Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Possession of methamphetamine with intent to sell or supply - Possession of heroin with intent to sell or supply - Principle of totality - Sentencing principles

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

Basilio v The State of Western Australia [2010] WASCA 202

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

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

Hoang v The State of Western Australia [2015] WASCA 130

Kleindyk v The Queen [2016] WASCA 123

Lear v The State of Western Australia [2015] WASCA 90

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

R v Kilic [2016] HCA 48; (2016) 91 ALJR 131

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

Sathitpittayayudh v The State of Western Australia [2015] WASCA 152

The State of Western Australia v Baldini [2015] WASCA 39

The State of Western Australia v Johnson [2010] WASCA 187

1 On 28 May 2015, police conducted a search of a house in Balcatta, and found the appellant in a lounge room with 1.85 g of methamphetamine and a glass pipe. Police also searched a locked bedroom and found a total of about 437 g of methamphetamine, 201 g of heroin and $153,475 in cash.

2 The appellant received a total effective sentence of 9 years' imprisonment in respect of the following offences against the Misuse of Drugs Act 1981 (WA) (Drugs Act) and the Criminal Code, to which he pleaded guilty:

1. two counts of possessing a prohibited drug (the methamphetamine and heroin found in the bedroom) with intent to sell or supply to another;
2. one count of possessing property (the cash) reasonably suspected of being unlawfully obtained;
3. one count of being in possession of a prohibited drug (the methamphetamine initially found with the appellant); and
4. one count of being in possession of a smoking implement (that was initially found with the appellant).

3 The appellant has been granted leave to appeal against his sentence on the ground that the total effective sentence infringes the first limb of the totality principle. For the following reasons, the appeal must be dismissed.

4 The sentencing judge found the following facts as to the circumstances of the appellant's offending.

5 On 28 May 2015, police conducted a search of a house in Balcatta. Upon entering the house, police found the appellant sitting at a table in the lounge room. On the table was a clipseal bag containing approximately 1.85 g of methamphetamine and a glass smoking implement which contained traces of methamphetamine. The appellant admitted that he had used the glass smoking implement to smoke some of the methamphetamine.

6 Police found the following items inside a bedroom of the house, which was the only room within the house fitted with an internal lock:

1. 365 g of methamphetamine in 13 ball-shaped packages, each weighing 28 g (between 77 - 79% purity) wrapped in plastic bags and hidden under the mattress of the bed.
2. 4.5 g of methamphetamine (78% purity) in a green shirt in a freestanding cupboard.
3. 35.1 g of methamphetamine (80% purity) in a jacket in the freestanding cupboard.
4. 27.4 g of methamphetamine (75% purity) in a jacket hanging in a walk-in robe.
5. 4.68 g of methamphetamine (80% purity) in a glass jar in the walk-in robe.
6. 0.23 g of methamphetamine in a box of disposable gloves found in the walk-in robe.
7. 3.82 g of heroin (69% purity) wrapped in plastic in a shirt found in the freestanding cupboard.
8. 40.6 g of heroin (80% purity) wrapped in black tape in a pair of trousers hanging in the freestanding cupboard.
9. 0.35 g of heroin in a pot in the walk-in robe.
10. 156.7 g of heroin (74% purity) wrapped in tape in a drill case located in the walk-in robe.
11. $153,475 in cash in suitcases located in the walk-in robe.

Three sets of electronic scales, empty clipseal bags, artificial sweetener, sucrose, and elastic bands were also found in the bedroom.

7 The appellant initially denied that he occupied the bedroom in which these items were located. However, the following connections between the appellant and the bedroom were established:

1. A copy of the appellant's Australian citizenship certificate and a vehicle transfer paper from 2012 were found in a desk in the bedroom.
2. The appellant's jacket and mobile phone were found inside a robe in the bedroom.
3. The appellant's DNA was found on:

(a) a water bottle on the floor next to the bed in the bedroom.

