Criminal law - Appeal against sentence - Manifest excess - Totality principle - Turns on own facts

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

Sentencing Act 1995 (WA), s 9AA

Blay v The Queen [2006] WASCA 248; (2006) 205 FLR 414

Cameron v The Queen [2000] WASCA 286

Civello v The State of Western Australia [No 2] [2008] WASCA 163

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

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

Kezkiropoulos v The Queen [2002] WASCA 352

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

Lai v The State of Western Australia [2012] WASCA 181

Monument v The State of Western Australia [2007] WASCA 239

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

R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554

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

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

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

The State of Western Australia v Toothill [2007] WASCA 236

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

3 MAZZA JA: This is an appeal against sentence.

4 On 13 June 2013, the appellant pleaded guilty in the District Court to possession of MDMA with intent to sell or supply it to another (count 1) and possession of methylamphetamine with intent to sell or supply it to another (count 2). Each of these offences were committed on the same day, 16 July 2012, at Redcliffe. Each offence is contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). Count 1 concerned 2,035 MDMA tablets, weighing a total of 509 g with a purity of 18%. Count 2 concerned two bottles of methylamphetamine in liquid form with a total volume of 403 ml and a purity of 80%.

5 On 23 August 2013, the appellant was sentenced to 2 years' imprisonment on count 1 and 6 years' imprisonment on count 2. His Honour ordered that the sentences be served cumulatively. Thus the total effective sentence was 8 years' imprisonment. The appellant was made eligible for parole and the sentence was backdated to commence on 27 May 2013.

6 There are two grounds of appeal. Ground 1 alleges that the total effective sentence infringed the first limb of the totality principle. Ground 2 alleges that the sentence for count 2 was manifestly excessive. Leave to appeal has been granted on ground 1. The question of leave to appeal on ground 2 was referred to the hearing of the appeal.

7 The facts of the offending are not in dispute. As found by his Honour, they are as follows.

8 The appellant is from Sydney. He and two others, Matthew Wayne Sumner and Jeremy Russell Hoban, drove together in a Nissan Navara vehicle from Sydney to Perth. The drugs the subject of counts 1 and 2 were hidden inside the vehicle's bull bar, along with 1.063 kg of the cutting agent MSM.

9 On the morning of 16 July 2012, the appellant and his co-offenders were staying in a hotel at Redcliffe. Police executed a search warrant and found the drugs and MSM in the bull bar.

10 The appellant was interviewed by the police on the afternoon of 16 July 2012. Initially, he told the police that he and the others had come to Western Australia to work for a roofing company (AB 114 - 115). He told the police that he had 'no idea' that there were drugs in the bull bar (AB 133). However, eventually, he admitted that he and the co-offenders drove to Perth, knowing that a quantity of 'eccies' (ecstasy) were in the vehicle (AB 142). He agreed with police that it was their job to get the drugs from Sydney to Perth. The appellant said that he had been promised $5,000 for his efforts and that the plan was that when they got to Perth they were to telephone a contact. As it turned out, two others had already flown to Perth and were staying at the Hyatt hotel. It was to these men that the drugs were to be delivered.

11 The learned sentencing judge made the following unchallenged findings:

1. The appellant knew that he was transporting a large commercial quantity of hard drugs into Western Australia.
2. He believed that the drugs were MDMA, but he was in fact reckless to what drugs they were.
3. The appellant was involved in readying the vehicle for the journey from Sydney to Perth.
4. Although the appellant helped one of the principals reassemble the bull bar, he did not know at that time that drugs had been placed inside it and he did not pack or wrap the drugs.
5. He was recruited by the principal for the operation several days before departing from Sydney.
6. The enterprise in which the appellant was involved was well-organised and planned, having regard to:

(c) the $5,000 reward which had been promised to him;

(d) the sophisticated manner in which the drugs were concealed in the vehicle;

(f) the concoction of a cover story about coming to Western Australia to work for a roofing company.

1. The appellant's involvement was deliberate and 'involved no doubts or second thoughts and there was no error of judgment, no hardship or duress'.
2. The appellant participated in the enterprise with enthusiasm which was 'evident from telephone intercept material'.
3. The appellant was 'a very important participant in the transit of a large quantity of hard drugs over a long distance purely for profit'.

12 The appellant was 28 years of age when the offences were committed. He is a qualified spray painter. He had the benefit of 'very good' references from family friends, community members and employers. He had an irrelevant criminal record in New South Wales and was not a user of illicit substances. His Honour accepted that the offending was out of character. His Honour noted that while on remand the appellant had been a model prisoner.

