Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Manifest excess - Turns on own facts

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

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

Fernandes v The State of Western Australia [2009] WASCA 227

Haasy v The State of Western Australia [2010] WASCA 207

Laws v The State of Western Australia [2007] WASCA 95

Leonard v The Queen (Unreported, WASCA, Library No 990152, 29 March 1999)

Mishal v The Queen [2001] WASCA 328

Sikaloski v The Queen [2000] WASCA 63

Vodanovic v The Queen (Unreported, WASCA, Library No 960056, 9 February 1996)

Vogel v The Queen [2002] WASCA 261

Watt v The Queen [2000] WASCA 354

Wong v The State of Western Australia [2004] WASCA 286

1 McLURE P: This is an appeal against sentence. On 11 January 2011, the appellant was convicted on his fast-track plea of guilty of one count in an indictment of possessing methylamphetamine with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). On the same date, the appellant also pleaded guilty and was convicted of two charges in a s 32 notice, one of cultivating cannabis and one of possessing a smoking utensil.

2 On 31 March 2011, Yeats DCJ sentenced the appellant to 3 years and 6 months' imprisonment for the indictable offence. She also sentenced the appellant to 2 months' imprisonment for cultivating cannabis and 6 months' imprisonment for possessing a smoking utensil. All the sentences were ordered to be served concurrently, resulting in a total effective sentence of 3 years and 6 months' imprisonment. The appellant was made eligible for parole.

3 The appellant claims that the sentence of 3 years and 6 months for the indictable offence is manifestly excessive.

4 The relevant facts are as follows. At about 10.00 pm on Wednesday 7 July 2010, the appellant was driving a motor vehicle in Yokine. His partner, Patrizia Berlingeri, was in the passenger seat. The vehicle was stopped by police and searched. Police located a clipseal bag in a wallet held by the appellant's partner. The clipseal bag contained 27.9 g of methylamphetamine of 34% purity. The appellant's partner was asked to get out of the vehicle. As she walked to the rear of the vehicle, she was seen to throw two clipseal bags under it. One clipseal bag contained 3.38 g of methylamphetamine of 38% purity and the other, 3.48 g of methylamphetamine of 34% purity.

5 The matter was originally set down for a trial of issues concerning whether there was a commercial aspect to the appellant's offending. A resolution was reached prior to the trial of the issues. The parties agreed that the appellant be sentenced on the basis that 'apart from using the drugs for his own personal use and for the purpose of sharing and exchanging with friends, he would have sold [some] of the drugs to friends who were known to him as drug users to off-set some of the costs he incurred in acquiring the drugs'. At the sentencing hearing, defence counsel informed the court that his instructions were that the appellant 'would have supplied, either by selling or exchanging or sharing with friends, about up to a third of [the drugs in his possession]' (ts 11). That statement was not expressly challenged by the prosecutor.

Your explanation ... is that you were at that time a heavy user of methylamphetamine. You had been purchasing it on the basis of a half a gram for $300 and having trouble not only with the supply, but quality, and decided for a change to spend $10,000 and get [an ounce]. You have admitted readily that you were going to sell or share about a third of it and recover some of your costs.

I'm dealing with you ... not on the basis that you were any sort of commercial dealer, but you are a user-dealer and you're above the very bottom of the pack; you're not down with the user-dealer who buys a gram and sells a tiny bit of it and cuts a gram down and deals in it. You had a substantial quantity of methylamphetamine.

The other aspect of this that is of deep concern is the purity of this methylamphetamine; 34 - 38 per cent pure ... that was more than twice street level in purity (ts 18 - 19).

7 The appellant was aged 43 at the time of the offences. He had lived with his partner for approximately eight years. He has no children. The appellant has been in full-time employment since leaving school after completing Year 12. His references disclose that he is highly regarded by his employer, co-workers and friends.

8 This court cannot intervene simply because it would have imposed a different sentence. The appellant must establish that the sentencing judge made an express or implied material error of fact or law in the sentencing process. The appellant's claim of manifest excess requires the court to infer error from the length of the sentence imposed.

9 In order to establish manifest excess, the appellant must establish that the sentence was outside the range of a sound exercise of the sentencing discretion having regard to the seriousness of the offence, the circumstances of the offending, sentences customarily imposed for offences of that nature and matters personal to the appellant. The maximum penalty for an offence under s 6(1)(a) of the Misuse of Drugs Act is 25 years' imprisonment. In sentencing for such an offence, significant weight is given to general deterrence and reduced weight is given to matters personal to the offender.

10 The appellant contends the sentence of 3 years and 6 months' imprisonment for the indictable offence is outside the range of sentences customarily imposed for such offences. Reference is made to sentences customarily imposed in order to assess whether the sentence under review is broadly consistent with established sentencing patterns. However, the range of sentences customarily imposed does not establish the range of a sound sentencing discretion: Fernandes v The State of Western Australia [2009] WASCA 227 [15]. A sentence may be outside the customary range but not be manifestly excessive. However, if the sentence is within the customary range, it cannot ordinarily be manifestly excessive.

11 Moreover, the judgment of Miller AJA in Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 does not provide a sentencing matrix for the determination of the appropriate length of the sentence: Fernandes [14]. Nor does it establish any customary range. For example, Miller AJA said in Bosworth:

In cases involving smaller quantities of methylamphetamine (between 3 g and 65 g), sentences (where appropriate converted in accordance with the post-transitional provisions) have ranged from between 2 and 5 years [41].

12 That paragraph does not itself establish that the sentence imposed on the appellant is within the customary range. That range is identified by reference to all relevant sentencing factors, not solely by reference to the weight and purity of the drugs. Further, weight and purity are closely linked in an assessment of the seriousness of the offending.

13 I have reviewed the cases referred to by Miller AJA in [41] of Bosworth and comparable cases after Bosworth. The appellant's assessment of comparability tended to focus on the primary mitigating factors in his case, being the fast-track plea of guilty and absence of any relevant prior drug offences. That approach is too narrow. In assessing comparability and broad consistency regard must be had to all significant matters impacting on the length of the sentence including, for example, youth and cooperation with authorities.

14 A review of the case law confirms that the sentence of 3 years 6 months is at the high end of the customary range. However, it is not outside that range and is not manifestly excessive. See in particular Leonard v The Queen (Unreported, WASCA, Library No 990152, 29 March 1999); Mishal v The Queen [2001] WASCA 328; Vogel v The Queen [2002] WASCA 261; Wong v The State of Western Australia [2004] WASCA 286; Watt v The Queen [2000] WASCA 354; Vodanovic v The Queen (Unreported, WASCA, Library No 960056, 9 February 1996); Sikaloski v The Queen [2000] WASCA 63; Laws v The State of

Western Australia [2007] WASCA 95; Haasy v The State of Western Australia [2010] WASCA 207.