Court of Appeal (WA)|2010-09-17|Before: Ms J, Mazza J, Jenkins J, Lure P, Buss JA

KONCURAT -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 184 (17 September 2010)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : KONCURAT -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 184

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Drug offences including possession of 1,023.89 g of ecstasy with intent to sell or supply and possession of a pill press - Total sentence of 8 1/2 years' imprisonment - Was 18 months' imprisonment manifestly excessive for possession of pill press - One transaction rule - Totality principle

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

Cohen v The State of Western Australia [No 2] [2007] WASCA 279; (2007) 180 A Crim R 348

Pollock v The State of Western Australia [2009] WASCA 121

Quach v The Queen [1999] WASCA 210

R v O'Sullivan [2009] QCA 344

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

Royer v The State of Western Australia [2009] WASCA 139

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

The State of Western Australia v Miller [2005] WASCA 53; (2005) 30 WAR 38

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

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

3 MAZZA J: On 14 March 2010, Jenkins J gave the appellant leave to appeal against a total sentence of 8 years 6 months' imprisonment for a number of drug and drug-related offences.

4 The appellant alleges that one of the sentences is manifestly excessive and that his Honour failed to properly apply the totality principle.

5 The relevant principles which this court must apply in this appeal are set out in Wilson v The State of Western Australia [2010] WASCA 82 [2]. Those principles do not need to be repeated here.

6 The appellant pleaded guilty in the District Court on the fast-track system to seven offences, three of which were contained in an indictment and the rest were set out in a notice under s 32 of the Sentencing Act 1995 (WA). On 27 November 2009, the appellant was sentenced as follows:

Possession of MDMA with intent to sell or supply (total of 4.09 g at 18% purity)

Possession of MDMA with intent to sell or supply (total of 1023.89 g of varying purity)

Section 32 charges:

7 The sentence which is the subject of the ground alleging manifest excess is the charge of possession of a pill press in the s 32 notice.

8 The facts of the appellant's offending were not in dispute and can be summarised as follows.

9 On 2 July 2009, the appellant was stopped by police regarding his manner of driving. The police searched his car and located 15 MDMA (ecstasy) tablets weighing 4.09 g with a purity of 18% (count 1), and $13,125 in cash (charge 41525 of 2009). The appellant was, at the time, driving while under suspension (charge 41524 of 2009).

10 At about 1.30 am the next morning on 3 July 2009, the police executed a search warrant at the appellant's home where they discovered a total of 1023.89 g of ecstasy in tablet and powdered form (count 2), and $2,500 in cash (charge 41526 of 2009).

11 The police found in excess of 2,000 ecstasy tablets weighing in total 583.45 g. The vast bulk of these were located in the appellant's bedroom. The police also found powdered MDMA with a total weight of 440.44 g. All of the powdered ecstasy was located in a workshop at the rear of the appellant's house. The purity of the tablets and powder varied. Nearly all the tablets had a purity of 17%. The purity of the great bulk of the powder was between 17% - 46% with a very small amount, 1.53 g, being 75% pure. In the rear workshop, police also found a pill press (charge 41527 of 2009) and other objects used to make ecstasy into pill form. These items included dye, hundreds of small caps for measuring powder, numerous trays, measuring cups and various cutting, binding and colouring agents. The police also found large digital scales, drying lamps, and machines used to package the tablets. It was obvious from all of these items that the appellant had prepared the ecstasy tablets (count 3).

12 The appellant, at the time of the offending, was a drug user, but the large extent of his operation shows that he was both producing and selling the drug for profit.

13 At the time of committing these offences, the appellant was a mature man of 39 years of age. He is married and has two daughters but has been separated from his wife since 2008 primarily because of his illicit drug use. He came from a close and supportive family.

14 He completed year 12. Up until 2006, he was in steady employment in a number of fields including crayfishing, boilermaking, and off-shore marine work. In 2006, the appellant became embroiled in a misconduct allegation at work and was subsequently discharged from his full-time employment and was made a casual employee, although after that he was offered little work.

