Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Possession of methylamphetamines with intent to sell or supply - Driving whilst disqualified - Whether total effective sentence of 3 years 6 months' imprisonment breached first limb of the totality principle

Bui v The State of Western Australia [2014] WASCA 168

Cartwright v The State of Western Australia [2010] WASCA 4

Chu v The State of Western Australia [2012] WASCA 135

Coleski v The State of Western Australia [2008] WASCA 260

Doherty v The State of Western Australia [2014] WASCA 142

Formica v The State of Western Australia [2013] WASCA 237

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Jordan v The State of Western Australia [2012] WASCA 163

Karakuyu v The State of Western Australia [2012] WASCA 75

Le v The State of Western Australia [2014] WASCA 120

Neumann v The State of Western Australia [2013] WASCA 70

Roncevic v The State of Western Australia [2012] WASCA 43

Rossi v The State of Western Australia [2014] WASCA 189

Stoysich v The State of Western Australia [2014] WASCA 208

Sumption v Gaunt [2013] WASC 258

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

The State of Western Australia v Hunter [2014] WASCA 87

The State of Western Australia v Reid [2012] WASCA 109

The State of Western Australia v Thompson [2014] WASCA 108

The State of Western Australia v Tran [2014] WASCA 26

Thomson v Brock [2013] WASC 289

2 HALL J: On 10 December 2014 the appellant was sentenced to a total effective sentence of 3 years and 6 months for one offence of possession of a prohibited drug with intent to sell or supply, namely methylamphetamine, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) and one offence of driving a motor vehicle without authority contrary to s 49(1)(a) of the Road Traffic Act 1974 (WA). He was convicted of the drug offence after a trial in the District Court and received a sentence of 3 years' imprisonment for that offence. The drug offence occurred ten days after the appellant was placed on a suspended imprisonment order of 6 months and 1 day suspended for a period of 12 months for the driving offence. The sentencing judge was satisfied that it was appropriate that the suspended sentence be served (as to 6 months rather than 6 months and 1 day) and ordered that that sentence be served cumulatively.

3 The appellant seeks leave to appeal on two grounds. Firstly, that the 'overall sentence which was imposed is manifestly excessive'. Secondly, that in ordering that the activated suspended sentence be served cumulatively the sentencing judge breached the totality principle. In essence both grounds assert that the total effective sentence was disproportionate to the overall criminality and I will deal with them on that basis.

4 The sentencing judge made findings of fact that are not disputed.

5 On 10 June 2013 the appellant was riding his off-road motorcycle on a track in Wandina, near to where he lived in Geraldton. He had a camera case in his possession in which were two quantities of methylamphetamine, a number of small clip seal bags, a set of scales and a straw, which was to be used to spoon the drugs into the smaller bags.

6 An off duty police officer who was exercising a police dog in the same area formed a suspicion about the appellant, approached him and engaged him in conversation. The officer identified himself as a police officer. The appellant then walked away from the officer and, when out of sight, disposed of the camera bag into the bush. He then turned around and agreed to go with the officer in his police vehicle. The appellant was searched and a laptop computer was found in his possession, which was the subject of other action, but no drugs were found at that stage.

7 The police officer later returned to the scene and searched the area. He found the camera case with the drugs in it. Sometime later the appellant returned to the same area and was arrested and charged by police. The drugs contained in the case totalled 5.78 grams with a purity of 26% to 27%.

8 At trial the appellant's defence case was that he had nothing to do with the drugs but this was clearly rejected by the jury. The trial judge described the prosecution case as being quite overwhelming. The amount of drugs raised a presumption of an intention to sell or supply. The trial judge accepted that the appellant was a user of methylamphetamine and may have intended to use some of the drugs, but that the amount and the presence of small clip seal bags and scales indicated that he was engaged in low level street dealing.

9 No facts were provided in regard to the driving offence. However, the appellant's record showed that this offence had been committed on 12 April 2013 and was an offence of driving without authority in circumstances where the appellant had never held an Australian driver's licence or was disqualified from holding such a licence: s 49(1)(a) and s 49(3)(b).

10 The appellant had more than a dozen prior offences of a similar type between 1998 and 2008. The most recent of such prior offences had been dealt with on 11 January 2010. On that date the appellant was sentenced for two offences to imprisonment for three months on each. He was sentenced to other terms of imprisonment for other offences at the same time.

11 The suspended term of imprisonment was imposed on 30 May 2013. That sentence was a suspended term of imprisonment of 6 months and 1 day suspended for a period of 12 months from 30 May 2013.

