Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Leave to appeal against sentence - Possession of methylamphetamine with intent to sell or supply - Other s 32 notice matters including traffic and drug offences - Whether first limb of totality principle infringed

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

Sentencing Act 1995 (WA), s 32

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

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

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

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

The State of Western Australia v Andela [2006] WASCA 77

Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107

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

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

3 On 29 November 2010, shortly before his scheduled trial, the appellant pleaded guilty to one offence contained in an indictment of possession of methylamphetamine with intent to sell or supply it to another. He was remanded for sentence to 18 January 2011.

4 On that day, the appellant pleaded guilty to a further 24 offences contained in a notice under s 32 of the Sentencing Act 1995 (WA). Immediately after hearing sentencing submissions, his Honour sentenced the appellant to a total effective term of immediate imprisonment of 4 years and 10 months. The appellant was fined in respect of some offences and his motor driver's licence was disqualified.

5 All of the offences which his Honour dealt with, and the individual sentences he imposed, are set out in the table below:

Possession of methylamphetamine with intent to sell or supply

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

Section 32 Notice

(s 6(2) MDA)

(s 97(f)(iii) Road Traffic Act 1974 (WA) (RTA))

(s 49(1)(a) RTA)

(s 15(3) RTA)

(s 53(1)(b) RTA)

(s 60(1) RTA)

(s 66(1) Road Traffic (Vehicle Standards) Regulations 2002 (WA))

(s 49(1)(a) RTA)

Possess a controlled weapon (s 7(1) Weapons Act 1999 (WA))

Possess unlicensed ammunition (s 19(1) Firearms Act 1973 (WA))

10 years (Summary conviction penalty: 3 years and $36,000 fine)

Possession of methylamphetamine with intent to sell or supply

6 There is no appeal against any of the individual sentences imposed by his Honour or against the fines and disqualifications. The ground of appeal alleges that the total effective sentence of 4 years and 10 months infringes the totality principle. The relevant appellate sentencing principles are set out in Wilson v The State of Western Australia [2010] WASCA 82 [2]. This court must not grant leave to appeal unless it is satisfied that the ground has a reasonable prospect of succeeding: s 27(2) of the Criminal Appeals Act 2004 (WA).

7 The facts of the appellant's offending are as follows.

8 At 10.40 am on 22 September 2009, police searched premises in Greenwood at which the appellant and his girlfriend were living. In the main bedroom, the police discovered a bumbag. Inside the bumbag was a plastic clipseal bag which contained approximately 22.5 grams of 11% pure methylamphetamine, a set of digital scales and a quantity of small empty clipseal bags.

The s 32 notice

9 During the search conducted in relation to the indictable offence, police found three 1-millilitre ampoules of testosterone (count 1 - possession of a prohibited drug).

10 At about 10.30 pm on 1 October 2009, a motor vehicle being driven by the appellant was observed to have stopped in the middle of a suburban road in Marangaroo. The vehicle was fitted with a false numberplate (count 2 - false numberplate). At the time, the appellant's driver's licence was under suspension (count 3 - no authority to drive). It was ascertained that the vehicle was unlicensed (count 4 - unlicensed vehicle).

11 At approximately 2.51 pm on 13 November 2009, police observed the appellant driving a Subaru sedan on Wanneroo Road, Girrawheen. The vehicle was subject to a compliance notice which had expired, and was being driven contrary to that notice (count 7 - driving a vehicle contrary to a compliance notice). The appellant's driver's licence was under suspension (count 8 - no authority to drive). The police attempted a traffic stop by activating their lights and siren, but the appellant refused to stop and accelerated away at high speed (count 5 - fail to stop when called upon).

12 The police pursued the appellant. During the pursuit, the appellant drove, at one point, at a speed of approximately 120 km per hour in a 70 km per hour zone. He later veered dangerously to overtake vehicles and overtook vehicles by driving on the incorrect side of a median strip at speed. Eventually his vehicle encountered mechanical problems, and the police were able to pull up alongside it. He then turned into another street where he finally rolled to a stop after making minor contact with the unmarked police vehicle (count 6 - reckless driving).