13 His Honour took into account the following mitigating factors:

1. The appellant's pleas of guilty. His Honour accepted that they were entered at the earliest reasonable opportunity and that the appellant should receive the maximum discount available pursuant to s 9AA of the Sentencing Act 1995 (WA), namely 25%.
2. Although the appellant deliberately lied in his record of interview, he did make some admissions to the police.
3. Any term of imprisonment would be served away from his family and those to whom he was close.

14 His Honour said that although the appellant was not a principal, he was one of the drivers of the Nissan Navara who brought the drugs to Western Australia and thus played a very important role in the transaction. He rejected the submission put on behalf of the appellant that he was at the lowest possible rung of the drug distribution hierarchy. His Honour said that the appellant willingly participated in a very serious hard drug distribution business purely for personal financial gain. As a result, matters personal to him would count for little. His Honour said that, while the risk of reoffending was low (later he said he was satisfied that the appellant would never reoffend), general deterrence, punishment and denunciation were 'very important sentencing considerations'.

15 With respect to count 1, his Honour said he would have imposed 5 years' imprisonment but for totality. To accommodate this factor, his Honour reduced the sentence for count 1 to 2 years' imprisonment. For count 2, his Honour imposed 6 years' imprisonment. His Honour said that the starting point for this offence was 9 years' imprisonment, but he reduced it for 'the mitigating factors'.

16 His Honour decided against imposing concurrent sentences. He had regard to the so-called one transaction rule, but decided that total concurrency would not properly reflect the appellant's overall criminality.

17 His Honour took 'a last look' at the total overall sentence. He said that 'a head sentence of 8 years fits comfortably inside the range for offences of this kind'.

18 The jurisdiction of this court to intervene and resentence the appellant is not enlivened unless the appellant demonstrates error on the part of the learned sentencing judge. The relevant principles are not in any doubt and were described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They do not need to be repeated. In the present case, the appellant does not allege any express error. Both grounds of appeal claim that his Honour has made an implied error. In essence, the appellant alleges that the individual sentence for count 2 and the total effective sentence were unreasonable or plainly unjust.

20 Whether a sentence is manifestly excessive (or inadequate) requires a consideration of the maximum penalty for the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the type committed by the appellant, the standards of sentencing customarily imposed for the offence and the personal circumstances of the offender.

21 The maximum penalty for an offence of possessing a prohibited drug such as methylamphetamine with intent to sell or supply it to another is 25 years' imprisonment or a fine of $100,000 or both: Misuse of Drugs Act s 34(1)(a).

22 The case law in this area establishes that the major sentencing consideration for offences of dealing or trafficking in dangerous drugs of addiction such as methylamphetamine 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: Tanner v The State of Western Australia [2013] WASCA 142 [196] (Buss JA, with whom Martin CJ and Mazza JA agreed).

23 It scarcely needs to be said that methylamphetamine is an extremely dangerous drug of addiction which causes much misery and damage to individuals and the community at large. Here, the appellant was found in possession of a large quantity of high purity methylamphetamine in liquid form. Given its purity, it is very likely that it would have been cut or diluted prior to it reaching the end consumer.

24 It is accepted that the appellant was not the principal offender, but nevertheless he willingly associated himself with a venture that involved transporting dangerous drugs across Australia to Perth. He was involved in the preparation of the vehicle and he knew that secreted in it was a large quantity of drugs. While he was not aware of the precise nature of the drugs, that is not a matter which can afford any mitigation. The appellant was motivated purely by commercial gain. The venture was planned and well-organised. The offence is a serious example of its type and the appellant bears substantial criminal culpability.

25 Although the appellant has good antecedents and poses little or no risk of further similar offending, general deterrence remains a very important sentencing factor. Drug offences of this scale must be deterred in order to protect the community. Those who contemplate involvement in such offending must understand, and the message needs to be reinforced, that if they are convicted of such offences, ordinarily, severe penalties will result.

26 The parties to this appeal referred to a number of cases including Kezkiropoulos v The Queen [2002] WASCA 352; The State of Western Australia v Toothill [2007] WASCA 236; Dao v The State of Western Australia [2007] WASCA 237; Civello v The State of Western Australia [No 2] [2008] WASCA 163; and Tanner.

27 I have read these and other cases, including Pham v The State of Western Australia [2011] WASCA 244 and Lai v The State of Western Australia [2012] WASCA 181.