15 The sentencing judge received a substantial number of character references which spoke highly of the appellant. Some of the referees expressed the opinion that his offending behaviour was totally out of character.

16 The appellant had a brief and insignificant criminal history.

17 The appellant first started using illicit drugs during 2001. He initially used ecstasy and methylamphetamine on an occasional basis, but over time his drug use gradually increased to a point prior to the offences where he had become a daily user of illicit substances and in particular methylamphetamine.

18 In early 2008, the appellant was diagnosed with depression as a result of which he was prescribed anti-depressants. Later that year his marriage broke down and his amphetamine use escalated.

19 On 12 August 2009, after the appellant's arrest, consultant psychiatrist Dr Oleh Kay examined the appellant. Subsequently, Dr Kay provided a report dated 13 August 2009 which was before his Honour. In Dr Kay's opinion, the appellant has adult attention deficit/hyperactivity disorder (ADHD) as well as a depressive disorder.

20 Since his incarceration the appellant has undertaken a number of rehabilitative courses.

21 Because the appellant's grounds of appeal allege implied error, that is the error is implied from the sentence itself, there is no need for me to set out his Honour's sentencing remarks in great detail.

22 His Honour was plainly aware of the serious nature of the appellant's offending. His Honour acknowledged that although the appellant began making ecstasy pills to finance his methylamphetamine use, the scale of the operation developed to a point where it went far beyond funding his own use of drugs.

23 His Honour expressly referred to the appellant's fast-track pleas of guilty and to the appellant's acknowledgement of responsibility and his remorse. Appropriate mention was made of the family and community support he had as well as the appellant's depression and ADHD.

24 His Honour expressly referred to both limbs of the totality principle. After accurately describing that principle his Honour said (AB 86 - 88):

In the circumstances of this case I propose to order that certain terms be served concurrently with others in order to arrive at a total sentence that reflects your criminality as a whole and also removes any crushing element that might otherwise be present in the total sentence you will have to serve.

In order to achieve that end I direct that the sentence imposed in relation to count 2 on the indictment, of 7 years, and the offending the subject of the pill press, of 18 months, be cumulative, resulting in an effective term of 8 and a half years.

I direct that the remaining sentences be served concurrently with each other and with the 8 and a half year term I have imposed. The total criminality of the offending in this case, in my view, warrants a total effective sentence of 8 and a half years (emphasis added).

25 It is evident from his Honour's sentencing remarks that, having considered the totality principle, he decided that 8 years 6 months' imprisonment was the appropriate sentence. He then structured the sentence to achieve this result.

26 The appellant's counsel submitted that the pill press was not a sophisticated automated machine. Rather, it was a hand-operated press where a lever was pulled down in order to create an individual tablet. He submitted that in light of the maximum penalty for the offence, 3 years' imprisonment, and the mitigating factors, especially the appellant's fast-track plea of guilty, 18 months' imprisonment for the offence was manifestly excessive.

27 With respect to the totality principle, counsel submitted that all of the offences were features of one criminal enterprise and that 8 1/2 years' imprisonment did not bear a proper relationship with the appellant's overall criminality. Although the ground of appeal is expressed in terms of a breach of the totality principle, the appellant's written submissions raise the issue of whether the sentence for the offence of possession of the pill press should have been ordered to be served concurrently having regard to the one transaction rule.

28 It was submitted that in the light of decisions such as The State of Western Australia v Atherton [2009] WASCA 148, and The State of Western Australia v Toothill [2007] WASCA 236, a sentence of 8 1/2 years was unjustified.

29 Further, it was submitted that the offences of possession of ecstasy, preparation of ecstasy and the possession of the pill press were all part of the one criminal enterprise, in that the pill press was used to prepare the ecstasy (count 3), which was the ecstasy the subject of count 2.

30 The respondent submitted that the sentence imposed upon the appellant for possession of the pill press was not manifestly excessive. Counsel submitted that it was an effective piece of machinery which enabled the appellant to produce a large number of ecstasy pills. It was submitted that the mitigating factors were outweighed by the need for general deterrence and that the sentence came within a proper discretionary range.

