Criminal law - Appeal against sentence - Attempted possession of MDMA with intent to sell or supply - 2,339 fake ecstasy tablets - Possession of methylamphetamine with intent to sell or supply - Appellant convicted after trial - Total effective sentence of 6 years' imprisonment - Leave to appeal refused

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(1), s 34(1)(a)

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

Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152

Coleski v The State of Western Australia [2008] WASCA 260

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

Koncurat v The State of Western Australia [2010] WASCA 184

Ly v The Queen [2007] NSWCCA 28

McKeagg v The Queen [2006] WASCA 26; (2006) 162 A Crim R 51

Moody v French [2008] WASCA 67; (2008) 36 WAR 393

MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149

Quach v The Queen [1999] WASCA 210

R v Baldock [2010] WASCA 170; (2010) 243 FLR 120

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

The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302

The State of Western Australia v Tran [2008] WASCA 183

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

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

2 BUSS JA: The appellant was charged on indictment with three offences.

3 Count 1 alleged that on 9 December 2009, at Peppermint Grove, the appellant had in her possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act). Count 2 alleged that, also on 9 December 2009, at Peppermint Grove, the appellant had in her possession a prohibited drug, namely MDMA, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act. Count 3 alleged that, also on 9 December 2009, at Peppermint Grove, the appellant attempted to possess a prohibited drug, namely MDMA, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the Act.

4 On 16 December 2010, the appellant was convicted, after a trial in the District Court before Sweeney DCJ and a jury, of counts 1 and 3. The appellant was also convicted of simple possession, on her plea of guilty entered on the first day of the trial, in relation to the MDMA the subject of count 2. The State accepted this plea in full satisfaction of count 2.

5 The trial judge imposed sentences of immediate imprisonment, as follows:

6 Her Honour ordered that the sentences for counts 1 and 2 be served wholly concurrently with each other and with the sentence for count 3. The total effective sentence was therefore 6 years' imprisonment. The sentences were backdated to commence on 16 December 2010, being the date on which the appellant was taken into custody for the offences. A parole eligibility order was made.

7 The appellant has applied to this court for leave to appeal against sentence.

The facts and circumstances of the offending

8 The trial judge, in her sentencing remarks, recounted the facts and circumstances of the offending and made a number of findings of fact.

9 On 9 December 2009, at about 10.00 pm, police executed a search warrant at the appellant's family home in Peppermint Grove. The appellant lived at the address with her sister and two brothers. Her parents spent extended periods overseas as a result of her father's work.

10 The police asked the appellant whether there were any illegal drugs on the premises. She told them that she had some methylamphetamine and some pills.

11 The police located, with the appellant's assistance, a small plastic bag in her bedroom. The bag contained methylamphetamine. The appellant said that she was merely holding the drug for someone else. She admitted using some of the drug based on her belief that the person in question would not object. The police also located a set of electronic scales. The appellant said that she had weighed the methylamphetamine in the plastic bag because she wanted to know how much of the drug she had used in case the owner of the drug wanted her to pay for it. When the methylamphetamine in the plastic bag was analysed it was found to weigh 14.9 g and to have a purity of about 20%. This drug formed the basis of count 1.

12 The appellant told the police that she had two green pills and 10 other pills in a 'Bulgari box' in her bedroom. These pills contained MDMA (ecstasy). They formed the basis of count 2.

13 However, when the police examined the 'Bulgari box' they found, in addition, a very large quantity of pills and a set of rubber gloves. The appellant said that she had no knowledge of the gloves and had forgotten about the very large quantity of pills. She told the police that these pills had been placed there by someone else. There were 2,339 pills and they weighed, in total, 573 g. The police and the appellant presumed that the pills contained MDMA (ecstasy). However, when the pills were analysed it was found that they contained only caffeine and paracetamol. These pills formed the basis of count 3.

14 During their search of the home in Peppermint Grove, the police also found 'tick-lists'. These documents revealed the carrying on of a substantial business in drug dealing. The appellant told the police that the lists did not belong to her and that the documents were not in her hand-writing. The State generally accepted these propositions. It appears that the 'tick-lists' had been compiled by the appellant's boyfriend, Dean Cackett. When questioned by the police, the appellant did, however, demonstrate some knowledge as to the price at which methylamphetamine could be sold. During their search the police also found other electronic scales and a quantity of MSM, being a known cutting agent. The cutting agent has little or nothing to do with pills in that they are unlikely to be cut down. The police also found quantities of empty clipseal bags in the appellant's bedroom.