12 At the time of sentencing the appellant was 39 years old and had a long history of drug use. He had been in a stable personal relationship for the previous two years and his partner remained supportive of him. He had recently acquired a financial interest in a tattoo shop and intended to commence training to improve his drawing skills so he could work in the shop.

13 The appellant has a long criminal record, including many driving offences but also numerous offences of burglary, fraud and possession of drugs. Included amongst the drug offences are convictions for possession of methylamphetamine on 11 January 2010 and possession of a prohibited drug with intent to sell or supply on 20 November 2009. For each of those offences he received terms of imprisonment.

14 The appellant does not suggest that there were any express errors in the trial judge's remarks on sentence. Accordingly it is unnecessary to refer to those remarks in detail.

15 It is sufficient to note that his Honour referred to the strength of the prosecution case, that the appellant had a long history of offending and that despite being imprisoned on numerous occasions he had not been deterred from further offending. His Honour accepted that the appellant was a user of drugs but was also a street level dealer and therefore part of the chain of distribution of methylamphetamine into the community. Reference was made to the importance of personal and general deterrence and the fact that factors personal to the appellant were of less significance in respect of an offence of this nature.

16 The appellant relies on the first limb of the totality principle. That limb requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences, having regard to all relevant circumstances, including those referable to the appellant personally.

17 Despite the fact that both grounds of appeal refer to the total sentence, the appellant's written and oral submissions focus particularly on the sentence of 3 years imposed for the drug offence. It is not suggested that it was unjust to activate the suspended sentence for the driving offence or that a sentence of 6 months' imprisonment for that offence was inappropriate. Given the appellant's long history of committing offences of driving without authority no sensible argument could be made against that sentence: See Thomson v Brock [2013] WASC 289 [18] - [19]. It was submitted that the sentence should not have been made cumulative but the only reason advanced in support was said to be an excessive sentence for the drug offence. The driving offence was committed at an earlier point in time and was not connected to the drug offence. In those circumstances, subject to totality considerations, a cumulative sentence would be expected. Accordingly the appellant's argument depends critically upon establishing that the sentence for the drug offence was excessive and should have been offset by making the sentence for the driving offence concurrent.

18 The maximum penalty for the offence of possession of a prohibited drug with intent to sell or supply is 25 years' imprisonment. The major sentencing considerations for offences of this nature are general and personal deterrence. The weight of the drugs in question is a matter of importance but is not, generally, the chief factor to be taken into account. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing and whether the offence was committed solely for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be of very limited significance, though they are not completely irrelevant: The State of Western Australia v Atherton [2009] WASCA 148 [125].

19 In the present case whilst the amount of drugs found in the appellant's possession was not large, he was found to be engaged in street level dealing. This finding was well supported by the fact that the appellant was also found with clip seal bags and scales. The fact that he was also using drugs and may have been motivated to engage in dealing to support his habit did not reduce the seriousness of the offence. Indeed, there was a complete absence of mitigating factors. The appellant had denied responsibility for the drugs and was convicted after trial. He was not a young man and had a large number of prior convictions, including for possession of drugs. The prior record did not aggravate the offending but it did mean that the appellant lacked the mitigating factor of good character. It also meant that there was a clearly enhanced need for a sentence that incorporated significant personal deterrence.

20 The appellant submitted that the sentence of 3 years was inconsistent with sentences imposed in other cases. In particular it was suggested that sentences of 3 years' imprisonment had been reserved for offences involving substantially greater quantities of drugs than was involved here. The appellant referred to the sentences imposed for individual counts in a number of cases where that sentence was a component of a larger total sentence. The likelihood that those individual sentences had been affected by totality considerations made those comparisons unhelpful. Furthermore, the appellant sought to establish inconsistency by focusing exclusively on the amount and purity of the drugs involved. Whilst these are important factors, other factors cannot be ignored.

21 The appellant placed particular reliance on Sumption v Gaunt [2013] WASC 258 in which the offender was sentenced to 9 months' imprisonment following a successful appeal against sentence for possession of 3.51 grams of methylamphetamine with intent to sell or supply. There were, however, a number of significant differences between that case and the case of the appellant. In Sumption the appellant was dealt with in the Magistrates Court and pleaded guilty. She was a mother of young children. Whilst the amount of drugs in that case raised the presumption of an intention to sell or supply, the amount was smaller and the offender denied any intention to sell and claimed that she intended to use the drug herself and share it with her friends. That issue was determined in the offender's favour at a trial of issues in the Magistrates Court. However, the offender was subsequently sentenced on the basis that she had a commercial purpose. This was clearly inconsistent with the findings on the trial of issues and the appeal was conceded by the prosecution. That case cannot be meaningfully compared with that of the appellant.

