 years 10 months' imprisonment. The details of each count, the appellant's pleas in relation to each count and the sentences imposed on each count are outlined in the table below:

Possession of cannabis with intent to sell or supply

Possession of methylamphetamine with intent to sell or supply

Possession of money reasonably suspected to be unlawfully obtained

Unlawfully disobeying a data access order in respect of an iPhone

Unlawfully disobeying a data access order in respect of a Phantom Secure BlackBerry

10 months' imprisonment, reduced to 6 months on totality grounds

1. The appellant appeals his sentence on the sole ground that his total effective sentence infringes the first limb of the totality principle. For the reasons that follow, there is no merit in that ground. Leave to appeal must be refused, and the appeal dismissed.

1. The sentencing judge made the following unchallenged findings as to the circumstances of the appellant's offending.
2. In 2016, the appellant was engaged in the sale of pounds of cannabis on a wholesale basis and, as best could be known, up to ounces of methylamphetamine on a wholesale and retail basis.[1] The appellant became caught up in a police investigation, and interception warrants were obtained for some of the telephone services the appellant was using.[2]
3. On 10 July 2016, someone called one of the appellant's telephone services asking for a kilo of cannabis. The appellant said, 'I've got them right here now'.[3] Fifteen minutes later, another person called the appellant. The appellant replied to the effect that he would have to go to the locker to supply the cannabis being requested, and that he could sell it for $4,000.[4] On 15 July 2016, the appellant called another person and offered to deliver 2 lb (907 g) of cannabis for $4,200 per pound.[5] These three calls formed the subject of counts 1, 2 and 3 respectively.
4. On 25 July 2016, the appellant received a request for half an ounce of methylamphetamine by text and call. In response, the appellant offered a full ounce and tried to persuade the other person that the economies of scale made that a better deal, in part because the appellant himself could not obtain half an ounce.[6] These conversations formed the subject of count 4.
5. Although the judge did not make a specific finding as to count 5, the evidence at trial established that, on 26 July 2016, the appellant called another person and offered to supply a pound of cannabis for $4,000.[7]
6. On 3 August 2016, Jamie Nellis and Jessica Osborne drove to the appellant's apartment in North Fremantle to pick up an ounce of methylamphetamine. Mr Nellis went to the house and came back with a bag of methylamphetamine supplied by the appellant.[8] This formed the subject of count 6. The judge found that this offence was part of a regular process of supply of methylamphetamine by the appellant to Mr Nellis.[9]
7. On 27 October 2016, the police found 11 lb of cannabis carefully vacuum-sealed in individual one-pound bags in a self-storage locker used by the appellant and registered in the name of Dennis Rusec. Mr Rusec pleaded guilty to the same offence and was sentenced on the basis that his culpability was as an aider, in that he had helped the appellant to commit the offence by providing the storage facility and access to it. The locker also contained a money-counting machine. The sentencing judge was satisfied that the cannabis was the stock-in-trade of the appellant's cannabis business and that his intention was to sell it.[10] This formed the subject of count 7.
8. On 13 March 2017, the appellant was stopped by police at a time when he was on bail for some of the drug offences outlined above. The police found a total of $3,179 in cash, an iPhone, a Phantom Secure BlackBerry and just under 10 g of high-purity methylamphetamine in the appellant's possession.[11] The quantity of methylamphetamine and the cash formed the subject of counts 8 and 9 respectively. The sentencing judge allowed for the possibility that some very small portion of the methylamphetamine might have been for personal use, but that the greatest part of the just under 10 g was intended to be sold by the appellant.[12] So far as the cash was concerned, the appellant did not have lawful employment at the time. The sentencing judge was satisfied that all the money found was derived from drug trafficking.[13]
9. On 28 April 2017, the appellant failed, without reasonable cause, to comply with data access orders served on him in relation to the iPhone and Phantom BlackBerry found on him on 13 March 2017, constituting counts 10 and 11, respectively. The sentencing judge was satisfied that the appellant used the BlackBerry for drug trafficking, and that his refusal to provide the PIN numbers of both phones was for the sole purpose of frustrating the police investigation of serious drug-trafficking offences.[14]