15 At trial, the State relied on, amongst other evidence, a series of SMS messages sent or received by the appellant on her boyfriend's mobile telephone. The telephone was used by the appellant and, at times, by her boyfriend.

16 The appellant's defence at trial was that she was merely an unwilling bystander. Her boyfriend was a drug user and had a substantial drug debt. He dealt in drugs in order to reduce his debt. It appears to have been common ground at trial that the boyfriend's supplier was a man called Ben Woodcock. The appellant contended that she was not present when the drugs in question were delivered to her family home in Peppermint Grove, but that she was asleep. Later, when she was told about the drugs, she was angry that the drugs had been foisted upon her. According to the appellant, the drugs had been placed in her bedroom without her consent. She had no intention of doing anything with the drugs, had no intention at any time to exercise control over them and, in consequence, did not have possession of them. Plainly, the jury, by its verdict, rejected her defence.

17 The trial judge said it was apparent from all of the evidence that the appellant's boyfriend was in the business of dealing in drugs for money, and that the appellant was a willing partner in this enterprise. Her Honour explained:

I consider it then a compelling fact that the mobile phone which he [the boyfriend] clearly used to conduct drug transactions was left in your care when he worked up at the mines. It's also very clear that people who he was dealing with, including the person called Matt [Lee], simply dealt interchangeably with the two of you, as though you were a double act. I consider that the SMSes reveal that you were in fact jointly and willingly dealing in drugs with your boyfriend in return for money. I consider that to be the only reasonable inference to be drawn from those various SMSes, and I'm satisfied beyond a reasonable doubt that you were engaged in the business of being a drug dealer.

I should make it clear to you, you are not being sentenced for anything that you have not been charged with. The relevance of these SMSes, which relate to the period both before the tablets came into your possession and after is to cast light on the true relationship between you and the 2,300-odd pills found in your possession. I find that at that time in your life, you were a willing partner in your boyfriend's efforts to make money to clear his debt, and that necessitated dealing in drugs. You may not have been happy about it, but I'm satisfied you were willingly involved (ts 593 - 594).

18 The trial judge accepted, however, that the appellant was motivated by a desire to assist her boyfriend to repay his drug debt, rather than by a desire to make money and live the 'high life' (ts 594).

19 Her Honour was satisfied that the appellant and her boyfriend 'as a couple' supplied drugs to Matt Lee (ts 594). Mr Lee reported regularly to the appellant about a trip he was planning to undertake to the south of the State. This proposed trip was related to drug dealing. Her Honour found that the appellant's boyfriend would not have left the mobile telephone with her, and facilitated contact between her and Mr Lee, unless she was his trusted business associate (ts 595).

20 The trial judge was satisfied that the appellant placed pressure on Mr Lee to ensure that a particular drug transaction proposed to be undertaken during Mr Lee's trip to the south of the State actually occurred (ts 595). Her Honour was also satisfied that the appellant was expecting to receive money from several drug transactions being conducted by Mr Lee (ts 595). Her Honour said:

I'm satisfied beyond a reasonable doubt you were involved in drug transactions which were dependent upon the presence of Woodcock, and you were also anxiously waiting on money to be dropped off to you (ts 595 - 596).

21 A little later in her sentencing remarks, the trial judge said:

I'm satisfied beyond a reasonable doubt that between you, Dean, and Matt and perhaps other associates who were acquaintances of Matt, you were trying to move a substantial quantity of the drugs and were hoping to then be able to give money to Woodcock to send him back east a happy man, both giving him money for the drugs, and also reducing the debt that your boyfriend owed him (ts 597).

22 Her Honour rejected the appellant's case at trial that she was unwilling to have anything to do with the drugs in question, and was merely hoping that Mr Woodcock would come and retrieve them. Her Honour found that there was a joint arrangement between the appellant, her boyfriend, Mr Lee and Mr Woodcock to distribute the drugs (ts 599). She elaborated:

I am satisfied beyond a reasonable doubt that your intent to sell or supply those drugs went beyond an intention to supply them back to Woodcock, although I find that if he turned up wanting some, he could take them at will because he too was trying to sell them.

