Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Appellant sentenced to 3 years and 6 months' imprisonment for four counts of attempted possession of MDMA with intent to sell or supply and one count of possession of MDMA with intent to sell or supply - Whether two of the sentences imposed were manifestly excessive - Whether the total effective sentence infringed the first limb of the totality principle

Burton v The State of Western Australia [2010] WASCA 192

Chan v The Queen (1989) 38 A Crim R 337

Davies v The State of Western Australia [2015] WASCA 14

Giglia v The State of Western Australia [2010] WASCA 9

House v The King [1936] HCA 40; (1936) 55 CLR 499

Hughes v The State of Western Australia [2015] WASCA 164; (2015) 299 FLR 197

MGM v The State of Western Australia [2012] WASCA 24

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

RP v The State of Western Australia [2010] WASCA 75

Samuels v The State of Western Australia [2006] WASCA 222

Sathitpittayayudh v The State of Western Australia [2015] WASCA 152

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

The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198

The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302

The State of Western Australia v Saxild [2008] WASCA 156

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

TXT v The State of Western Australia [2012] WASCA 28; (2012) 220 A Crim R 266

Waldron v The State of Western Australia [2010] WASCA 63

Zohdy v The State of Western Australia [2014] WASCA 141

1 REASONS OF THE COURT: This is an application for leave to appeal against sentences imposed in the District Court on 31 January 2017.

2 After entering fast-track pleas of guilty, the appellant was convicted of four counts of attempting to possess a prohibited drug, namely MDMA, with intent to sell or supply it to another, contrary to s 6(1)(a), read with s 33(1) of the Misuse of Drugs Act 1981 (WA), and one count of possession of a prohibited drug, namely MDMA, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act. These offences occurred on 25 and 26 November 2015.

3 Essentially, the appellant arranged for MDMA in both tablet and powder form to be sent to a post office box registered in his name. The appellant used some of the MDMA himself, but he also supplied and sold some of the drug.

4 The table below summarises some of the features of the offending and sets out the sentences that were imposed by the learned sentencing judge.

5 The total effective sentence imposed upon the appellant was 3 years and 6 months' immediate imprisonment. The appellant was made eligible for parole.

6 The appellant seeks leave to appeal on two grounds. Ground 1 alleges that the individual sentences of 3 years' immediate imprisonment imposed on counts 2 and 5 were manifestly excessive. Ground 2 alleges that the total effective sentence infringed the first limb of the totality principle.

7 For the reasons which follow, neither ground of appeal has a reasonable prospect of succeeding. We would refuse leave to appeal in relation to each ground, with the consequence that the appeal is taken to have been dismissed.[1] Our reasons for these conclusions are as follows.

8 None of the facts as found by the learned sentencing judge has been challenged.

9 The appellant purchased various substances online, including MDMA, via what is known as the dark net. In order to facilitate these purchases, the appellant leased a post office box. The substances he purchased were sent to his designated post office box.

10 On 23 November 2015, police officers were examining parcels delivered to an Australia Post mail centre. During the search, police found a parcel addressed to the appellant which contained approximately 100 banana-shaped tablets which later analysis confirmed to be 32 g of MDMA with a purity of 29%. These tablets were substituted with an inert substance and the parcel was placed into the appellant's post office box (count 2).

11 On 25 November 2015, police identified two more parcels addressed to the appellant's post office box. One parcel contained testosterone. The other contained approximately 1.91 g of MDMA powder of an unspecified purity (count 1). At about 2.50 pm the appellant attended the post office and collected all three parcels addressed to him.

12 A further search of the Australia Post mail centre identified yet another parcel addressed to the appellant's post office box. This parcel was found to contain 6.96 g of MDMA powder of purities ranging between 83% - 86% (count 4).

13 Meanwhile, the police had arrested the appellant. He was conveyed to his home address where a search warrant was executed. In the appellant's bedroom, police located 3.26 g of MDMA powder, 1 g of which was tested and found to be 87% pure (count 3).

14 On 26 November 2015, police located yet another package at the Australia Post mail centre addressed to the appellant's post office box. Upon examination, that package was found to contain approximately 100 yellow banana-shaped tablets which, on later analysis, proved to be MDMA weighing 33.7 g with a purity of 25% (count 5).

15 During the search of his house, the appellant admitted that he would share some of the drugs he obtained with friends and that he would sell some to fund his own use.[2]

16 In a later interview with the police, the appellant admitted that he purchased illegal items, including drugs, over the dark net. He also told the police that he had ordered both the banana-shaped MDMA tablets and MDMA powder in the past. He said that he had not ordered the parcels that were the subject of counts 4 and 5 on the indictment, but those claims were not maintained in the sentencing proceedings. Indeed such claims would be contrary to his guilty pleas.

17 The appellant was 22 years of age at the time of the offence and 23 when he was sentenced. He is positively supported by his parents and his girlfriend. He left school after completing year 10 and started an apprenticeship in electronics. He was later employed as a rigger and then on a part-time basis in a winery. More recently, he has commenced tertiary study for a degree in marine science. A letter from one of his tutors, which was provided to the sentencing judge, described him as a top student.[3]

18 The appellant has a history of illicit drug use. He began using ecstasy when he was 15 and again at 20. Initially, it was for recreational purposes, but his use of the drug increased after he broke up with his former girlfriend.[4] He has tried other illicit drugs including cannabis and hallucinogens.[5] He has no relevant prior convictions.[6]

19 His Honour noted the appellant's fast-track pleas of guilty and gave a discount pursuant to s 9AA of the Sentencing Act 1995 (WA) on each sentence of 25%.[7] In addition, his Honour identified the following mitigating factors:

