Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

File Number : IND [X] of 2016 & IND [Y] of 2017

Criminal law - Appeal against sentence - Appellant convicted, on his pleas of guilty, of two counts of dealing in methylamphetamine and one count of dealing in MDA - Total effective sentence of 5 years 3 months' imprisonment - Totality

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a)

Barnes v The State of Western Australia [2014] WASCA 49

Barton v The State of Western Australia [2016] WASCA 196

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

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

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

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

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

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

Dao v The State of Western Australia [2007] WASCA 237

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Fernandes v The State of Western Australia [2009] WASCA 227

Formica v The State of Western Australia [2013] WASCA 237

Gaskell v The State of Western Australia [2018] WASCA 8

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

Greenfield v The State of Western Australia [2019] WASCA 29

Harvey v The State of Western Australia [2015] WASCA 146

JM v The State of Western Australia [2015] WASCA 40

Karakuyu v The State of Western Australia [2012] WASCA 75

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

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

Lum v The State of Western Australia [2016] WASCA 145

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

Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605

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

Pedersen v The State of Western Australia [2010] WASCA 175

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

Sabri v The State of Western Australia [2012] WASCA 71

Sakhie v The State of Western Australia [2017] WASCA 103

The State of Western Australia v Charles [2016] WASCA 108

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

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

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

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

Vagh v The State of Western Australia [2007] WASCA 17

Wickham v The State of Western Australia [2010] WASCA 73

Wilson v The State of Western Australia [2010] WASCA 82

Zheng v The State of Western Australia [2016] WASCA 224

1. The appellant has applied for leave to appeal against sentence.
2. In February 2018, the appellant was convicted, on his pleas of guilty before Herron DCJ, of one count in indictment X of 2016 (indictment X) and two counts in indictment Y of 2017 (indictment Y).
3. The count in indictment X alleged that in August 2015, at South Perth, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
4. Count 1 in indictment Y alleged that in March 2016, at Cannington, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply to another, contrary to s 6(1)(a) of the MD Act.
5. Count 2 in indictment Y alleged that on the same date and at the same place as in count 1, the appellant had in his possession a prohibited drug, namely MDA, with intent to sell or supply to another, contrary to s 6(1)(a) of the MD Act.
6. In February 2018, the sentencing judge imposed individual terms of immediate imprisonment as follows:

1. His Honour ordered that the sentence for count 1 in indictment Y be served cumulatively upon the sentence for the count in indictment X and that the sentence for count 2 in indictment Y be served concurrently. The total effective sentence was therefore 5 years 3 months' imprisonment. The total effective sentence was backdated to 27 May 2016. A parole eligibility order was made.
2. The sole ground of appeal alleges that the sentencing judge erred in the exercise of his discretion 'by failing to give sufficient discount for [the matters referred to in the schedule to these reasons (the Schedule)]' and therefore imposed a total effective sentence that infringed the first limb of the totality principle.
3. We would dismiss the appeal. Our reasons are as follows.

The sentencing judge's sentencing remarks including the facts and circumstances of the offending and the appellant's personal circumstances

1. The facts and circumstances of the offending are not in dispute and were summarised by the sentencing judge as follows.
2. As to the count in indictment X, in August 2015 the appellant was driving a motor vehicle. Police stopped the vehicle in South Perth. The appellant had hidden a sock in the front of his pants. The police officers found the sock. It contained six clipseal bags. The bags contained a total of 24.87 g of methylamphetamine. The purity of most of the drug was between 40% and 44%.
3. As to counts 1 and 2 in indictment Y, in March 2017 (that is, one year and seven months after the offence the subject of indictment X), police saw the appellant in Cannington. He was carrying a black bag. As police officers approached, the appellant attempted to hide the bag in a planter box. He then fled. After a chase, the police officers apprehended the appellant. The contents of the black bag included a clipseal bag containing 27.4 g of methylamphetamine with a purity of 63% and another clipseal bag containing 20 tablets of MDA weighing 3.6 g with a purity of 9%. The black bag also contained drug paraphernalia including 97 g of the cutting agent MSM.
4. At the sentencing hearing before his Honour, the appellant admitted that he had been dealing in prohibited drugs for commercial purposes. He used the revenue he derived from drug-dealing to finance his personal drug use and to repay his drug debts.
5. The sentencing judge found that there were aggravating factors as follows:

(a) The quantities of methylamphetamine were valuable. The value was 'in the thousands of dollars' (ts 252). It was likely that the methylamphetamine would have been 'bulked up ... thereby increasing the profit to be made from the sale of [the drug]' (ts 252).