22 The appellant also referred to The State of Western Australia v Hunter [2014] WASCA 87 in which a sentence of 12 months' imprisonment was imposed for possession of 5.22 grams of methylamphetamine at 27% to 82% purity. That particular sentence was not the subject of the appeal and in any event it formed part of a larger course of conduct and was likely to have been influenced by totality considerations.

23 The appellant also relied upon Coleski v The State of Western Australia [2008] WASCA 260 in which a sentence of 12 months' imprisonment was imposed for possession of 9.87 grams of methylamphetamine at 24% purity with intent to sell or supply. However, in that case the offender entered a fast track plea of guilty, was comparatively youthful and had significantly better personal circumstances than the appellant. The only issue in that case was whether a suspended sentence should have been imposed.

24 Reference was also made to The State of Western Australia v Reid [2012] WASCA 109. In that case the offender was originally sentenced to imprisonment for 2 years conditionally suspended for 12 months for possession of 26.6 grams of methylamphetamine at 17% purity with intent to sell or supply. The offender in that case was convicted after entering a fast track plea of guilty. He had pooled resources with friends to acquire the drugs for their mutual use, though some was also to have been sold. A State appeal against the suspension of the sentence was allowed and an immediate term of 2 years' imprisonment was substituted.

25 The appellant also referred to Stoysich v The State of Western Australia [2014] WASCA 208; Rossi v The State of Western Australia [2014] WASCA 189; Bui v The State of Western Australia [2014] WASCA 168; Doherty v The State of Western Australia [2014] WASCA 142; Le v The State of Western Australia [2014] WASCA 120; The State of Western Australia v Tran [2014] WASCA 26; Formica v The State of Western Australia [2013] WASCA 237; Neumann v The State of Western Australia [2013] WASCA 70; Jordan v The State of Western Australia [2012] WASCA 163; Chu v The State of Western Australia [2012] WASCA 135; Karakuyu v The State of Western Australia [2012] WASCA 75 and Roncevic v The State of Western Australia [2012] WASCA 43. All of these cases involve offenders who were sentenced for other offences at the same time. Extracting a single sentence which is likely to have been affected by totality considerations is not a useful basis for comparison. An obvious example of this is Stoysich in which a six month sentence for the sale of 56.8 grams of methylamphetamine was imposed, but it is apparent from a reading of that decision that that sentence was reduced from one of 3 years for totality reasons (the sentence on the second count relating to the sale of 56.4 grams of methylamphetamine was 3 years and 6 months, producing an aggregate of 4 years' imprisonment).

26 There are other relevant cases that the appellant has not referred to. They include The State of Western Australia v Thompson [2014] WASCA 108 and Cartwright v The State of Western Australia [2010] WASCA 4. In Thompson the offender was convicted after trial of one count of possessing 4.34 grams of methylamphetamine with intent to sell or supply. However, the trial judge made factual findings favourable to the offender, in particular that although he may have intended to supply the drugs to others there was no element of commerciality. The offender also had a relevant medical condition and a relatively minor record. The fine that was originally imposed was set aside on a State appeal and a sentence of 18 months' imprisonment suspended for 12 months was imposed in lieu.

27 In Cartwright the offender was convicted after trial of one count of possession of methylamphetamine with intent to sell or supply. The offender in that case admitted to being in possession of 11.8 grams of methylamphetamine with a purity of 78% but denied an intention to sell or supply it to others. Her claim that the drugs was intended for personal use was rejected by the jury. When apprehended the offender was also found in possession of a significant quantity of cash. The sentencing judge accepted that the offender was a longstanding drug user who had previously lived in an abusive relationship. By the time of sentencing she had significantly reformed herself. An appeal against a sentence of 3 years' imprisonment was dismissed. That sentence was described as being 'well within the standards of sentencing customarily imposed': (McLure P) [15].

28 Whilst the amount of methylamphetamine possessed by the appellant was less than that in many of the other cases referred to, that was not the only or indeed the most important factor. The appellant was clearly engaged in low level street dealing. His offending involved an element of commerciality. There was an absence of any mitigating factors and a pronounced need for personal deterrence.

29 The purpose of comparison is not to create some fixed heirarchy of cases into which the appellant's case must be fitted. In every case the existence of discretion means that a range of possible sentences are open. The guidance afforded by comparable cases is general not rigid. The principal purpose of comparison is to ensure that there is consistency in the application of sentencing principles: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520.

30 There is no basis for suggesting that the sentence imposed for the drug offence was excessive. Nor is there a proper basis for suggesting that the cumulative sentence for the driving offence produced a sentence which was disproportionate to the total criminality. Accordingly I would refuse leave to appeal.