Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Drug offences - Supply of MDMA - Totality principle - One transaction rule - Parity principle - Early pleas of guilty

Criminal Appeals Act 2004 (WA), s 27(2)

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

Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49

Colangelo v The State of Western Australia [2004] WASCA 294

Dann v The State of Western Australia [2006] WASCA 254

Dixon v The State of Western Australia [2006] WASCA 255

Fullgrabe v The State of Western Australia [2006] WASCA 138

I (a child) v The State of Western Australia [2006] WASCA 9

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

Nelis v The Queen [2000] WASCA 194

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

Tran v The State of Western Australia [2010] WASCA 38

Tricoli v The State of Western Australia [2011] WASCA 74

Trompler v The State of Western Australia [2008] WASCA 265

Vagh v The State of Western Australia [2007] WASCA 17

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

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

3 The appellant and her co-offenders, Ashley James Belcastro and David Maxwell Hale, were charged by indictment as follows:

(1) On 5 November 2009 at Scarborough Amanda Louise Birch, David Maxwell Hale and Ashley James Belcastro supplied a prohibited drug, namely MDMA, to another.

(2) Between 12 November 2009 and 25 November 2009 at Perth Amanda Louise Birch and David Maxwell Hale conspired together to supply a prohibited drug, namely MDMA, to another.

(3) On 6 October 2009 at Perth Amanda Louise Birch offered to supply a prohibited drug, namely MDMA, to another

(4) On 9 October 2009 at Perth Amanda Louise Birch offered to supply a prohibited drug, namely MDMA, to another.

(5) On 17 October 2009 at Perth Amanda Louise Birch offered to supply a prohibited drug, namely MDMA, to another.

(6) On 20 October 2009 at Perth Amanda Louise Birch offered to supply a prohibited drug, namely MDMA, to another.

(7) On 22 October 2009 at Perth Amanda Louise Birch offered to supply a prohibited drug, namely methylamphetamine, to another.

(8) On 28 October 2009 at Perth Amanda Louise Birch offered to supply a prohibited drug, namely MDMA, to another.

4 On 2 November 2010, the appellant and Messrs Belcastro and Hale entered pleas of guilty to those offences in which they were named.

5 His Honour Fenbury DCJ sentenced the appellant as follows:

6 His Honour ordered that the sentence on count 1 commence on 23 September 2010, the sentence on count 2 commence on 23 September 2012 and the sentence on count 3 commence on 23 September 2013. All of the other sentences were ordered to be served concurrently. The total effective sentence imposed upon the appellant was 8 years' imprisonment. She was made eligible for parole.

7 Mr Belcastro was sentenced on count 1 to 4 years' imprisonment with eligibility for parole.

8 Mr Hale was sentenced to 5 years' imprisonment on count 1, commencing on 23 October 2010, and 4 years' imprisonment on count 2, commencing on 23 October 2012. The total effective sentence imposed upon him was 6 years' imprisonment with eligibility for parole.

9 The appellant seeks leave to appeal on four grounds. Ground 1 alleges that the total effective sentence of 8 years' imprisonment offended the totality principle. Ground 2, as explained in the appellant's written submissions, alleges a breach of the so-called 'one transaction rule'. Ground 3 alleges a breach of the parity principle. Ground 4 complains that his Honour failed to give sufficient discount to the appellant's pleas of guilty.

10 During October 2009, mobile telephone services used by the appellant were monitored by law enforcement authorities. In a number of telephone conversations, the appellant offered to supply prohibited drugs. The appellant was also the subject of covert physical surveillance during November 2009.

11 The facts of the offences in the indictment are as follows.

12 Count 1 - on 5 November 2009, the appellant and Mr Hale attended the home of Mr Belcastro in Scarborough. The appellant and Mr Hale had arranged for Mr Belcastro to hand to another person 1,000 MDMA (ecstasy) tablets weighing 208.9 grams. The person to whom the drugs were supplied handed Mr Belcastro $18,000 in cash. The appellant and Mr Hale each received $1,000. Mr Belcastro received the balance.

13 Count 2 - on 13 November 2009, the appellant met an undercover operative, who asked her to supply him with 4,000 ecstasy tablets. In the days that followed, the appellant spoke with Mr Hale and the two conspired to purchase the drugs through another party. It was planned that the transaction would take place in the same manner as described in count 1. The police intercepted numerous conversations between the appellant and Mr Hale in relation to this transaction. Each of them was arrested on 24 November 2009, before the transaction took place.