It follows then that while the jury could have been satisfied of your guilt purely on the basis that you were planning to return the drugs to their original owner, I'm satisfied beyond a reasonable doubt that in fact your involvement with these drugs was at a higher level, and that you were involved in a joint enterprise with Woodcock, and your boyfriend Dean, to move these pills as quickly as possible, and that you were enlisting Matt potentially to assist in that process by finding customers (ts 601).

23 The appellant was aged 26 years at the time of the offending and was 27 when sentenced.

24 The appellant had no relevant prior criminal record. The trial judge found that she was in essence of good character. She came from a supportive family.

25 The appellant had a privileged background. She went to the best schools and then completed a Bachelor of Commerce degree at university. Although the appellant had a privileged background, the trial judge noted that there were periods in the appellant's life where she 'can't have seen very much of [her] parents' (ts 601). This does not, however, appear to have been a conscious issue for the appellant.

26 The appellant has nearly completed a Master's degree in Human Resources Management at university. Since 2006, she has been employed in the human resources area, in senior and responsible positions, for a number of companies. Written references were produced at the sentencing hearing to the effect that the appellant was of excellent character and competence in the workplace.

27 The trial judge noted that the appellant had endeavoured to make the best of the difficult situation she faced. After being remanded in custody upon her conviction, the appellant had become involved in a peer support group in prison.

28 The appellant had experimented with cannabis and ecstasy, and had used methylamphetamine very occasionally from the age of 24 or 25. She admitted to the police that she had sometimes sold ecstasy tablets to her friends in small quantities, namely two or three tablets. However, the appellant has never been addicted to any illicit drugs and she does not appear to have a personal substance abuse issue.

29 The information before her Honour included a pre-sentence report dated 9 February 2010 [sic: 2011] and a psychological report dated 8 February 2011. According to the author of the psychological report, Ms Roxanne Buktenica, the appellant has a tendency to present herself in a favourable light. This is consistent with her Honour's impression of the appellant when she gave evidence at trial. Ms Buktenica noted that the appellant had recently ended the relationship with her boyfriend. She also noted that the appellant '[continues] to externalise blame for her offending and [takes] no responsibility for her behaviour'. In the psychological report, Ms Buktenica said:

[The appellant] continually claimed she had protected her [boyfriend] and portrayed herself as the victim. Her only explanation for why she would take responsibility for her [boyfriend] was because she 'loved him' and because she never thought she would be found guilty. Her difficulties acknowledging any weaknesses and her complete denial of the offences make assessment of factors that contributed to her behaviour difficult (4).

30 Her Honour was of the view that there was little evidence, as yet, of the appellant having genuine insight into her offending behaviour.

31 The trial judge found, nevertheless, that the appellant was unlikely to reoffend. The offences in question arose out of a very self-destructive relationship with her boyfriend. Upon her release, the appellant was likely to have significant family support to facilitate her re-integration into the community.

32 When the police attended on 9 December 2009 to execute the search warrant, the appellant was physically cooperative (that is, she did not obstruct them or behave aggressively) and she made some admissions of significance even though she was untruthful in other respects.

33 The trial judge said that the need for specific deterrence, in sentencing the appellant, was perhaps less pronounced than the need for general deterrence, but it was not an irrelevant consideration. The appellant had admitted using methylamphetamine, selling ecstasy tablets in small quantities and was prepared to commit very serious offences to assist her boyfriend in extricating himself from financial difficulty.

34 Her Honour accepted, in relation to count 3, that the potential impact upon the community was significantly less than it would have been if the pills had been genuine ecstasy. Her Honour decided some leniency could be extended to the appellant as a result of the pills not being genuine ecstasy. However, the essence of the appellant's criminality was reflected in her belief that the pills were prohibited drugs and her willingness to deal in them with that knowledge.

35 The proposed ground of appeal alleges, in essence, that the individual sentence of 6 years' imprisonment for count 3 was manifestly excessive and that this individual sentence resulted in a total effective sentence that infringed the first limb of the totality principle.

36 The appellant filed written submissions and made supplementary oral submissions at the hearing.

37 The appellant referred to numerous cases involving drug dealing. She emphasised various factors in her own case which, in her submission, reduced her culpability or mitigated her offending. For example, the appellant mentioned:

(a) she had not been motivated by greed but by a wish to assist her boyfriend;

(b) the trial judge accepted that she may have been surprised by the large quantity of pills, the subject of count 3, that were delivered to her home (ts 600);

(c) her Honour found that the content of the SMS messages was consistent with perhaps a growing awareness by the appellant that the pills, the subject of count 3, were not of a high quality (ts 607);

(d) as the pills, the subject of count 3, did not contain any MDMA, they could not cause any physical harm;

(e) when the police arrived at her home on 9 December 2009, she protected her boyfriend, but was generally cooperative with them;

(f) the 'tick-lists' were in her boyfriend's handwriting;

(g) she offended as a result of a very self-destructive relationship with her boyfriend;

(h) her relationship with her boyfriend had ended; and

(i) she was unlikely to reoffend, she was successful and responsible in other aspects of her life, and she had excellent prospects of rehabilitation.