(b) the inner wrappings of one of the 13 ball-shaped packages of methamphetamine.

(c) a rubber band wrapped around a package in the walk-in robe which contained 143 g of artificial sweetener.

1. The appellant was in possession of a set of keys to the house, one of which was a key that opened the internal lock to the bedroom door.

8 After noting the appellant's choice not to provide information as to the identities of the others associated with the house, the sentencing judge made the following findings about the appellant's involvement in the enterprise:

Further, by your plea of guilty you have accepted you had knowledge of the drugs and money and were in possession of them with the intention to sell or supply them. Given, in particular, the location of your DNA on the inner wrappings of one [of] the ball-shaped packages, I am satisfied that you were more than a mere caretaker with limited knowledge of what was at the house.

The specific role you played in this enterprise is more difficult to ascertain. However, it is clear that at the very least you were a trusted member of this organisation given the quality and quantity of the drugs left in your control. Your trusted position with this organisation is confirmed by the significant amount of money that was also left with you.

This was clearly a large scale drug enterprise whose impact on the community was to be very significant. Your motivation for participating in this enterprise is not known. Your precise role in the hierarchy of this drug distribution is also not known, but it is enough for the purposes of sentencing to appreciate that you were a trusted member of this organisation close to the source (ts 57 - 58).

Sentencing judge's approach Appellant's personal circumstances

9 Having set out her findings about the circumstances of the appellant's offending, the sentencing judge noted that the appellant had been married twice and had six adult children, two of whom lived in Australia. She found that the appellant had limited education, and had worked in unskilled jobs until he came to Australia in 1984. The appellant worked as a baker in Sydney, but was unemployed for the seven months prior to his arrest.

10 The sentencing judge noted that it was said that the appellant began using methamphetamine at the age of 60, though the circumstances in which he started to use it were unclear. The appellant's use of methamphetamine increased to daily use when he became unemployed.

11 The appellant had no prior criminal history. The sentencing judge said that she would take into account the fact that, until the age of 62, the appellant had lived a law-abiding life, raised a family and had been a contributing member of the Australian community.

12 The sentencing judge found that the appellant did not speak or write English, despite his many years in Australia. His education in Vietnam was limited to year 7, and he was barely literate in Vietnamese. A psychological report suggested that the appellant was of very low intellect. The sentencing judge observed:

It is accepted that this cannot be put forward as a mitigating factor absent proper test results. What is said, though, is that given your limited education and circumstances, is that you are a simple soul. I take this to mean that you did not closely analyse or consider your actions, particularly in light of your drug addiction. This may go some way to explaining your participation in this drug enterprise.

Further, your lack of English will limit your capacity to engage socially with other prisoners. Though it is accepted there are Vietnamese speakers within the prison, it is suggested that generational issues may further limit social engagement. The extent to which this matter can be taken into account is limited but it is a matter I will bear in mind when determining the ultimate sentence.

Of more significance will be your capacity to engage in programs and/or counselling within the prison, given your lack of English. In this regard I note that it is submitted that you endeavoured to participate in a drug rehabilitation course whilst in custody. You tried this using the help of other Vietnamese prisoners. This was not a success. This does, however, show that you have recognised that you have a drug problem and are willing to address it if arrangements can be made to facilitate your participation in the future (ts 59 - 60).

13 The sentencing judge found that the appellant was at a low risk of re-offending and had remorse. She noted his plea of guilty at the first available opportunity, and said that she would give him the maximum 25% discount available under s 9AA of the Sentencing Act 2005 (WA).

14 The appellant suffered a number of medical conditions which were being adequately treated within the custodial setting. As to the appellant's rehabilitation within the prison setting, the sentencing judge observed:

The pre-sentence report writer acknowledges that your inability to speak English is an impediment to your inclusion in prison-based programs.