14 Count 3 - on 6 October 2009, the appellant offered to supply another with 1,000 ecstasy tablets.

15 Count 4 - on 9 October 2009, the appellant offered to supply another with 40 or 50 ecstasy tablets.

16 Count 5 - on 17 October 2009, the appellant offered to supply another with 400 ecstasy tablets.

17 Count 6 - on 20 October 2009, the appellant offered to supply another with 400 ecstasy tablets.

18 Count 7 - on 22 October 2009, the appellant offered to supply another with 1.75 to 3.5 grams of methylamphetamine.

19 Count 8 - on 28 October 2009, the appellant offered to supply another with 1,000 ecstasy tablets.

20 The appellant was born on 10 October 1980. She was, at the time of her offending, single. However, she had previously been in a relationship and had two children who were, at the time she was sentenced, 4 years and 2 1/2 years of age. Her former partner took the children to New Zealand, without her permission, some time in 2009. It was submitted on her behalf, before Fenbury DCJ, that her offending was motivated by the desire to purchase an airline ticket to New Zealand to locate her children.

21 The pre-sentence report provided to his Honour, dated 15 September 2010, revealed that she had been an intravenous user of methylamphetamine.

22 The author of the report stated that she had 'limited insight into her offending behaviour'. The appellant had a prior criminal history, which features numerous convictions for driving whilst disqualified. Apart from a conviction for possession of cannabis in 1998, she had never been convicted of a drug offence.

23 Mr Hale was born on 18 March 1979. He was, at the time of sentencing, single, without any children. He was a regular user of ecstasy. His criminal history comprised traffic matters; mostly offences for driving whilst disqualified.

24 Mr Belcastro was born on 26 June 1987. He was, at the time of sentencing, a single man. Although he had been a long-term user of illicit drugs and, in particular, ecstasy, he did not view his drug use as problematic. His record was brief and nearly all traffic related.

25 His Honour described the appellant as 'an active drug dealer': ts 49.

26 In relation to count 1, he said that each of the appellant, Mr Hale and Mr Belcastro were equally responsible: ts 48.

27 His Honour briefly set out each offender's antecedents. He noted that the appellant and Mr Hale were mature adults: ts 47. He appeared to give some mitigatory weight to Mr Belcastro's youth. Mr Belcastro was, at the time of his offending, 22 years of age: ts 47. His Honour observed that the case against each offender was 'very powerful'. He expressly took into account the pleas of guilty that each of them had entered, and said that he would treat them as pleas entered 'well before trial': ts 47. His Honour said that the dominant sentencing factor in offences of the type committed by the appellant and her co-offenders was general deterrence.

28 With respect to the appellant, his Honour said that he did not place significant weight on the explanation that she gave for her offending. He acknowledged the point made on behalf of the State that, in any event, the appellant's drug dealing was likely to produce returns that far exceeded the cost of an airfare to New Zealand: ts 49. Implicitly, his Honour considered that the appellant's offending was motivated more by profit. His Honour gave express consideration to the totality principle in relation to both the appellant and Mr Hale: ts 47.

29 An appellate court is not entitled to intervene simply because it might have imposed a different sentence. An appellant must demonstrate that the sentencing judge made an express or implied error. Even if error is demonstrated, the appellate court can only intervene if it is satisfied that a different sentence should have been imposed by the sentencer: Wilson v The State of Western Australia [2010] WASCA 82 [2].

30 There is no need, in this case, to examine in detail the nature of the totality principle. It 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. The second limb is that the court should not impose a crushing sentence. The word 'crushing' refers to the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb, even if it cannot be described as crushing: Roffey v The State of Western Australia [2007] WASCA 246 [24] - [25].

31 With respect to the submission that the total effective sentence offended the first limb of the totality principle, counsel for the appellant, in her written submissions, submitted that, having regard to cases such as Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49; Nelis v The Queen [2000] WASCA 194; Colangelo v The State of Western Australia [2004] WASCA 294; Dann v The State of Western Australia [2006] WASCA 254; Dixon v The State of Western Australia [2006] WASCA 255; and Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152, the total sentence imposed in this case was outside the range of sentences customarily imposed for this kind of offending.

32 In support of the submission that the total effective sentence was crushing, it was submitted that the lengthy period of imprisonment would impede her chance of maintaining a strong relationship with her children and will hinder her reintegration into the community. Accordingly, it was said she was left with little hope for the future.

33 The question of whether a sentence is manifestly excessive or whether it offends the totality principle is not answered simply by reference to other cases. It is not enough that counsel gather together a selection of cases which are said to have similarities to the case at hand and, by an exercise of broad comparison, attempt to demonstrate error. What is required is analysis of all the relevant circumstances of the case.

34 This is not to say that other cases have no use. Reference to other cases assists to achieve consistency in sentencing. Previous cases also 'provide guidance to sentencing judges and stand as a yardstick against which to examine the sentence which was imposed': Tricoli v The State of Western Australia [2011] WASCA 74 [5].

35 Bosworth and the other cases cited by the appellant are not apt comparators to this case. None of the cases deal with quantities of the kind involved in the commission of counts 1, 2 and 3. The overall offending here is more serious than the offending in the cases cited on behalf of the appellant.

36 The appellant was a significant dealer in ecstasy. The facts of count 1 show that she was willing and able to source for profit a large quantity of ecstasy. Count 2 involved a conspiracy to supply an even greater amount of the drug. Counts 3 to 8 show that she was prepared to supply significant quantities of ecstasy and methylamphetamine to others.

