Court of Appeal (WA)|2014-10-28|Before: Lure P, Buss JA, Mazza JA

NELL -v- THE QUEEN [2014] WASCA 193 (28 October 2014)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : NELL -v- THE QUEEN [2014] WASCA 193

Bond v The State of Western Australia [2011] WASCA 123

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

Iyoha v The Queen [2011] WASCA 46

Kitis v The State of Western Australia [2013] WASCA 34

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

Lam v The Queen [2014] WASCA 114

Mousavi v The Queen [2014] WASCA 174

Neumann v The State of Western Australia [2013] WASCA 70

Penney v The State of Western Australia [2011] WASCA 71

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

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

Ruvinovski v The State of Western Australia [2013] WASCA 204

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

The State of Western Australia v Fleming [2010] WASCA 162

1 McLURE P: This is an appeal against sentence. On 6 November 2013 the appellant entered pleas of guilty to the following offences:

(1) On 29 May 2012 at Maylands ... [the appellant] had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to section 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (count 1).

(4) On 13 June 2012 at Perth International Airport ... [the appellant] imported a substance ... being a border controlled drug, namely methylamphetamine and the quantity imported being a marketable quantity, contrary to subsection 307.2(1) of the Criminal Code (Cth) (count 4).

(5) On 17 June 2012 at Perth ... [the appellant] trafficked in a substance ... being a controlled drug, namely methylamphetamine, contrary to subsection 302.4(1) of the Criminal Code (Cth) (count 5).

2 Counts 2 and 3, on the same indictment as counts 1, 4 and 5, were discontinued on 6 November 2013.

3 On 8 January 2014 the appellant was sentenced by Keen DCJ as follows:

- Count 1 - imprisonment for 6 years, to be eligible for parole after serving 4 years, backdated to commence on 17 June 2012;

- Count 4 - imprisonment for 8 years with a non-parole period of 6 years, cumulative on the non-parole period of count 1, commencing on 16 June 2016; and

- Count 5 - imprisonment for 4 years with a non-parole period of 2 ½ years, concurrent with count 4.

4 Thus, the appellant's total effective sentence was 12 years' imprisonment with a non-parole period of 10 years. There is one ground of appeal. The appellant claims, in effect, that the total effective sentence breaches the first limb of the totality principle.

5 There was a trial of issues on 15 November 2013. The sentencing judge delivered written reasons for his factual findings: R v Nell [2014] WADC 1.

6 In relation to count 1, the appellant was overseas when his residence was searched by police on 29 and 30 May 2012. A total of 242.67 g of methylamphetamine of between 5.2% and 56% purity was seized. Of that amount, 0.75 g was for personal use. The bulk of the drug was packaged in 12 clipseal bags each containing approximately a half-ounce of between 39% and 56% purity. Police also found indicia of sale and supply.

7 In relation to count 4, on 13 June 2012 the appellant was stopped and searched at Perth International Airport on his return to Australia from Thailand. He was found in possession of a number of bottles of what appeared to be shampoo and skin lotion. Although three bottles returned positive presumptive tests for methylamphetamine, the appellant was released without charge. Later analysis confirmed that a bottle labelled 'Rainforest Shampoo' contained 383.2 g of methylamphetamine at 26.3% purity; a bottle labelled 'Dior Hydralife 1' contained 200.2 g of methylamphetamine at 6.1% purity; and a bottle labelled 'Dior Hydralife 2' contained 211.2 g of methylamphetamine at 26.6% purity. The total weight was 794.6 g, of which 169 g was pure methylamphetamine.

8 In relation to count 5, on 17 June 2012 the appellant's residence was again searched by police. He was caught in the process of crystallising methylamphetamine from its liquid form. A bottle labelled acetone was found to contain 280.3 g of methylamphetamine at 19.6% purity and a plate with crystalline residue contained 27.5 g of the drug at 7.8% purity. The total pure weight of methylamphetamine was 57 g. Other items consistent with the extraction of methylamphetamine were found at the premises including, among other things, an empty 'Dior Hydralife Serum' bottle with traces of methylamphetamine.