The effectiveness of the use of an interpreter in individual counselling sessions is also said to be negligible, as many counsellors would not offer counselling on this basis. It would seem the only option available to you to address your issues is to attempt to locate a Vietnamese speaking counsellor. I would encourage the prison authorities to pursue this (ts 61).

15 The sentencing judge observed that general and personal deterrence are the principal sentencing considerations in cases of this kind. As a consequence, mitigating circumstances that are personal to appellant, such as age and character, have correspondingly less weight, although they are not irrelevant.

16 The sentencing judge said that trafficking in drugs results in significant adverse consequences for drug users and the community as a whole. She said that drug use and abuse is a very significant problem in our community and:

it accounts for an enormous amount of distress and misery, not only for drug users and addicts, but their families and friends, and it also causes distress to the wider community because it underlies the commission of many crimes, including personal violence and dishonesty.

It places a strain on community resources to repair the damage done, not only physically and emotionally to individuals, but also to property which is damaged or stolen. It involves the expenditure of police time in investigating and pursuing matters in the courts. It is a blight on society and you must accept that you have played a real role in this destructive behaviour. A sentence that marks the community's condemnation of this high level of drug distribution is required (ts 61).

17 The sentencing judge also accepted that she was obliged to consider the question of totality, ensuring that the total effective sentence bore a proper relationship to the overall criminality involved in all of the offences viewed in their entirety having regard to all relevant circumstances, including those referable to the appellant personally. She also recognised that the total effective sentence imposed should not constitute a crushing sentence, that is, it should not destroy any reasonable expectation of a useful life after release from custody. As well as ordering that certain sentences be served concurrently with others, the sentencing judge indicated that she had reduced the sentence for the charge of possessing heroin with intent on totality grounds.

18 The sentencing judge then imposed the following sentences:

Possession of a prohibited drug (methamphetamine) with intent

Possession of a prohibited drug (heroin) with intent

19 The appellant was made eligible for release on parole, and the sentence was backdated to 28 May 2015 to take into account his time spent in custody on remand.

20 The appellant appeals against the above sentences on the sole ground that the sentencing judge erred in imposing an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances including those referable to the appellant personally.

21 The totality principle was summarised by McLure JA, with whom Steytler P and Miller JA agreed, in Roffey v The State of Western Australia:[1]

The legal principles relevant to the disposition of this appeal are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law.

The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must 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: Woods v The Queen (1994) 14 WAR 341.

The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).

The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).

22 The appellant participated in a commercial drug dealing operation involving a significant quantity of methamphetamine, heroin and cash. The purity of the drugs was high. As the appellant's counsel noted, there was no evidence of the appellant's role in that operation. The State did not suggest that there was anything in the appellant's role that aggravated the offending and the appellant ultimately did not submit that the role the appellant played in the commission of the offence constituted a mitigating factor.

23 However, it was apparent that the appellant was a trusted member of the organisation, being left in charge of a significant quantity of cash and prohibited drugs. The forensic evidence noted above also indicated that he was involved in handling the prohibited drugs, and it can be inferred that he must have known the nature of the operation and the quantity of drugs involved. His involvement extended beyond a 'mere' house-sitter or courier who had only limited connection with the persons controlling the operation and little knowledge of the amount of drugs involved. This was clearly a serious example of offences against s 6(1)(a) of the Drugs Act, albeit not in the most serious category.

24 The parties referred to a number of decisions of this court, including four cases in which sentences of between 9 years and 10 years 6 months' imprisonment were imposed or upheld by this court for offences against s 6(1) of the Drugs Act involving between 300 g and 500g of methamphetamine, often where other related offences were involved, and the offender pleaded guilty.[2]

25 In assessing whether an aggregate sentence is disproportionate to the overall offending it is necessary to have regard to sentences imposed in comparable cases. This is so that a judgment can be made as to whether the sentence in question is broadly in line with sentences customarily imposed. However, in making such comparisons the significant variations in relevant sentencing factors must always be borne in mind. Ultimately, each case must depend upon its own particular facts and circumstances.[3]

26 The purpose of referring to current sentencing practices is to attempt to achieve consistency in sentencing and in the application of relevant sentencing principles. The requirement to have regard to the sentences imposed in those cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed. Rather the range of sentences imposed in the past may inform a broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle.[4] The consistency which is sought is in the application of relevant legal principles, rather than numerical equivalence.[5]

27 Having regard to all relevant features of the cases cited by the parties, the total effective sentence imposed on the appellant is broadly consistent with the standards of sentencing customarily observed for offences of the present kind.