(b) The extent of the appellant's drug dealing was indicated by the drug paraphernalia found by the police. The paraphernalia included digital scales, empty clipseal bags, MSM and a 'tick list' on the appellant's mobile telephone.

(c) The appellant was actively involved in the sale or supply of methylamphetamine on a wide and regular basis. The three offences in question were not isolated incidents. They were committed as part of an ongoing course of conduct involving the sale or supply of methylamphetamine and MDA.

(d) The appellant's offending was for commercial purposes. He engaged in the offending partly to fund his own drug use and partly to repay his drug debts. He was a heavy drug user with an entrenched addiction.

(e) The appellant had ready access to significant quantities of methylamphetamine. He was a user/dealer in the upper mid-level of the drug distribution chain.

(f) The offences the subject of indictment Y were aggravated in that when he committed those offences the appellant was on bail for the offence the subject of indictment X.

1. His Honour found that there were mitigating factors as follows:

(a) The pleas of guilty. His Honour afforded the appellant a discount, pursuant to s 9AA of the Sentencing Act 1995 (WA), of 20% in respect of the count in indictment X and 25% in respect of each of the counts in indictment Y.

(c) The existence of 'some remorse' for the offending as shown by the appellant's pleas of guilty and 'from submissions made by counsel' (ts 254).

The Schedule will be the subject of a confidentiality order. It will not be published except to the appellant and the State and their respective legal representatives.

1. There was very little mitigation available to the appellant apart from those factors. As the sentencing judge observed, the appellant was aged 42 at the time of sentencing, he had 'a worrying history of drug offending' (ts 254), 'an appalling road traffic record' (ts 255) and 'an entrenched or a longstanding disregard for the law' (ts 255). His Honour found that the appellant was at a significant risk of reoffending in that, soon after being released from prison, he had resorted to methylamphetamine use and committed the offence the subject of the count in indictment X. The sentencing outcome had to reflect the need for personal deterrence, the protection of the community and general deterrence.
2. The appellant had a reasonably good childhood. However, his father died when the appellant was aged nine. The appellant's mother then cared for him and his siblings. The appellant was not in a relationship at the time of sentencing. He has no dependants.
3. The appellant performed well at school. He completed Year 12. The appellant undertook some tertiary studies and completed a financial services certificate. When he has not been in prison, the appellant has worked regularly.
4. His Honour noted that the appellant has a substantial prior criminal record for drug, dishonesty and traffic offences. Significantly, he was convicted:

(a) in September 1998, of cultivating cannabis with intent to sell or supply (18 months' imprisonment suspended for 2 years);

(b) in April 2000, of cultivating cannabis (6 months' immediate imprisonment);

(c) in October 2009, of possession of methylamphetamine with intent to sell or supply (2 years 2 months' immediate imprisonment); and

(d) in May 2011, of possession of MDMA with intent to sell or supply (4 years' immediate imprisonment and declared to be a drug trafficker).

1. The information before the sentencing judge included a pre-sentence report dated 21 June 2017. The author of the report made these comments and recommendations:

[The appellant] has an extensive history of offending behaviour. His past and current offending are intrinsically linked to substance use, impulsivity, attitude toward authority and lack of consequential thinking.

[The appellant] was unable to set any goals or articulate how he would make changes in his lifestyle. He shifted blame to the authorities indicating that 'the punishment does not fit the crime'. He was pre-contemplative in wanting to make any positive changes when interventions were discussed indicating that he was aware that he would receive a term of imprisonment.

In order to reduce future risk of re-offending, [the appellant] is likely to benefit from engaging in the Departmental Cognitive Brief Intervention Program to address offending behaviour with a view towards moving to making positive changes and lead a prosocial lifestyle. Additionally, engagement in residential rehabilitation and thereafter psychoeducational substance use counselling may also assist in developing and strengthening relapse prevention. These forms of interventions are available within a community setting. In the event he is sentenced to imprisonment, [the appellant] could undertake and complete the Pathways programme to address illicit substance use.