9 The sentencing judge rejected the appellant's evidence at the trial of issues that he was an aider in the offences the subject of counts 1 and 5. The sentencing judge found that the appellant was the principal offender in relation to both counts 1 and 5. He also found that the appellant had the knowledge and means to extract the drug the subject of count 4 from its liquid form and that is what he intended to do with the liquid, had it not been seized by the authorities. The sentencing judge found the appellant was in the business of importing, extracting and selling the drugs; it was a commercial enterprise and the appellant was a mid-level drug dealer.

10 The appellant's pleas of guilty were very late. At the commencement of his trial on 4 November 2013, the appellant pleaded not guilty to all counts. Although the jury was empanelled, the trial did not proceed on that day. On 6 November 2013, when re-arraigned, the appellant pleaded guilty to counts 1, 4 and 5. Later there was a trial of issues. The sentencing judge allowed a reduction in the appellant's head sentence for the State offence of 5%. He made a similar reduction for the Commonwealth offences.

11 The appellant was aged 36 at the time of sentencing. He had been a drug user since the age of 17. The appellant had a number of traffic and motoring offences, a summary conviction in 1998 for possession of drugs with intent to sell or supply and two subsequent convictions for possession of a prohibited drug.

12 This court can only intervene if the sentencing judge made an express or implied material error of fact or law. There is no challenge to the individual sentences, all of which are within the sound discretionary range.

13 A breach of the totality principle depends upon establishing an implied error from the total sentence. The first limb of the totality principle is that the total 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. The second limb is that the court should not impose a 'crushing' sentence, being a sentence which results in the destruction of any reasonable expectation of a useful life after release: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [25].

14 In considering the first limb of the totality principle, regard is had to the standards of sentencing customarily imposed for the type of offence the offender has committed. This exercise is undertaken to ensure broad consistency, not numerical equivalence, in the sentencing of offenders.

15 The challenge is confined to the total sentence. There is no separate challenge to the non-parole periods for the Commonwealth offences. As to which, see Lam v The Queen [2014] WASCA 114.

16 The appellant relies on a number of cases for his claim that the total sentence breaches the first limb of the totality principle. They are Kitis v The State of Western Australia [2013] WASCA 34; Bond v The State of Western Australia [2011] WASCA 123; Penney v The State of Western Australia [2011] WASCA 71; The State of Western Australia v Fleming

[2010] WASCA 162; Neumann v The State of Western Australia [2013] WASCA 70; and Ruvinovski v The State of Western Australia [2013] WASCA 204. All of the cases involve State offences.

17 Other relevant cases involving State offences include Lai v The State of Western Australia [2012] WASCA 181; Tanner v The State of Western Australia [2013] WASCA 142; Pham v The State of Western Australia [2011] WASCA 244; and Galbraith v The State of Western Australia [2011] WASCA 70.

18 Regard must also be had to sentences customarily imposed for the relevant Commonwealth offences. The respondent provided a table of appellate cases involving the importation, or attempted possession, of methylamphetamine. Of particular relevance for comparison purposes are Iyoha v The Queen [2011] WASCA 46; R v Ng [2012] WASCA 180; and Mousavi v The Queen [2014] WASCA 174.

19 When regard is had to all relevant sentencing variables, I am satisfied that the total sentence is broadly consistent with sentences imposed in comparable cases. The appellant was the principal offender in a commercial enterprise involving the importation of large quantities of methylamphetamine into Australia and then extracting and selling the drug. Over a period of 20 days the appellant committed three offences involving the importation, possession with intent or trafficking of just over 1.3 kg of methylamphetamine at purities ranging between 5.2% and 56%. There were no significant mitigating factors save for very late pleas of guilty. Both personal and general deterrence were very weighty sentencing considerations. Although the total sentence is towards the higher end of the range, it does not offend the totality principle.

Bond v The State of Western Australia

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (45 paragraphs)

NELL -v- THE QUEEN [2014] WASCA 193 (28 October 2014)

Parties

Legislation Cited (1)