Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Possession of MDMA - Whether sentence manifestly excessive - Turns on own facts

Misuse of Drugs Act 1981 (WA)

Birch v The State of Western Australia [2011] WASCA 101

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

Burton v The State of Western Australia [2010] WASCA 192

Guler v The State of Western Australia [2014] WASCA 83

MGM v The State of Western Australia [2012] WASCA 24

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

Pittard v The State of Western Australia [2013] WASCA 126

RP v The State of Western Australia [2010] WASCA 75

Tanner v The State of Western Australia [2013] WASCA 142

2 HALL J: This is an application for leave to appeal against sentence.

3 On 10 March 2014 the appellant was sentenced to a total effective sentence of 2 years and 6 months following her fast-track pleas of guilty to two charges of selling a prohibited drug, namely MDMA, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA). She was sentenced to 12 months imprisonment on the first charge and 2 years 6 months' imprisonment on the second charge, both sentences to be served concurrently.

4 The ground of appeal is that the sentence of 2 years and 6 months was manifestly excessive. The appellant accepts that the sentence imposed on the second charge cannot be looked at in isolation and the totality of the criminal conduct needs to be considered.

5 Between 14 and 15 February 2013 the appellant exchanged text messages and telephone calls with her husband (and co-offender) who was then working at a mine in the North-West of the state. Arrangements were made for the appellant to receive a quantity of MDMA pills at her home address in Marangaroo and to then supply those pills to a third party.

6 On the early evening of 15 February 2013 the appellant, having received 260 pills, supplied them to another person at a cost of $20 each. The total amount received was $5,200. That conduct relates to count 1 on the indictment.

7 Between 1 and 2 March 2013 there were further exchanges of text messages and telephone calls between the appellant and her husband, who was again working in the North-West. Arrangements were made for a further supply of prohibited drugs. The appellant's husband arranged for 1000 MDMA pills to be delivered to the appellant at her home. At about 2.40 pm on 2 March 2013 the appellant, following instructions from her husband, supplied the 1,000 pills to a purchaser for a cost of $17 each. The total amount received on this occasion was $17,000.

8 The appellant was interviewed by police on 19 July 2013. She made some admissions but was evasive in response to some questions. She declined to comment on the text messages when they were put to her.

These included messages on 15 February 2013 in which she confirmed to her husband that she had counted the 260 pills that had been supplied that day. She told police that, notwithstanding that message, she did not count the pills, though she accepted that she had given them to another person.

9 Text messages made on 1 March 2013 were also put to the appellant. These included a message from the appellant to her husband asking if he could organise '1000 things' for a named person. The appellant's husband asked if the other person could wait and the appellant replied that he wanted them that night. The appellant told police that she was not sure that these texts were a reference to 1,000 pills. She declined to comment on whether the pills were dropped off at her house pursuant to arrangements made by her husband. There were also messages that indicated that the appellant was to keep $1,000 of the $17,000 received for the pills on the second occasion and to give the rest to another person.

10 The appellant was 20 years old at the time of the offences. Her husband is two years older than her. They were living at the time in a granny-flat at her parent's home.

11 By the time of sentencing the appellant was aged 21 years. She is the youngest of four children and comes from a close and supportive family. An older brother took his life in the family home three years ago and his death was believed to be related to the use of illicit substances. This was said to have had a particularly devastating effect on the appellant. She told a psychologist that this tragedy caused her to reassess her life and not to be overly concerned with 'little things'.

12 It was submitted on behalf of the appellant that her husband had been a user of drugs and had accumulated a significant debt. He had engaged in dealing in order to discharge his debt and had persuaded the appellant to help him. Threats had been made by the person to whom the debt was owed that the home of the appellant's parents would be 'run through'. At the time the appellant saw no other way of getting rid of the debt other than to assist her husband.

13 The appellant had been in a relationship with her now husband for approximately six years. She claimed to have been initially unaware of the extent of his drug use or the size of his drug debt. She told the author of the pre-sentence report that she had only experimented with 'party drugs' over the past few years. However, in the appellant's written submissions it is stated that both she and her husband had used amphetamines extensively.

14 In addition to the suicide of her brother in 2010 the appellant's mother had also died shortly before the appellant was sentenced. The appellant had lingering guilt regarding this and was concerned that she had caused her mother anxiety prior to her death.

15 When interviewed by a psychologist the appellant said that she had acted as 'the middle man'. She said that she had told her husband that she wanted him to stop selling drugs but had agreed to play this role when he asked her to do so. She could not explain this inconsistency and accepted that she 'was saying one thing but acting another'. The psychologist noted that the appellant at no stage claimed that she was intimidated or threatened by her husband, though she did make comments which suggested that she may not have been confident that their relationship would continue if she challenged his choices and behaviour. The appellant said that she had wanted to believe that she was merely helping her husband and not getting anything out of it herself but had reflected on that and accepted that the lifestyle that his activities afforded may have been a factor that influenced her. She said that the drug debt had since been paid off with funds from family members. She made no attempt to deflect responsibility for her offending onto others and told the psychologist that she was an adult and had chosen to do what she did.