28 It is unnecessary to set out the facts and sentencing outcomes in these cases, save to observe that Dao is not an apt comparator. The issue in that case was totality and not manifest excess. Further, the quantities of drugs possessed by the appellant in that case were substantially less than the quantities in the present case.

29 The assistance that can be gained from other cases is limited. Historical sentencing outcomes are a yardstick against which to measure a proposed sentence to ensure broad consistency. They do not fix the range of a sound sentencing discretion. Ultimately, each case must be decided upon a consideration of its own facts and circumstances.

30 My reading of the cases reveals that the sentence of 6 years' imprisonment on count 2 was broadly consistent with those authorities.

31 The most significant mitigating factor was his plea of guilty for which he was given the maximum discount under s 9AA of the Sentencing Act. As I have already observed, his personal circumstances were favourable and he does not pose a continuing risk to the community. Nevertheless, these factors carry less weight because of the importance that must be given to general deterrence.

32 Having regard to all of the circumstances of the case, the sentence of 6 years' imprisonment was not unreasonable or plainly unjust. I am unable to infer that his Honour fell into error in the exercise of his sentencing discretion. Ground 2 must fail.

34 The totality principle was explained by McLure JA (as her Honour then was) in the well-known case of Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26].

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).

35 The appellant only alleges an infringement of the first limb of the totality principle.

36 The appellant's submissions in respect of this ground are unclear. The written submissions appear to rely on an argument that the learned sentencing judge should have applied the so-called one transaction rule and ordered that the sentences imposed be served wholly concurrently. In his oral submissions, counsel for the appellant submitted that the total effective sentence was too much, having regard to the appellant's plea of guilty, his lack of knowledge as to the purity of the drugs, his good antecedents and that his involvement in the offence lasted only 'a few days'.

37 The so-called one transaction rule is not a rule at all. It is a handy rule of thumb. It does not have to be applied whenever an offender commits a number of offences which form part of the one transaction. In the context of drug offending, it will not necessarily be the case that an offender who is found in possession of a number of different types of drugs at the one time will receive wholly concurrent sentences. The law with respect to the one transaction rule was described in R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [25] - [28]. What is important is that the punishment imposed upon the appellant reflects the total criminality of what he or she did. Where total concurrency does not properly reflect an offender's total criminality, cumulacy will be justified.

38 The appellant and the respondent cited a number of authorities in relation to this ground, including Cameron v The Queen [2000] WASCA 286; Blay v The Queen [2006] WASCA 248; (2006) 205 FLR 414; Monument v The State of Western Australia [2007] WASCA 239; The State of Western Australia v Atherton [2009] WASCA 148; Koncurat v The State of Western Australia [2010] WASCA 184; Galbraith v The State of Western Australia [2011] WASCA 70 and Pham.

39 In Pham, the appellant brought into Western Australia 498.7 g of methylamphetamine with a purity of between 47 and 52%, and 167 g of heroin with a purity of between 64 and 66%. He was paid $10,000 to bring the drugs into Western Australia. Pham was a 52-year-old man and a first offender. The sentencing judge accepted that his involvement in the offences was a 'one-off' event. He was sentenced to 7 years' imprisonment for the trafficking of the methylamphetamine and 2 years' imprisonment for the heroin offence, with the sentences ordered to be served cumulatively. McLure P undertook a review of the relevant authorities, including a number of the authorities referred to by the parties here. A ground that the total effective sentence breached the first limb of the totality principle failed.

40 I can see nothing in Pham or in the cases cited by the parties which suggests that the total effective sentence imposed was too much.

41 It cannot be overlooked that the appellant possessed and brought into Western Australia a large quantity of two harmful drugs. Totally concurrent sentences would not have reflected the total criminality of what the appellant did. Some accumulation was required. His Honour reduced the sentence he imposed on count 1 very substantially, to a level which, if taken in isolation, would have been inadequate.

42 In my opinion, the total effective sentence of 8 years' imprisonment bore a proper relationship to the overall criminality involved in all of the offences committed by the appellant, viewed in their entirety and having regard to all of the circumstances of the case including those referable to the offender personally. The first limb of the totality principle has not been infringed.

44 Ground 1 has not been made out. Leave to appeal on ground 2 should be refused. It has no reasonable prospects of succeeding. The appeal must be dismissed. The orders I would make are:

1. Leave to appeal on ground 2 is refused.
2. The appeal is dismissed.