1. The appellant was 24 years old at the time of sentence and 22 years old during the period of his offending.
2. The appellant's parents had a troubled relationship, and they separated when the appellant was 12 years old. The appellant's father was convicted of a drug offence and sentenced to 18 months' imprisonment. The appellant's mother struggled after the separation, abusing prescription drugs, which caused problems in her relationship with the appellant. That led to the appellant moving to live with his aunt.[15]
3. The appellant's relationship with his mother has now improved and he now also has a close relationship with his father.[16]
4. At the time of sentence, the appellant was single with no dependants.[17]
5. The sentencing judge considered that the appellant was reasonably intelligent, but that 'cunning' might be a more accurate description.[18]
6. The appellant completed an apprenticeship in electrical mechanics in August 2015 and had other employment qualifications. However, it appears that he stopped working in January 2016, which was the last time he received a pay slip for his work as an electrician.[19]
7. Prior to sentencing, the appellant had diligently applied himself to drug counselling and appeared to be contemplating some kind of residential treatment. However, the sentencing judge considered that the appellant did not have any serious problem with drug addiction. Rather, the sentencing judge stated that the courses the appellant took in this respect were in all probability a cynical exercise to hedge his bets in the event of sentencing.[20]
8. The appellant has a history of criminal offending, although none of it involved dealing in drugs. None of his prior offending was as serious as the offences the subject of this appeal. In 2012, he was convicted of assault. In 2013, there was an offence of possession of cannabis. In 2014, there were two offences of possessing a controlled weapon and one of possessing a prohibited weapon, as well as an offence of stealing. The appellant has also committed some offences under the Road Traffic Act 1974 (WA), including an offence of reckless driving in 2016. All of this offending was punished with fines and, in some cases, spent conviction orders.[21]

1. The sentencing judge identified the following aggravating factors:

(1) The appellant was trafficking cannabis and methylamphetamine in a reasonably sophisticated enterprise for a commercial purpose.[22]

(2) The appellant's activities were highly profitable and, at least in the case of the methylamphetamine, he distributed to users and lower-level suppliers, profiting from the misery of others.[23]

(3) The appellant insisted that Mr Nellis' mother pay for the drugs the police found on Mr Nellis, outlined above at [9]. She was put in the humiliating position of having to borrow that money while her son was in gaol, and then give it to the appellant in a clandestine meeting in a parking lot. At that meeting, Mr Nellis' grandfather told the appellant he was on a pension and that that was all the money he had. The appellant took the mo[24]y anyway.24

(4) There was a substantial amount of cannabis in the self-storage locker, kept for the purpose of commercial distribution. The methylamphetamine found on the appellant was also intended for commercial distribution, allowing for the possibility that a small amount may have been for personal use.[25]

(5) Counts 8 and 9 were offences committed while the appellant was on bail for other drug-trafficking offences.[26]

1. His Honour referred to the following mitigating factors:

(1) The appellant pleaded guilty to the cannabis offences and one of the data access offences at the beginning of the trial. The State case with respect to the cannabis offences was very strong. No lay witnesses would have had to give evidence and no victim would have been required to testify. There were recordings that established the appellant's guilt, including CCTV footage of, and phone references to, the self-storage locker containing the cannabis. The appellant's late pleas did not result in any significant savings of time, and virtually all the same evidence was led as if the appellant had entered pleas of not guilty. The sentencing judge characterised the appellant's guilty pleas as part of 'a strategy of ... confession and avoidance', by which the appellant tried to persuade the jury that he was only involved in the less serious cannabis-related offending. In those unusual circumstances, the sentencing judge applied a discount of 5% pursuant to s 9AA of the Sentencing Act 1995 (WA), which he considered to be generous.[27]

(2) The appellant had achieved a valuable and creditworthy accomplishment in completing his electrical apprenticeship and in working in that field.[28]