16 The appellant's husband faced additional charges and received a total effective sentence of 5 years imprisonment. That sentence included terms of 18 months and 3 years 6 months' for his involvement in the two offences with which the appellant was charged. He, like the appellant, entered fast track pleas of guilty.

17 There is no suggestion that the sentencing judge made any express error or failed to take into account a relevant factor. Accordingly it is unnecessary to analyse the sentencing remarks in detail.

18 His Honour acknowledged that the appellant had pleaded guilty on the fast-track system and allowed a discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA). He also acknowledged that the appellant's young age was a 'significant mitigating factor'. He referred to the appellant being someone who was immature and had 'poor consequential thinking and poor emotional skills'. Whilst the appellant had been evasive in the police interview, she subsequently co-operated with police and provided information to them and the sentencing judge allowed a further discount of 15% for this co-operation.

19 His Honour said that the appellant's actions were those of a foolish and immature person. He accepted that she was partly driven by blind loyalty to her partner. He noted that she had no prior convictions but said that this was somewhat tempered by her admitted past illegal drug use.

20 A ground of appeal that a sentence is manifestly excessive asserts the existence of an implied error. In determining whether a sentence is manifestly excessive it is necessary to examine it from the perspective of the maximum penalty for the related offence, the standard of sentencing customarily observed with respect of that offence, a place that the criminal conduct occupies and the scale of seriousness of offences of that kind and the personal circumstances of the offender.

21 The maximum penalty for the offence of supplying a prohibited drug contrary to s 6(1)(c) of the Misuse of Drugs Act is a fine of $100,000 or imprisonment for 25 years or both: s 34(1) of the Misuse of Drugs Act.

22 As to the seriousness of this offending, the appellant played a critical role in the sale of significant quantities of MDMA on two separate occasions. The sales were clearly commercial in nature and undertaken to obtain money. Whilst it was suggested that the appellant would not have been involved in these offences but for the actions of her husband, she accepted that she was a willing participant. There was no suggestion that she was coerced or pressured into complying and the text messages show that she was ready to perform the role that her husband gave her. Indeed, on the second occasion the text messages appear to indicate that she was the instigator of the sale. That she may have been partly motivated by a wish to assist her husband in discharging his drug debt does nothing to mitigate the offences.

23 As regards the appellant's personal circumstances, her youth and lack of criminal record were relevant. She had also cooperated with the police, though her initial evasiveness was not consistent with remorse. However, in respect of offences of this nature personal circumstances carry comparatively less weight. General and personal deterrence are the major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction such as MDMA. Matters personal to an offender will almost always be a subsidiary consideration though they are not completely irrelevant: Tanner v The State of Western Australia [2013] WASCA 142, 196 Buss JA with whom Martin CJ and Mazza JA agreed.

24 As regards comparable sentences, the appellant did not refer to any cases which were suggested to be inconsistent with the sentences imposed here. However, I have considered a number of cases which involved possession or sale of MDMA. They include Guler v The State of Western Australia [2014] WASCA 83; [2013] Pittard v The State of Western Australia [2013] WASCA 126; MGM v The State of Western Australia [2012] WASCA 24; Birch v The State of Western Australia [2011] WASCA 101; MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149; Burton v The State of Western Australia [2010] WASCA 192 and Burke v The State of Western Australia [2007] WASCA 210.

25 A further case, RP v The State of Western Australia [2010] WASCA 75, is somewhat similar on the facts. In that case a 20 year old offender with no relevant prior criminal record was convicted after a fast-track plea of guilty of possession of 593 tablets of MDMA within intent to sell or supply. He was also found in possession of $1,450 in cash which he admitted was proceeds from the sale of MDMA. In that case the appellant was characterised as a user and dealer and was seeking to raise money to finance his own habit and to repay a drug debt. He had provided assistance to the police for which he received a reduction in his sentence. He was sentenced to 2 years 10 months' imprisonment on a single count.

26 The total effective sentence imposed in this case is not inconsistent with sentences imposed in comparable cases. The seriousness of the offences entirely justified sentences of imprisonment of the lengths imposed. Emphasis was placed in submissions on the finding that the appellant would likely not have committed the offences if not for the involvement of her husband. However, as the appellant herself recognised, she choose to participate in this drug dealing. It is not to the point that if her husband had been in Perth he may not have needed her assistance. The fact is that she was willing to, and did, render critical assistance on two occasions and thereby facilitated these drug transactions.

27 In my view the ground of appeal has no reasonable prospects of succeeding. Leave to appeal should be refused. I would make the following orders:

1. leave to appeal refused;
2. the appeal is dismissed.