31 With respect to the appellant's submission that the imposition of a cumulative sentence for the offence of possession of the pill press breached the totality principle, the respondent submitted that the overall sentence of 8 1/2 years, although severe, was appropriate having regard to the appellant's overall criminality. The respondent conceded that while there was some overlap between the sentence for the pill press and count 3, there nevertheless had to be some additional penalty imposed upon the appellant to reflect the fact that he not only possessed the drug but that he also produced it. The respondent submitted that the authorities cited by the appellant do not bear out the proposition that the overall sentence of 8 1/2 years was too much.

32 I will deal first with the complaint that the sentence of 18 months imprisonment for possession of the pill press was manifestly excessive.

33 Section 14(2) of the Misuse of Drugs Act 1981 (WA) has not previously attracted the attention of this court. It was included in the new pt IV of the Misuse of Drugs Act which came into effect on 1 January 2005. Section 14(2) is in the following terms:

A person who, without lawful excuse, has in the person's possession a category 1 item or a category 2 item commits a simple offence.

Penalty: $12 000 or imprisonment for 3 years or both.

34 The items which comprise categories 1 and 2 are found in sch 3 and 4 of the Misuse of Drugs Regulations 1982 (WA). Speaking generally, these schedules refer to various chemicals and things used in the manufacture and production of various illicit drugs. Amongst the things prohibited in div 2 are cylinders containing various gases used in the production of drugs, some laboratory equipment and heating mantles of a particular capacity and, relevantly to this case, pill presses. The object of the offence is to impede the production of illicit drugs: Second Reading Speech, Mrs M H Roberts, Hansard, 11 June 2003, 8582a - 8583a.

35 The only case referred to by counsel about a pill press is the case of R v O'Sullivan [2009] QCA 344. However, that case is, with respect, of little assistance. Although the appellant in that case possessed a pill press for the production of ecstasy tablets, he was not charged with a separate offence in relation to it.

36 In my opinion, the offence was serious. Ecstasy is almost always consumed in pill form. The appellant used the press to make the drug readily marketable with the evident purpose of maximising profit from its sale. Although not an automated machine, it was highly effective and enabled the appellant to produce a large quantity of ecstasy tablets.

37 The sentenced imposed on the appellant after the fast-track plea of guilty and the acknowledged mitigating factors was one-half of the statutory maximum. However, the pill press was a vital part of the process which resulted in the production of a very harmful drug. General deterrence was a factor of predominant importance. While the sentence was severe, I do not think that it has been demonstrated that his Honour erred in the exercise of his discretion.

38 For these reasons the ground alleging manifest excess must fail.

39 I will now turn to the appellant's submission that by ordering the sentence for the possession of the pill press to be served cumulatively his Honour offended the one transaction rule.

40 The rule was analysed by Steytler P in The State of Western Australia v Miller [2005] WASCA 53; (2005) 30 WAR 38 [14] - [17] in these terms:

The so-called 'one transaction rule' or 'continuing episode rule' is essentially that concurrent sentences should be imposed in respect of a number of offences which 'arise from substantially the same act or same circumstances or a closely related series of occurrences': R v Brown (1982) 5 A Crim R 404 at 407. In Attorney-General v Tichy (1982) 30 SASR 84 at 93 the rule was said to apply in a case of 'one multi-faceted course of criminal conduct' and, in Pearce v The Queen (1998) 194 CLR 610 at 650 [120] Kirby J said that a judge may make sentences for multiple offences of which an accused is convicted concurrent if they are 'considered to be manifestations of the one criminal enterprise, transaction or episode'.

The underlying principle of the 'rule' has been said to be that all the offences taken together constitute a single invasion of the same legally protected interests: D A Thomas, Principles of Sentencing (2nd ed) at 53. However, there are cases in which distinct and unrelated offences have been treated as if they were related for the purposes of concurrency because they were committed within a short period of time: see, for example, R v Scanlon [1987] NTCCA 8; (1987) 89 FLR 77.