38 The appellant submitted that, after having proper regard to comparable sentencing decisions, the fact that count 3 related to an attempt and not a completed offence, the facts and circumstances of the offending generally and her personal circumstances, the sentence for count 3 was manifestly excessive and, also, resulted in a total effective sentence that was disproportionate to her overall criminality.

The merits of the proposed ground of appeal

39 A ground of appeal which asserts that a sentence is manifestly excessive asserts the existence of an inferred error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

40 A complaint that a sentencing judge has infringed the totality principle also involves an allegation of inferred error. 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, 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).

41 The severity or leniency of an individual sentence 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 [2010] WASCA 9, where Owen JA (McLure P & Pullin JA agreeing) said:

[G]enerally 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. A heavy individual sentence, for example, may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. On the other hand, a relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is excessive [40].

42 The maximum penalty for the offence of possession of a prohibited drug with intent to sell or supply it to another, contrary s 6(1)(a) of the Act, is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the Act.

43 Since the enactment of the Misuse of Drugs Amendment Act 2004 (WA), this maximum penalty has also applied to the offence of attempting to possess a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the Act. Previously, the maximum penalty for this offence had been 12 years 6 months' imprisonment or a fine of $50,000 or both.

44 In McKeagg v The Queen [2006] WASCA 26; (2006) 162 A Crim R 51, it was suggested that the 'conventional approach' is to treat an attempt as being less serious than a completed offence, notwithstanding that the Parliament has enacted that the maximum available penalty for an attempt is identical to the maximum available penalty for the completed offence. See the reasons of Roberts-Smith JA [21] and Murray AJA (Pullin JA agreeing) [55].

45 However, the culpability of an offender (including an offender who has been convicted of an attempt as distinct from the completed offence, including an attempt to possess a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the Act), and the extent to which he or she should be punished, must be determined by reference to all the facts and circumstances of the particular offending and the offender. For example, ordinarily there will be no material difference in culpability between an attempt and a completed offence involving drug dealing where the intervention of law enforcement agencies to replace a prohibited drug with an inert substance prevents the commission of the completed offence.

46 The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. See Bellissimo v The Queen (1996) 84 A Crim R 465, 471. 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. See Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [67] - [70]; Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [50]; Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [52]. The degree of purity is often regarded as significant. See The State of Western Australia v Tran [2008] WASCA 183 [9]. Matters personal to an offender will almost always be given reduced weight. See Bellissimo, (469); Tulloh [12], [43], [46].

47 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. See The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302, where Steytler P (McLure & Miller JJA agreeing) said [19]:

As to customary sentencing standards, caution is needed when trying to determine the level of severity of a particular sentence by comparison with those imposed in other cases. That is because there will inevitably be differences in the circumstances of offenders and offences: Tulloh [46] (McLure J, Murray J concurring); Ziino v The State of Western Australia [2007] WASCA 222; (2007) 177 A Crim R 297 [25] (Owen JA, Wheeler & Miller JJA concurring). However, it is helpful to determine whether a general range of sentences can be discerned for like offences by reviewing similar cases, in an attempt to achieve consistency in sentencing: Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 [12] (McLure JA); Ziino [25] (Owen JA, Wheeler & Miller JJA concurring).

48 Sentencing ranges can provide only general guidance. See Coleski v The State of Western Australia [2008] WASCA 260 [16]. The guidance afforded by comparable cases is flexible rather than rigid. See Quach v The Queen [1999] WASCA 210 [27].

49 The mere fact that a sentence is outside the range of other sentences imposed for similar offences does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. See Ly v The Queen [2007] NSWCCA 28 [20]; R v Baldock [2010] WASCA 170; (2010) 243 FLR 120 [147].