13 When the police searched his vehicle, they found a replica semi-automatic pistol between the driver's seat and the centre console (count 9 - possession of a controlled weapon). In the replica pistol were two live rounds of ammunition (count 10 - possession of unlicensed ammunition).

14 At approximately 2.52 pm on 24 September 2009, police observed the appellant driving a Subaru sedan in Girrawheen. He was at the time suspended from driving (count 14 - no authority to drive). The appellant's vehicle was followed by a police vehicle. The police vehicle activated its emergency lights and siren in order to stop the appellant, but he refused to do so (count 12 - fail to stop when called upon). A pursuit ensued. During the pursuit, the appellant erratically zigzagged from lane to lane in heavy traffic and then drove on the incorrect side of the road, towards oncoming traffic, for about 500 metres. The appellant eventually turned into a cul-de-sac. Rather than stopping, he did a U-turn and collided with the front of the pursuing police vehicle, which was stopped in the middle of the road (count 13 - reckless driving). The appellant was driving with a passenger. Both were removed from the car. The police searched the appellant and found $4,120 in cash in the appellant's pants pocket. Subsequently, he gave police different accounts of how he came to be in possession of the cash (count 11 - possession stolen or unlawfully obtained property).

15 At about 7 pm on 28 January 2010 (erroneously referred to by the prosecutor during sentencing submissions as 29 January 2010), the appellant was driving a Subaru sedan in Balga. At the time, the appellant's driver's licence was cancelled (count 18 - no authority to drive). The vehicle in which he was driving had a false numberplate at the rear (count 19 - false numberplate), which had been stolen (count 15 - possession stolen or unlawfully obtained property). The numberplate at the front of the car was a different numberplate to the one at the rear and was false (count 20 - false numberplate). It too had been stolen (count 23 - possessing stolen or unlawfully obtained property).

16 The police took up a position behind the Subaru. The appellant accelerated heavily and pulled away at high speed. The police activated their emergency lights and siren, but the appellant failed to stop (count 16 - fail to stop when called upon). The police pursued the appellant onto Reid Highway, where he drove at speeds in excess of 140 km per hour in a 90 km per hour zone. The appellant weaved in and out of traffic, causing other vehicles to take evasive action to avoid being hit. He exited Reid Highway and a short time later went the wrong way around a roundabout. After that, he drove in a built-up area at speeds in excess of 100 km per hour. Eventually, after slowing, the appellant and a male passenger left the car while it was still moving (count 17 - reckless driving).

17 Police officers chased the appellant on foot. During the chase, the appellant damaged a gate. The value of the damage to the gate was $100 (count 22 - criminal damage). When the appellant entered the premises where he damaged the gate, he did not have permission to be on the property (count 21 - trespass). After he was finally apprehended by the police, the appellant was searched and found to have 3.2 grams of methylamphetamine on his person. A search of his car located digital scales and a mobile telephone which revealed text messages from people consistent with drug dealing (count 24 - possession of methylamphetamine with intent to sell or supply it to another).

18 At the time he was sentenced, the appellant was 27 years of age. When he was approximately 12 years of age, he travelled to India with his father, to whom he was very close. While there, his father disappeared and has not been seen or heard of since. After this, his life became, according to the psychological report provided to his Honour, 'dysfunctional'. He began associating with a criminal gang and became involved with illicit drugs. The appellant has a long history of drug abuse. It is thought that the appellant uses illicit substances for emotional regulation and to temporarily remove himself from the unresolved loss of his father and other life difficulties.

19 The appellant has a long criminal history which shows, in particular, a complete disregard for the rules of the road. Since becoming an adult he has been convicted of five offences of driving without a valid driver's licence (due to court ordered or fines suspension), three offences of reckless driving and three offences of failing to stop when called upon. In addition, he has committed multiple offences relating to firearms, possession of prohibited drugs, receiving, and burglary. Neither his illicit drug use nor his offending show any sign of abating.

20 In the opinion of the psychologist, without significant and intensive intervention, the appellant is likely to reoffend in the future.

21 The main point raised in the appellant's written submissions was that the total sentence of 4 years and 10 months was too much, having regard to his overall criminality.

22 In his oral submissions, the appellant sought to make the additional point that the cumulative sentence on count 24 of the s 32 notice for an offence of possession of methylamphetamine with intent to sell or supply it to another breached the one transaction rule: R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554.