In Dicker v Ashton (1974) 65 LSJS 150 at 151 (cited with approval by Asche CJ in Scanlon, at 80 - 81), Wells J said:

'... unless the circumstances are exceptional or the offences in question are the terminal product of separate and independent courses of criminal conduct that happen to have occurred together, a court is not ordinarily justified in imposing cumulative sentences of imprisonment for offences that are of a similar character or ordinarily associated and that simply represent facets of one course of conduct'.

The so-called 'rule' is not a rule at all. It is merely a guideline. In R v Ruane (1979) 1 A Crim R 284, it was described as a 'good working rule'. Each case depends upon its own circumstances and it is for the sentencing Judge to determine whether the application of the guideline would result in an appropriate measure of the total criminality involved in the conduct: R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 at [28], per McLure J (with whom the other members of the Court were in agreement); R v White [2002] WASCA 112; R v O'Rourke [1997] 1 VR 246 at 253 and R v O'Brien and Gloster [1997] 2 VR 714 at 720 - 721. As was said by McHugh, Hayne and Callinan JJ in Pearce at 623, the punishment to be exacted should reflect what an offender has done and should not be affected by the way in which the boundaries of particular offences are drawn.

41 What Steytler P said in Miller was reinforced by Owen JA in Pollock v The State of Western Australia [2009] WASCA 121 [63] - [64]. The rule is at most a factor which guides the exercise of the sentencing discretion. Even where offences are part of one transaction, a sentencing judge is not obliged to make the sentences concurrent if to do so would result in a total term that failed to reflect the offender's criminality: see also Royer v The State of Western Australia [2009] WASCA 139.

42 In the present case, the appellant did more than possess the drug with intent to sell or supply it, he also produced it. That, unquestionably, increased his overall criminality. His Honour was right to reflect this in the total sentence imposed upon the appellant. This could have been done in different ways. I do not think his Honour was wrong to accumulate the sentence he imposed on the offence of possession of the pill press. Nor do I think his Honour would have been wrong to order the sentence on count 3 (the length of which is unchallenged) be served partially concurrently with the sentence imposed on count 2, had he chosen to do so.

43 The question really is whether the total sentence was an appropriate reflection of the appellant's overall criminality. This takes me to the appellant's submissions alleging a breach of the totality principle.

44 The totality principle comprises two limbs which were described by McLure JA (as she then was) in Roffey v The State of Western Australia [2007] WASCA 246 [24] - [25] as follows:

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 ...

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 ... An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing. (citations omitted)

45 The submission that the overall sentence of 8 1/2 years was inappropriately long must be analysed having regard to the seriousness of the appellant's offending, the mitigating factors and the comparative cases.

46 The most serious aspects of the appellant's offending were:

(a) he possessed more than 1 kg of ecstasy in both tablet and powder form;

(b) in addition to possessing the drug, he produced it on a significant, and, in my opinion, a sophisticated scale; and

47 It was said on the appellant's behalf that his offending was caused by his methylamphetamine addiction and the need to obtain money to fund it. While I accept this to be so in part, it is hardly a mitigating factor. The appellant's enterprise went a long way beyond this objective and had developed into a significant business for profit. He was not a user/dealer offending on a small scale simply to fund his habit, rather, he was a significant producer and commercial dealer of ecstasy; his offending was very serious indeed.

48 There were, in the appellant's favour, a number of mitigating factors. They were:

(b) the appellant's genuine remorse and acceptance of responsibility;

(c) the appellant's good antecedents, including his supportive family and friends, his constant work history; and the absence of any real criminal history;

(d) the appellant's depressive illness and ADHD (although it was not said that these things were causative of his offending); and

(e) the appellant's strong desire to rehabilitate himself from his methylamphetamine addiction and, upon release, to live a useful law abiding life.

49 However, as has been so often said, in cases of serious drug offending matters personal to the appellant carry limited weight because the primary sentencing objective, in such cases, is personal and general deterrence.