1. The appellant told the author of the pre-sentence report that he was a 'risk-taker'. He also told the author that he was 'currently in good psychological and physical health and [was] not subject to any medication or treatment regimes'.
2. His Honour referred to written references from people who spoke well of the appellant. His Honour noted that the appellant retained the support of his family.

The ground of appeal: counsel for the appellant's submissions

1. Counsel for the appellant submitted that the sentencing judge had erred in the exercise of his discretion by failing to give a 'sufficient discount' for the matters referred to in the Schedule and, consequently, his Honour had imposed a total effective sentence that infringed the first limb of the totality principle.
2. At the hearing of the appeal, counsel for the appellant accepted that:

(a) his Honour was not bound to state the amount of the discount he afforded the appellant for the matters of mitigation referred to in the Schedule (appeal ts 7);

(b) his Honour had read the information before him in relation to the matters referred to in the Schedule, but counsel asserted that his Honour had failed to give those matters any or adequate weight (appeal ts 8, 12, 14); and

(c) the complaint in the ground of appeal raised a question of implied or inferred error based on the sentencing outcome (appeal ts 11).

The ground of appeal: counsel for the State's submissions

1. Counsel for the State submitted that the matters referred to in the Schedule were of limited significance and it was therefore open to the sentencing judge to accord them limited weight. It was argued that the appellant had not demonstrated that the total effective sentence of 5 years 3 months' imprisonment was disproportionate to the overall offending or otherwise unreasonable or plainly unjust having regard to all relevant circumstances and all relevant sentencing factors.

1. At the material time, the maximum penalty for the offence of possession of a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, was 25 years' imprisonment or a fine of $100,000 or both (s 34(1)(a) of the MD Act).
2. The first limb of the totality principle 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 (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
3. The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual sentences. See Roffey v The State of Western Australia.[1] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia;[2] Gaskell v The State of Western Australia.[3]
4. The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. 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 generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
5. When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
6. The discretion conferred on sentencing judges is, of course, of fundamental importance. This court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[4]
7. We have had regard to the sentencing dispositions in a range of cases including Dann v The State of Western Australia;[5] Bosworth v The State of Western Australia;[6] Dao v The State of Western Australia;[7] Cant v The State of Western Australia;[8] Cartwright v The State of Western Australia;[9] Lynch v The State of Western Australia;[10] Moreton v The State of Western Australia;[11] Karakuyu v The State of Western Australia;[12] Chu v The State of Western Australia;[13] The State of Western Australia v Littlefair;[14] Formica v The State of Western Australia;[15] The State of Western Australia v Hunter;[16] Le v The State of Western Australia;[17] Bui v The State of Western Australia;[18] JM v The State of Western Australia;[19] Tran v The State of Western Australia;[20] Barton v The State of Western Australia;[21] Lum v The State of Western Australia;[22] Sakhie v The State of Western Australia;[23] Towler v The State of Western Australia;[24] and Greenfield v The State of Western Australia;[25] and the cases cited in those decisions. We have also had regard to other cases cited by counsel for the appellant and counsel for the State including Fernandes v The State of Western Australia;[26] Wickham v The State of Western Australia; ; ; and .
8. It is unnecessary to reproduce the facts and circumstances of the prior cases we have considered or the sentencing outcomes. There are some comparable features between some of the prior cases and the present case, but there are also distinguishing features. It is sufficient to note that the total effective sentence imposed on the appellant is broadly consistent with the sentencing pattern for offences of the kind he committed, having regard to the comparable and distinguishing features between the prior cases and the appellant's case.
9. The appellant's overall offending was very serious. It involved the possession, with intent to sell or supply, of 24.87 g of methylamphetamine with a significant degree of purity; the possession, with intent to sell or supply, of an additional 27.4 g of methylamphetamine with a high degree of purity on another occasion; and the possession, with intent with sell or supply, of 20 tablets of MDA weighing 3.6 g. The appellant was a dealer, as well as a user, in the upper mid-level of the drug distribution chain. The offending was for commercial purposes. Dealers in prohibited drugs who are addicted to the drugs are not treated more leniently merely because the motive for their dealing is the need for money to finance their addiction or to reduce drug debts. See Chu.[31] Although the appellant was to be punished only for the offences in question, his status as a drug dealer indicated that those offences did not involve isolated transactions.
10. The sentencing judge found, and was entitled to find, that there were a number of factors which aggravated the appellant's overall offending. In particular, the egregiousness of the offences the subject of indictment Y was aggravated in that, when he committed those offences, the appellant was on bail for the offence the subject of indictment X. See Wilson v The State of Western Australia;[32] Moreton; Sabri v The State of Western Australia;[33] Harvey v The State of Western Australia.[34]
11. The appellant was aged 42 at the time of sentencing. He was not youthful or inexperienced for sentencing purposes.
12. The appellant had a prior criminal record including numerous prior convictions for drug dealing. The appellant's prior criminal record, and any failure of previous sentences to achieve the purpose for which they were imposed, did not, of course, aggravate the offending in question. However, his record indicated that the current offences were not aberrations by a person who was otherwise of good character and they underscored the importance of personal deterrence as a sentencing factor.
13. The appellant admitted to the author of the pre-sentence report that he was a 'risk-taker'. Although the sentencing judge found that there was 'some remorse', the pre-sentence report indicated that the appellant was merely 'pre-contemplative' in wanting to make positive changes to his life. His Honour found that the appellant was at a significant risk of reoffending.
14. We have previously referred to his Honour's findings in relation to mitigation. We deal in detail in the Schedule with the matters of mitigation referred to in the Schedule. We merely note here that his Honour was not bound to state the discount he had afforded the appellant for those matters and that a complaint about the attribution of weight to a relevant consideration does not ordinarily give rise to an express error that enlivens an appellate court's jurisdiction to intervene in an appeal against a judge's discretionary decision or judgment.
15. In our opinion, after taking into account:

(b) the very serious nature of the offending, viewed as a whole, including the unchallenged aggravating factors;

(c) the total effective sentences imposed in previous cases with at least some features comparable to the appellant's overall offending;

(d) the place which the appellant's overall offending occupies on the scale of seriousness of offences of this kind;

(f) the mitigating factors including the matters of mitigation dealt with in detail in the Schedule; and

the total effective sentence of 5 years 3 months' imprisonment was not unreasonable or plainly unjust.

1. The total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the appellant personally, and the total effective sentences imposed in reasonably comparable cases.
2. We are satisfied that error by his Honour in the exercise of his discretion should not be inferred, based on the first limb of the totality principle, from the sentencing outcome.
3. The ground of appeal fails.

1. We would grant leave to appeal. However, the ground of appeal fails and the appeal must therefore be dismissed.

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

[1] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).

[2] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).

[3] Gaskell v The State of Western Australia [2018] WASCA 8 [54] - [59] (Buss P), [151] (Mazza & Beech JJA).

[4] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).

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

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

[7] Dao v The State of Western Australia [2007] WASCA 237.

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

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

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

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

[12] Karakuyu v The State of Western Australia [2012] WASCA 75.

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

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

[15] Formica v The State of Western Australia [2013] WASCA 237.

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

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

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

[19] JM v The State of Western Australia [2015] WASCA 40.

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

[21] Barton v The State of Western Australia [2016] WASCA 196.

[22] Lum v The State of Western Australia [2016] WASCA 145.

[23] Sakhie v The State of Western Australia [2017] WASCA 103.

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

[25] Greenfield v The State of Western Australia [2019] WASCA 29.

[26] Fernandes v The State of Western Australia [2009] WASCA 227.

[27] Wickham v The State of Western Australia [2010] WASCA 73.

[28] Barnes v The State of Western Australia [2014] WASCA 49.

[29] The State of Western Australia v Charles [2016] WASCA 108.

[30] Zheng v The State of Western Australia [2016] WASCA 224.

[31] Chu v The State of Western Australia [2012] WASCA 135 [33] (Mazza JA; Buss JA agreeing).

[32] Wilson v The State of Western Australia [2010] WASCA 82.

[33] Sabri v The State of Western Australia [2012] WASCA 71.

[34] Harvey v The State of Western Australia [2015] WASCA 146.