28 Counsel for the appellant also referred to the personal circumstances of the appellant, emphasising his age,[6] limited education, inability to speak English and his medical conditions. However, counsel recognised that the courts give mitigating personal circumstances less weight when imposing sentences for offences of this type. As McLure P noted in The State of Western Australia v Johnson:[7]

It is the experience of the courts that illicit drugs cause or materially contribute to a very significant proportion of the criminal offences committed in this State, either as a result of users acting under their influence or because of the need to finance or secure a supply of drugs. There are often strong financial incentives to deal in prohibited drugs. Further, significant public resources are devoted to the difficult task of detecting and apprehending persons involved in the supply and distribution of illicit drugs. It is for these reasons that in sentencing for offences under s 6(1) of the Act, significant weight is given to general deterrence with the consequence that mitigating circumstances personal to the offender, including age and good character, are accorded less weight.

29 It has also been observed that matters personal to an offender have a greater impact on the length of the term of imprisonment than on the type of sentence imposed.[8]

30 A significant personal factor relied on by the appellant is his age combined with his inability to speak English, which will result in his social isolation in the prison environment where other Vietnamese speakers are generally much younger prisoners.

31 The appellant's counsel also expressed concern that the appellant's inability to speak English may compromise his ability to participate in courses and counselling in prison. It was submitted that the failure to undertake courses and counselling directed at rehabilitation may reduce the prospects of the appellant being granted parole. If that came to pass, it would be a matter for great concern. The fact that the appellant does not speak any English should not deprive him of an equal opportunity to be considered for parole. Custodial authorities have a responsibility to provide opportunities for rehabilitation to prisoners, and that must include the provision of translation services or, where available, service providers who speak the prisoner's language. If those responsibilities are not discharged, it would not be a proper exercise of the parole authority's discretion to refuse to grant parole to a 70-year-old man, who has been assessed as being of low risk of reoffending, because his language difficulties prevent participation in relevant programs.

32 The appellant's sentence appropriately took into account the difficulties which the appellant's age and language difficulties will present for the appellant in the prison environment.

33 Having regard to all of the above matters, it cannot be concluded that the total effective sentence of 9 years' imprisonment fails to 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 appellant personally.

34 For the above reasons, the appeal must be dismissed.

[1] Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26].

[2] Pham v The State of Western Australia [2011] WASCA 244; Lear v The State of Western Australia [2015] WASCA 90; Hoang v The State of Western Australia [2015] WASCA 130; Sathitpittayayudh v The State of Western Australia [2015] WASCA 152. See also Galbraith v The State of Western Australia [2011] WASCA 70 where the court upheld a sentence of 9 years' imprisonment for possession of a total of 971.6g of methamphetamine with intent to sell or supply to another, which was imposed as part of a total effective sentence of 10 years' imprisonment.

[3] Basilio v The State of Western Australia [2010] WASCA 202 [17].

[4] R v Kilic [2016] HCA 48; (2016) 91 ALJR 131 [22].

[5] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [48] - [49].

[6] 62 years at the time of the offence, 63 years at the time of sentence and 70 when he will first be considered for release on parole.

[7] The State of Western Australia v Johnson [2010] WASCA 187 [17].

[8] The State of Western Australia v Baldini [2015] WASCA 39 [27]; Kleindyk v The Queen [2016] WASCA 123 [6].