23 This submission was made on an erroneous appreciation of his Honour's orders for cumulation. The appellant believed that his Honour had imposed two cumulative sentences from among the ten sentences imposed for the offences which occurred on 28 January 2010 - counts 15 to 24 of the s 32 notice. In fact he did not. His Honour imposed only one cumulative sentence from those offences, being for count 24. The one transaction rule has no application. Thus, the appeal falls to be considered purely on totality grounds.

24 The totality principle was described by McLure JA in Roffey v The State of Western Australia [2007] WASCA 246 as follows:

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 [24] - [25]. (citations omitted)

25 The appellant alleges that the total effective sentence imposed by his Honour offended the first limb. This requires the court to examine the seriousness of the appellant's offending, the appellant's mitigating factors and comparative cases: Pollock v The State of Western Australia [2009] WASCA 121 [27].

26 With respect to the methylamphetamine offences, being the single count in the indictment and count 24 of the s 32 notice, the sentencing principles which govern this type of offending are well known. Methylamphetamine is a dangerous drug, the use of which is common and causes a great deal of harm. The primary sentencing objective with those who traffic in the drug is general and specific deterrence. Consequently, matters personal to the offender carry less weight: The State of Western Australia v Andela [2006] WASCA 77 [16] - [17].

27 One of the factors which a court must take into account is the quantity and purity of methylamphetamine. It is not the only matter to be taken into account and it is not, in itself, determinative, but is a significant factor: Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107.

28 The indictable offence involved the appellant being in possession of a reasonably substantial quantity of street-grade methylamphetamine. The quantity involved in count 24 of the s 32 notice was considerably less, but was not insignificant. Both quantities were possessed with the purpose of distributing it into the community. The offences were committed separately in time. The s 32 notice offence is aggravated by the fact that it was committed while the appellant was on bail for the indictable offence. General and specific deterrence were the dominant sentencing considerations in each offence.

29 The learned sentencing judge correctly characterised the offences of reckless driving as being 'very serious examples [of their type]'. He rightly described the offences of driving under suspension as 'also serious'. On four separate occasions between 24 September 2009 and 28 January 2010, the appellant drove under suspension. On three of those occasions, he drove recklessly in very dangerous circumstances in order to avoid a police pursuit, showing a complete and selfish disregard for the safety of other road users. This offending occurred against the backdrop of a long prior record of similar offending. That offending serves to illuminate the seriousness of the present offending.

30 The mitigating factors were few. The principal mitigating factor was the appellant's pleas of guilty. The appellant's personal circumstances and desire to rehabilitate himself have to be weighed against the appellant's inability to deal with his drug problem, and the likelihood of reoffending in the future. Accordingly, the protection of the public is a matter which must be given weight.

31 In the circumstances of this case, sentences of immediate imprisonment for the offences involving methylamphetamine were inevitable. The sentences imposed upon the appellant for these offences were within the range of sentences customarily imposed for such offences: Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 [41].

32 The appellant's written submissions refer to many cases, mostly single judge appeals decided in this court, involving sentences imposed for reckless driving and driving under suspension. There is no tariff for these offences. This is because of the widely varying circumstances in which they can be committed and the personal circumstances of the offender. It is clear, however, that particularly in cases of serious and persistent offending, immediate imprisonment is frequently imposed in order to achieve the aims of deterrence and public protection. The sentences imposed by his Honour are not inconsistent with the sentences imposed in other cases involving serious and persistent offending of this type.

33 The overall criminality of the appellant's offending, which extended over a period of approximately 4 months, was high. The appellant's offending was numerous, persistent, multi-faceted and dangerous to other members of the community, and warranted some degree of cumulation. Personal and general deterrence and the protection of the public were required. Having regard to these matters, the total effective term of imprisonment imposed upon the appellant was within a proper exercise of his Honour's sentencing discretion. It was a just and appropriate measure of the appellant's offending in all of the circumstances.

34 The appellant has failed to demonstrate that his Honour made any error. Thus, this court cannot interfere with his Honour's sentencing discretion. The ground of appeal has no reasonable prospect of success. Accordingly, the appeal must be dismissed.

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