1. The sentencing judge considered that the appellant did not take any genuine steps towards rehabilitation. Rather, the courses the appellant completed while on remand were a cynical attempt to mislead the jury and a hedge for the purposes of sentencing. His Honour was not satisfied that the appellant was a person who needed assistance with respect to drug and alcohol issues.[30]
2. The sentencing judge considered that the appellant did not display any remorse.[31] The judge referred to the letters he had received from the appellant and from his mother, concluding that the assertions of remorse in those letters could not be reconciled with the appellant's evidence, and his conduct of his defence, at the trial.[32]
3. The judge observed that, given the appellant's offending history, it could not be said that he had good antecedents.[33]
4. His Honour also had regard to the parity principle. He stated that he had referred to the sentences imposed on Mr Rusec and Mr Nellis, who had both pleaded guilty at relatively early opportunities and were less culpable than the appellant for the offences in common.[34]
5. The sentencing judge noted that deterrence and punishment were the dominant sentencing factors for drug offences of this kind. His Honour considered that a term of imprisonment was the only appropriate disposition and imposed the sentences outlined in the table at [[2 The seriousness of any offence against s 6 of the Misuse of Drugs Act 1981 (WA) must be evaluated by reference to all of the circumstances of the offending. The appellant's universal proposition as to the comparative seriousness of an offence of offering to sell and an offence of selling cannot be accepted. While it is generally of some relevance that an offence of offering to sell does not involve the supply of drugs, 'its relevance will depend upon the reason the offer did not come to fruition'.[51] Indeed, that observation proceeds on the assumption that the offer did not come to fruition. While in an offence of offering to sell, it cannot be assumed that the offer came to fruition in the form of a sale, equally it cannot necessarily be assumed that the offer did not result in a sale. The position may simply be unknown.

Many factors will be relevant in assessing the seriousness of an offence of offering to sell a prohibited drug. Among the factors that will often be relevant are:[52]

(a) The terms of the offer, in particular as to the quantity of a drug, its price, etc.

(b) Whether a particular offer is an isolated one or whether it occurs in the context of an ongoing supply of prohibited drugs.

(c) Whether, and if so, the extent to which the offer is motivated by reasons of commercial gain or greed.

(d) Whether the offeror, at all material times, had the intention to fulfil the offer.

(e) Whether the offeror had the capacity to fulfil the offer to supply.

(f) Whether the offeror attempts to fulfil the order. If not, whether any failure to perform was the result of a decision by the person concerned not to supply or whether it was due to some intervening or extraneous circumstances.

1. Consideration of each of the factors in (a) - (e) reinforces the seriousness of the appellant's offences of offering to sell methylamphetamine. The position in relation to the factor in (f) was unknown; no assumption could be made, one way or the other.
2. At all material times, the maximum penalties for the offence of selling or supplying methylamphetamine and the offence of offering to sell or supply methylamphetamine were identical.
3. The appellant's offending in relation to the cannabis charges was also serious. It is sufficient, on that point, to refer to the decision and observations of this court in Nguyen v The State of Western Australia.[53]
4. The appellant's submissions emphasised various features of his personal circumstances and the mitigating factors to which those circumstances gave rise.[54] As we have said, and as the sentencing judge observed,[55] matters personal to an offender are subsidiary considerations in the sentencing of offenders for serious drug offences. Giving full weight to the appellant's personal circumstances, including his youth at the time of the offending, and taking into account the following features of the appellant's offending, the appellant's total effective sentence bears a proper relationship to his overall criminality, in all the circumstances.
5. First, the appellant's offending included offences with the following maximum penalties. These substantial maximum penalties are one of the yardsticks against which the question of totality is to be evaluated. His three offences involving methylamphetamine carried, at the relevant time, a maximum penalty of imprisonment for 25 years, a fine of $100,000, or both.[56] His five offences involving cannabis carried a maximum penalty of imprisonment for 10 years, a fine of $20,000, or both.[57] The maximum penalty for his offence of possessing property reasonably suspected of being unlawfully obtained was imprisonment for 7 years.[58] The maximum penalty for his two offences of, without reasonable excuse, not obeying a data access order was imprisonment for 5 years.[59]
6. Secondly, the appellant's offending involved a reasonably sophisticated commercial enterprise supplying both methylamphetamine and cannabis for substantial profit.[60] The appellant supplied both users and lower-level suppliers.[61]
7. Thirdly, his offending was far from isolated, persisting over several months and reflecting an ongoing enterprise.
8. Fourthly, the appellant's offending was aggravated by the fact that he committed counts 8 and 9 while he was on bail for other drug-dealing offences.[62]
9. Fifthly, the judge was satisfied that the cash found in the appellant's possession was the proceeds of his drug dealing.[63]
10. Sixthly, the appellant committed two offences of unlawfully disobeying a data access order. In our view, those offences rightly attracted a degree of accumulation. The following observations of this court in Chadburne v The State of Western Australia[64] apply to the present case:[65]