50 In Higgins, Steytler P (McLure & Miller JJA agreeing) held, after evaluating expert and other evidence as to the deleterious effects of MDMA compared with other prohibited drugs, that the evidence (which he accepted) supported the proposition that there is no basis for any significant distinction, for sentencing purposes, between MDMA on the one hand and other prohibited drugs (such as methylamphetamine, amphetamine, heroin and cocaine) on the other [121].

51 The range of sentences that have been imposed for possession of methylamphetamine or MDMA, with intent to sell or supply, were reviewed in Tulloh; Higgins; The State of Western Australia v Atherton [2009] WASCA 148; Koncurat v The State of Western Australia [2010] WASCA 184; MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149. It is unnecessary to reproduce the reviews carried out in those decisions. I have considered the comparable cases that were reviewed in Tulloh, Higgins, Atherton, Koncurat and MXP. I have also perused the other cases relied on by the appellant.

52 In the present case, the critical issue is whether the total effective sentence of 6 years' imprisonment (the sentences for counts 1 and 2 having been made wholly concurrent with each other and with the sentence for count 3) offends the first limb of the totality principle.

53 The trial judge gave careful consideration to the objective seriousness of the appellant's offending and the mitigating circumstances.

54 Those aspects which properly characterise the appellant's offending as serious include:

(a) the appellant had possession of a substantial quantity of methylamphetamine, being 14.9 g with a purity of about 20% (count 1);

(b) the purity of the methylamphetamine exceeded the average street purity and in consequence the drug was able to be diluted, before sale, to increase its volume;

(c) the appellant had possession of a very significant quantity of pills (namely, 2,339 pills having a total weight of 573 g) which she believed contained MDMA (or ecstasy) (count 3);

(d) the appellant and her boyfriend, and other associates, had entered into a joint arrangement to distribute the pills for money;

(e) the appellant's connection with the drugs was not merely as a user; and

(f) the appellant was actively involved in her boyfriend's drug dealing business as a trusted partner.

55 The appellant did not have the benefit of the mitigation that a plea of guilty on counts 1 and 3 would have brought, and it could not be said that she was remorseful (as distinct from expressing regret) for her offending. She portrayed herself as a victim and did not accept responsibility for her criminal behaviour. Fast-track pleas of guilty, and pleas of guilty at the first opportunity, in this State ordinarily attract a reduction in sentence of somewhere between 20% and 35%, depending on the circumstances. See Moody v French [2008] WASCA 67; (2008) 36 WAR 393 [37]. If the appellant had pleaded guilty at the first opportunity and had shown real remorse, the total effective sentence of 6 years' imprisonment would probably have been discounted to a term of about 4 years 3 months.

56 The trial judge noted, correctly, that some leniency could be extended to the appellant as a result of the pills not being genuine ecstasy. Plainly, the potential impact upon the community was significantly less than it would have been if the pills had been genuine. However, as her Honour noted, the essence of the appellant's criminality was reflected in her belief that the pills were prohibited drugs and her willingness to deal in them with that knowledge.

57 The trial judge observed, correctly, that specific deterrence was not a significant sentencing factor in the present case, but it was not irrelevant. Also, her Honour observed, correctly, that general deterrence was important.

58 It is true that the appellant had generally favourable personal antecedents, was otherwise of good character and had excellent prospects of rehabilitation, but it is well-established by the case law that matters personal to an offender who has dealt or trafficked in dangerous drugs of addiction are almost always subsidiary considerations in the sentencing process. This general sentencing principle is also applicable to an attempt to deal or traffic in a dangerous drug of addiction, including an attempt of the kind engaged in by the appellant in relation to count 3.

59 Although the individual sentence of 6 years' imprisonment for count 3 was high, it was not unreasonable or plainly unjust. Further, as Owen JA noted in Giglia [40], a heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to other counts. In the present case, the trial judge made the individual sentences for count 1 (2 years for possession, with intent to sell or supply, of 14.9 g of methylamphetamine having a purity of about 20%) and count 2 (3 months for simple possession of 12 MDMA tablets) wholly concurrent with each other and with the individual sentence for count 3.

60 In my opinion, the total effective sentence of 6 years' imprisonment (with 4 years to be served before eligibility for parole) was a just and appropriate measure of the appellant's total criminality after taking into account the maximum available penalties, the seriousness of the offences (in particular, the seriousness of counts 1 and 3), the mitigating factors and the comparable cases.

61 The proposed ground of appeal is without merit. The appellant does not have a reasonable prospect of establishing inferred error by the trial judge. I would refuse leave to appeal, and dismiss the appeal.