Criminal law - Leave to appeal against sentence - Drug offences - Total effective sentence of 4 years' imprisonment - Whether total sentence infringed the first limb of the totality principle

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

Bellissimo v The Queen (1996) 84 A Crim 494

Burke v The State of Western Australia [2007] WASCA 210

Laws v The State of Western Australia [2007] WASCA 95

Leonard v The Queen (Unreported, WASCA, Library No 990152, 29 March 1999)

Olomi v The State of Western Australia [2004] WASCA 304

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

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

The State of Western Australia v Bruce [2004] WASCA 226

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

Vodanovic v The Queen (Unreported, WASC, Library No 960056, 9 February 1996)

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

1 REASONS OF THE COURT: This is an application for leave to appeal against sentence. The appellant was convicted after trial in the District Court of two counts of selling a prohibited drug, namely N,N-dimethylamphetamine to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA).

2 On 18 December 2015, the appellant was sentenced to 2 years' immediate imprisonment for each offence to be served cumulatively. Thus the total effective sentence imposed was 4 years' immediate imprisonment. The sentencing judge made a parole eligibility order and backdated the sentence to commence on 15 December 2015.

3 The appellant makes no complaint about the individual sentences. His sole ground of appeal alleges that the total effective sentence infringed the first limb of the totality principle.

4 The facts as found by the sentencing judge are as follows.

5 The appellant was recruited by another person, whom we shall refer to as A, to assist in the sale of prohibited drugs.

6 As to count 1, on 18 March 2011, the appellant sold 28 g of N,N-dimethylamphetamine with a purity of 77% to an undercover police officer for $14,500. As to count 2, on 12 April 2011, the appellant sold a further 28 g of the drug with an identical purity to the same purchaser, this time for $14,000.

7 On both occasions, the appellant transported the drug to the appointed meeting place in his motor vehicle. With respect to count 1, the appellant indicated to the purchaser the presence of the drug in the vehicle. The purchaser then went to the vehicle, left the money and took possession of the drugs. With respect to count 2, the purchaser took the drugs from the vehicle and handed A the money. On this occasion, the appellant discussed the price to be paid with the purchaser and made reference to the possibility of further quantities of the drug being made available.

8 The appellant was sentenced on the basis that, while he was not the 'prime mover' of the drugs, he was a willing participant who acted for the purpose of obtaining 'easy money' (sentencing ts 2).

9 At the time of sentencing the appellant was 59 years of age. His Honour found that he had been gainfully employed for a number of years but had more recently fallen on hard times (sentencing ts 4). In the period between the commission of the offences and his conviction (almost five years), the appellant had not been involved in any criminal activity which, in his Honour's opinion, spoke well of his prospects for rehabilitation.

10 A was sentenced before the appellant. A pleaded guilty to the same offences for which the appellant was charged, along with other offences. While the sentencing judge in the present case considered the question of parity, he decided that it was not a relevant sentencing factor. The appellant does not challenge this finding.

11 As the appellant makes no allegation of express error, it is unnecessary to refer in detail to the sentencing remarks. His Honour took into account the appellant's age and his lack of a prior criminal record. However, his Honour noted that the predominant sentencing considerations were just punishment, retribution and deterrence (sentencing ts 5). After imposing a sentence of 2 years' immediate imprisonment on each count, his Honour said:

Insofar as the sentences are concerned, each offence involved the potential distribution of different quantities of drugs within the community. It seems to me that, bearing in mind that the sentence I impose must adequately represent the criminality, the sentences ought to be served cumulatively (sentencing ts 5).

General principles applicable to this appeal

12 The general principles applicable to this appeal were accurately described in Wilson v The State of Western Australia [2010] WASCA 82 [2]. There is no need to repeat them here.

13 There are two limbs to the totality principle, but this appeal only seeks to engage the first limb. The first limb of the totality principle 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: Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26].

14 Counsel for the appellant submitted that, in light of his favourable personal circumstances, the total effective sentence that was imposed was too long.

15 The maximum penalty for the offences committed by the appellant was 25 years' imprisonment or a fine of $100,000 or both.

16 The general sentencing principles applicable to offences of the type committed by the appellant are well established. They were referred to in The State of Western Australia v Atherton [2009] WASCA 148 [125]:

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 solely 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 a very limited consideration, but they are not completely irrelevant. See Bellissimo, (469); Tulloh [12], [43], [46].

17 The appellant's overall offending was serious. On two occasions, he sold substantial quantities of high-grade N,N-dimethylamphetamine for considerable sums of money. Although he was not the instigator of the offences, he was a willing participant and his primary motive was commercial gain. His willingness was demonstrated in count 2 by his negotiation with the purchaser on the price to be paid for the drug and his efforts to attract future sales.

18 It is relevant for this court to consider comparable cases for the purpose of ensuring broad consistency in the sentencing of offenders. However, a sentencing range for comparable offences is merely one of the factors to be taken into account. The range of sentences imposed in other cases does not fix the range of a sound exercise of a sentencing discretion in a particular case. At the end of the day, each case must be determined on its own facts and circumstances.

19 In the appellant's written submissions, he cited a number of cases said to be comparable, namely Bellissimo v The Queen (1996) 84 A Crim 494; Vodanovic v The Queen (Unreported, WASC, Library No 960056, 9 February 1996); Leonard v The Queen (Unreported, WASCA, Library No 990152, 29 March 1999); The State of Western Australia v Bruce [2004] WASCA 226; Olomi v The State of Western Australia [2004] WASCA 304; Laws v The State of Western Australia [2007] WASCA 95; Burke v The State of Western Australia [2007] WASCA 210 and Tran v The State of Western Australia [2016] WASCA 37. It is unnecessary to set out the facts and circumstances of each of these cases. None of them assist the appellant.

20 In our opinion, the total effective sentence of 4 years' immediate imprisonment was within the range of a sound exercise of his Honour's sentencing discretion. The total effective sentence did not infringe the first limb of the totality principle. It was, in our view, a proper reflection of the appellant's overall criminality, taking into account all relevant factors including those personal to the appellant. The proposed ground of appeal has no reasonable prospect of succeeding. We would refuse leave to appeal, with the effect that the appeal is taken to have been dismissed.