50 I now turn to the comparative cases. While other cases may assist to identify the range of a sound sentencing discretion and ensure an appropriate level of consistency, it is as well to bear in mind that the circumstances of cases can vary greatly: Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 [12] and [37]. Comparable cases are a guide. Their limits are flexible rather than rigid: Quach v The Queen [1999] WASCA 210 [27].

51 It is also important to bear in mind in any drug case that the focus is not solely on the quantity of the drug involved, although, of course, that is a very important factor to be taken into account: Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [50]; Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [70].

52 As mentioned earlier in these reasons, the appellant cited The State of Western Australia v Atherton [2009] WASCA 148 and The State of Western Australia v Toothill [2007] WASCA 236 in support of the contention that the sentence of 8 1/2 years was disproportionate to the appellant's total criminality, especially as in both those cases, the offenders were, unlike the appellant, convicted after trial.

53 In Atherton, the appellant was convicted of a total of nine drug offences involving just over a kilo of methylamphetamine and just over a kilo of ecstasy. The appellant was a substantial commercial dealer in illicit drugs. He was, at the time of his offending, 44 or 45 years of age with numerous minor prior convictions. After trial, he was sentenced to a total of 8 years' imprisonment which was increased, on a State appeal, to 11 years' imprisonment. The State's appeal was not subject to the common law double jeopardy principles because of the operation of s 41(4)(b) of the Criminal Appeals Act 2004 (WA).

54 In Toothill, the court allowed the State's appeal against a sentence of 4 years 8 months on a charge of possession of 499 g of methylamphetamine with intent to sell or supply and increased the sentence to 6 years' imprisonment. The State appeal was taken prior to the commencement of s 41(4)(b) of the Criminal Appeals Act 2004. Le Miere J, with whom Wheeler JA agreed, said at [39] that the usual range of sentences for an offence of possession of 499 g of methylamphetamine with intent to sell or supply is between 6 to 10 years' imprisonment (post-transitional).

55 On their face, each of these cases points in different directions from the appellant's perspective. On the one hand, it might be said that on a simple comparison with Atherton, the appellant's sentence was too long. On the other hand, a comparison between the present case and Toothill might indicate that the appellant was dealt with leniently.

56 Of course, Atherton and Toothill are not the only relevant cases to consider.

57 In Cohen v The State of Western Australia [No 2] [2007] WASCA 279; (2007) 180 A Crim R 348, Steytler P, with whom Buss JA agreed, reviewed many pre and post-transitional appeal cases with respect to the possession of significant quantities of methylamphetamine and heroin, drugs on the same level of seriousness as ecstasy. It is noticeable that, in most of those cases dealt with by Steytler P, the quantity of illicit drugs was less than the quantity involved here. Having regard to those cases, the total sentence imposed on the appellant does not appear to be outside the range of sentences customarily imposed for this kind of offending.

58 Having considered the seriousness of the offences, the mitigating factors and the comparative cases, I am not persuaded that the total sentence imposed upon the appellant was disproportionate to his criminality. It was bad enough that he had in his possession a large quantity of ecstasy, but it was clear that he was producing the drug, an aggravating feature rarely present in the other cases which have come before this court. This feature showed a degree of entrepreneurship which warranted a total sentence of some severity.

59 In my opinion, the total sentence imposed upon the appellant did not infringe the first limb of the totality principle.

60 No argument was addressed alleging that the second limb of the totality principle had been infringed. Had such an argument been submitted, it would have failed. The appellant's offending was, as I have already observed, very serious and warranted a long sentence. Having said this, I do not think that the overall sentence has destroyed a reasonable expectation of a useful life after release. Nor do I think it will leave the appellant without hope for the future.

61 In my opinion, the appellant has not established that his Honour's total effective sentence breached the totality principle.

62 Neither of the appellant's grounds of appeal can be sustained. I would therefore dismiss the appeal.

Drugs Regulations 1982

Bosworth v The State of Western Australia

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KONCURAT -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 184 (17 September 2010)

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