Court of Appeal (WA)|2009-12-17|Before: Mr P, Lure P, Owen JA, Wheeler JA

FERNANDES -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 227 (17 December 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : FERNANDES -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 227

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentence - Possession of prohibited drugs with intent to sell or supply - Weight of drug - Whether material error of fact - Totality principle - Turns on own facts

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

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

HV v The State of Western Australia [2006] WASCA 242

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

The State of Western Australia v Akizuki [2008] WASCA 267

1 McLURE P: This is an application for leave to appeal and an appeal against a total sentence of 5 years' imprisonment imposed on the appellant following his conviction on three counts of possessing a prohibited drug with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).

2 The relevant facts are as follows. On 11 March 2008 the appellant was at his industrial unit in O'Connor. He was observed placing a canister on top of a shed located inside the rear yard of a neighbouring unit. The police attended and seized the contents of the canister which consisted of a disputed but on any view significant amount of cash, two small electronic scales and seven clipseal bags containing various amounts of methylamphetamine (count 1) and MDMA (count 2). The total amount of methylamphetamine was 47.58 g with purities of between 7% and 30%. The total amount of MDMA was 2.52 g with a purity of 17%.

3 The following day the police searched the appellant's car and found his wallet inside the glove box which contained $575. Directly underneath the wallet were 12 clipseal bags which contained a total of 3.53 g of amphetamine with purities of between 20% and 29% (count 3). The appellant pleaded guilty to the offences in the week prior to trial. The appellant was sentenced to a term of imprisonment of 3 years on count 1, 1 year on count 2 and 2 years on count 3. The sentences on counts 1 and 3 were ordered to be served cumulatively and that on count 2 to be served concurrently resulting in a total sentence of 5 years.

4 The appellant relies on two grounds of appeal. He claims the sentencing judge erred:

(1) in finding that, in relation to count 3, the appellant possessed 3.59 g of amphetamine with intent to sell or supply; and

(2) in imposing a total sentence which infringed the totality principle.

5 On count 3 the appellant pleaded guilty to possession of amphetamine. However, the sentencing judge referred to it in his sentencing remarks as methylamphetamine. That error is not alleged to be material.

6 At the time of the offences, the appellant was aged 31 and single. It appears from the pre-sentence report that at the time of the offences he was in business on his own account as a panel beater.

7 The appellant has a prior criminal record including numerous convictions for possession of prohibited drugs with intent to sell or supply. The convictions for those offences were recorded in October 2001, March 2003 and July 2006. In March 2003 he was sentenced to a total sentence of 4 years and 6 months' immediate imprisonment. The appellant has used amphetamines since the age of 23. However, he committed the offences in question in order to service a business loan.

8 Both parties accept that in sentencing the appellant on count 3, the sentencing judge erred in finding that the appellant possessed 3.59 g instead of 3.53 g.

9 This court can only intervene if the sentencing judge made an express or implied material error of fact or law: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

10 A 'material' error of fact is one that affects, or is capable of affecting, the sentence actually imposed by the sentencing judge. The discrepancy between the actual amount of prohibited drug the subject of count 3 and that found by the trial judge is 0.06 g and is not material in the relevant sense. There is no merit in ground 1.

11 The appellant relies on the first limb of the totality principle which is to the effect 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.

12 Under that rubric, the appellant submits the sentencing judge failed to properly consider the aspects common to counts 1 and 2, relying on Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616. As I noted in HV v The State of Western Australia [2006] WASCA 242 [24], in the ordinary course of sentencing for multiple offences, the court will first determine the appropriate sentence for each offence, secondly, assess whether the sentences should be made concurrent or cumulative by reference to established principles (such as the one transaction rule and the principle against double punishment) and thirdly, review the aggregate sentence by reference to principles of totality. Confusion sometimes arises because orders for cumulation and concurrence are often the tools used at both the second and third stages.

13 There is simply no merit in the assertion that the sentencing judge failed to properly consider the aspects common to counts 1 and 2. He ordered those sentences to be served concurrently.

14 There is also no merit to the claim that the total sentence offends the totality principle. There is a widespread misunderstanding that the ranges of a sound sentencing discretion for drug trafficking offences are identified in [40] - [41] of the judgment of Miller JA in Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49. As a result, those paragraphs in Bosworth are often treated as if they provide a sentencing matrix for the determination of the appropriate sentence. That is neither the intended nor a proper use of the information in Bosworth. That information sets out the range of sentences customarily imposed and does so by reference to the quantity of prohibited drug.

15 Sentences customarily imposed for offences of a particular type is one of a number of relevant factors in the determination of whether a sentence is outside the range of a sound sentencing discretion (that is, manifestly excessive or inadequate) and whether a total sentence infringes the totality principle. The range of sentences customarily imposed for a particular offence does not establish the range of a sound sentencing discretion: The State of Western Australia v Akizuki [2008] WASCA 267 [71]. Moreover, a sentencing judge is required to consider all the relevant circumstances of the particular case in determining the appropriate sentence for an individual offender. The quantity of prohibited drugs in the offender's possession is one of a number of significant sentencing factors. In this case there was also a late plea of guilty from a person with numerous convictions for trafficking in prohibited drugs. There is no reasonable basis for a claim that the total sentence infringes the totality principle.

16 For these reasons, I would refuse leave to appeal

Bosworth v The State of Western Australia

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Judgment (28 paragraphs)

FERNANDES -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 227 (17 December 2009)

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Legislation Cited (1)

Cases Cited (2)