Count 5 related to the failure to obey the data access order. The maximum penalty for that offence is 5 years' imprisonment. Cumulacy of this sentence was called for in order to avoid the result that a person apprehended in the course of committing serious offences might refuse to comply with an order that will produce evidence of the offending without any practical adverse consequence if the offences can be proven by other means. The experience of this court is that encrypted BlackBerry devices are commonly used by those in the illicit drug trade. There is a public interest in ensuring that offenders cannot frustrate the exercise of the statutory power to require access to data with impunity. Considerations of general and personal deterrence justified the imposition of a cumulative sentence in this case.

1. Seventhly, on his most serious offences, those involving methylamphetamine, the appellant did not have the mitigating benefit of a plea of guilty. Further, on the offences to which he pleaded guilty, his discount under s 9AA was only 5%.
2. In our view, having regard to all relevant sentencing principles, and to the overall criminality involved in the appellant's offending as a whole, including the features mentioned in [45] - [50] above, the total effective sentence of 6 years 10 months' imprisonment bears a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to all the circumstances of the case, including those referable to the appellant personally, and the contrary argument does not have a reasonable prospect of succeeding.
3. For these reasons, we would not grant leave in respect of the sole ground of appeal.

1. For the above reasons, we would make the following orders:
   1. Leave to appeal on the ground of appeal is refused.
   2. The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate/Orderly to the Honourable Justice Beech

[42] Appellant's case [24], citing Barnes v The State of Western Australia [2004] WASCA 258 [15].

[43] Carlucci v The State of Western Australia [2019] WASCA 37 [39].

[44] See the cases referred to in footnote 20 of Carlucci.

[45] See, for example, Bellissimo (1996) 84 A Crim R 465; Cartwright v The State of Western Australia [2010] WASCA 4; Tran v The State of Western Australia [2016] WASCA 37; Towler v The State of Western Australia [2018] WASCA 141. Indeed, in Moreton v The State of Western Australia [2011] WASCA 258, this court upheld a sentence of 5 years for an offence involving a quantity of 27.3 g of methylamphetamine. McLure P described this sentence as 'high', but found that it was not manifestly excessive.

[49] Tirkot v The State of Western Australia [2018] WASCA 41.

[51] Bahn v The State of Western Australia [2008] WASCA 40 [38].

[52] The State of Western Australia v Doyle [2017] WASCA 207 [32], quoting Vu v The Queen [2006] NSWCCA 188 [89].

[53] Nguyen v The State of Western Australia [2017] WASCA 195.

[54] See [32] - [33] above.

[56] Misuse of Drugs Act 1981 (WA), s 34(1)(a).

[57] Misuse of Drugs Act, s 34(2)(a).

[59] Criminal Investigation Act 2006 (WA), s 61(2).

[64] Chadburne v The State of Western Australia [2017] WASCA 216.

[65] Chadburne [69]. See also Doyle [42].