37 The appellant's conduct was not a 'one off'. Her offending stretched over a period of almost two months. Her professed motivation for offending, the desire to obtain money to purchase an airfare to New Zealand in order to find her two young children, was rightly rejected by the sentencing judge as a significant matter in mitigation. The level and extent of the appellant's offending was too great for this factor to afford any mitigation. Moreover, the scale of her enterprise was plainly designed to make a sum of money greater than that required to purchase an airfare to New Zealand.

38 In cases such as this, the dominant sentencing consideration is general deterrence. Because of this, matters personal to the offender, although not to be ignored, carry less weight. While the quantity of drugs involved is not the be all and end all, it remains a matter of importance. Bearing in mind the limitations that I have already mentioned concerning other cases, recent cases such as Tran v The State of Western Australia [2010] WASCA 38; and Koncurat v The State of Western Australia [2010] WASCA 184, suggest that the total effective sentence was not disproportionate to her offending as a whole. The appellant has not established a breach of the first limb of the totality principle.

39 I now turn to the second limb of the totality principle. It may be accepted that the appellant will suffer personal anguish as a result of being separated from her children and the separation may make it difficult for her to re-establish a maternal relationship with them, but I do not think that these things deprive the appellant of a reasonable expectation of a useful life after her release from prison. The pre-sentence report that was before his Honour indicated that the appellant had a close and supportive relationship with her father, and that she has a reasonable work history. Her counsel told his Honour that the appellant wanted to undertake rehabilitation programs whilst in custody, with the object, in part, of reintegration within the community. The appellant will be young enough, upon release, to have a useful and worthwhile life. I do not regard the total overall sentence imposed upon the appellant as crushing.

41 The 'one transaction rule' was discussed by Steytler P in Borbil v The State of Western Australia [83] - [88].

42 The so-called 'one transaction rule' is not a rule at all, rather it is a good working rule that when a number of offences that arise out of the one transaction were a continuing episode of criminal conduct, any terms of imprisonment for the offences are to be made concurrent. However, the fact that offences are committed soon after one another, or even simultaneously, does not necessarily make them part of a single transaction for the purposes of this rule.

43 In this case, each of the offences committed by the appellant was a separate transaction with the potential, on each occasion, to inflict harm upon the community. This is not a case to which the 'one transaction rule' can be properly applied.

45 The parity principle was explained by Steytler P in I (a child) v The State of Western Australia [2006] WASCA 9, in these terms:

The law with respect to parity is settled, at least in the ordinary case. Speaking generally, justice should be equal and like offenders should be treated alike ... Equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a justifiable sense of grievance ... Moreover, if there are factors which support different treatment as between co-offenders, whether because of different degrees of culpability or differences in their circumstances, then, of course, it will be appropriate to treat them differently ... In such a case the difference in sentence, if it is a reasonable consequence of the different factors, can give rise to no justifiable sense of grievance [65]. (citations omitted)

46 It was submitted on behalf of the appellant that her criminality was equal to that of Mr Hale and that she should have received the same total sentence that he did, 6 years' immediate imprisonment. It is further submitted that there is a disparity between the sentence imposed upon the appellant for count 1 and the sentence imposed upon Mr Belcastro for the same count.

47 There is no merit to either of these submissions. The appellant's criminality was greater than that of Mr Hale. The appellant was convicted of seven counts of offering to supply a prohibited drug to another, whereas Mr Hale was not. Mr Belcastro was substantially younger than the appellant, and pleaded guilty on the fast-track system.

49 The ground of appeal is that the sentencing judge failed to give sufficient discount to the appellant's pleas of guilty. As this court has said on many occasions, a failure to give adequate weight or pay sufficient regard to a relevant sentencing consideration only gives rise to an appealable error if it amounts to a failure to exercise the discretion actually entrusted to the court: Vagh v The State of Western Australia [2007] WASCA 17 [76]. In the absence of a failure to exercise the discretion, a weighting error is not an independent ground which itself justifies appellate intervention. Rather, it is a conclusion that is implicit in, and flows from, a finding that a sentence is manifestly excessive: Trompler v The State of Western Australia [2008] WASCA 265 [32].

50 His Honour expressly referred to the pleas of guilty and gave them mitigatory weight. The pleas were not entered at the first opportunity and were made in the face of what his Honour described as 'a very powerful case'. Although his Honour did not specify the precise discount he gave for the pleas of guilty, he did not have to: Fullgrabe v The State of Western Australia [2006] WASCA 138 [27] - [28].

52 I have reached the conclusion that none of the grounds of appeal have been made out. I do not regard any of the proposed grounds as having a reasonable prospect of success: s 27(2) of the Criminal Appeals Act 2004 (WA). I would not grant leave to appeal in relation to any of them. Accordingly, the appeal must be dismissed.