20 His Honour noted the quantity and the purity of the drugs the subject of the offences.[8] He also observed that the appellant intended to both supply his friends and to 'make money'.[9] His Honour highlighted that serious consequences to individuals and the community flow from the supply and sale of MDMA and other illicit drugs. Quite properly, he referred to the need for penalties imposed by the courts to provide a proper level of personal and general deterrence. He explained that because of the need to provide deterrence, matters personal 'have a lesser role to play than they might perhaps in other offences'.[10]

21 The learned sentencing judge observed that it was not disputed that the only appropriate penalty to be imposed was imprisonment. His Honour considered whether suspension of these terms was appropriate. It is clear that his Honour took into account, for this purpose, all relevant sentencing factors. He concluded that the offending was too serious to permit suspension of the terms.[11]

22 The general legal principles applicable to appeals against sentence are well known and uncontroversial. An appellate court can only intervene if the appellant demonstrates either an express or implied material error. An appellate court is not entitled to intervene merely because it disagrees with the sentence actually imposed. Both of the proposed grounds of appeal rely upon implied error of the type identified in House v The King.[12]

23 To determine whether a sentence is manifestly excessive, it is viewed from the perspective of the maximum penalty for the offence (here, each offence attracts a maximum penalty of a fine of $100,000 and/or 25 years' imprisonment), the place which the criminal conduct occupies on the scale of seriousness of offences of that type, the standards of sentencing customarily observed and the personal circumstances of the offender.[13]

24 The totality principle comprises two limbs. Relevantly to this appeal, 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 the offender's personal circumstances.[14]

25 The submissions of the appellant rely, to a large extent, upon an argument that the individual sentences on counts 2 and 5 and the total effective sentence are inconsistent with the outcomes in comparable cases, being Tulloh v The Queen;[15] The State of Western Australia v Andela;[16] Samuels v The State of Western Australia (No 2);[17] The State of Western Australia v Saxild;[18] Waldron v The State of Western Australia;[19] RP v The State of Western Australia;[20] Burton v The State of Western Australia;[21] MGM v The State of Western Australia;[22] TXT v The State of Western Australia;[23] Zohdy v The State of Western Australia;[24] Davies v The State of Western Australia;[25] The State of Western Australia v Baldini;[26] Sathitpittayayudh v The State of Western Australia[27] and Hughes v The State of Western Australia.[28]

26 While it is necessary to have regard to sentences imposed in comparable cases to attempt to achieve broad consistency in sentencing and in the application of relevant sentencing principles, the requirement does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed. Ultimately, each case must depend on its own facts and circumstances.

27 The sentencing principles applicable to persons convicted of drug dealing offences have been consistently stated by this court in many cases over a long period. The major sentencing considerations for offences of possession (or attempted possession) of a prohibited drug with intent to sell or supply 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 limited significance, although they are not completely irrelevant.[29]

28 It was submitted on behalf of the appellant that the individual sentences on counts 2 and 5 were manifestly excessive and the total effective sentence infringed the first limb of the totality principle, having regard to:

(b) his remorse, youth, positive antecedents and prospects of rehabilitation;

(c) the total quantity of MDMA involved in the commission of the offences and its purity; and

(d) the outcomes in the cases that have been mentioned.

29 The real issue for determination in this appeal is whether the total effective sentence infringed the totality principle. This is because where there is a challenge on totality grounds, the severity of a sentence on an individual count falls to be assessed not in isolation, but in light of the sentences imposed on the other counts.[30]

30 The appellant's overall offending was serious. The appellant conducted a calculated and well-organised drug dealing enterprise. While the scale of the appellant's enterprise was relatively small by comparison to other cases seen in this court, it was by no means insignificant and was calculated to, in part, make a profit.

31 The appellant sourced MDMA in both tablet and powder form from the dark net to protect his identity. He did so in small batches and had them sent to a post office box. Both of these measures were taken to avoid detection. Insofar as the powder was analysed for purity, it was of a very high purity and had the potential to be cut further for distribution in either pill or capsule form. The pills - approximately 200 in total - were ready for sale. Based on the court's experience, their purity, which ranged between 25% - 29%, was fairly typical of street-level MDMA. The pills could not be said to be of low purity.

32 While the appellant cannot be sentenced for uncharged offences, it is clear from his admissions to police that the offences for which he was charged and convicted were not isolated occurrences. It cannot be overlooked that MDMA is a seriously harmful illicit drug which sits in the top echelon of harmful drugs along with methylamphetamine, cocaine and heroin.[31] It is inconceivable that the appellant did not appreciate the wrongfulness of his conduct. Nevertheless, he engaged in serious criminal behaviour and did so partly for financial gain.

33 The facts of this case underscore the need for strong deterrent sentences. This is so despite the appellant's favourable personal circumstances, prospects for rehabilitation and his pleas of guilty.

34 We have had regard to the cases cited on behalf of the appellant. It is unnecessary to analyse them in detail. None of the cases involved facts and circumstances truly comparable to the present case. The results in some of the cases reflect the fact that the appellant had provided assistance to the police or promised assistance to the police in the future: see MGM v The State of Western Australia; TXT v The State of Western Australia and RP v The State of Western Australia. The State of Western Australia v Andela and The State of Western Australia v Saxild were prosecution appeals in which the now-abolished principle of double jeopardy applied. In The State of Western Australia v Baldini, the respondent was convicted after his pleas of guilty of one count of selling MDMA and one count of possessing MDMA with intent to sell or supply it to another. He was sentenced to a total effective sentence of 18 months' imprisonment which was suspended on conditions. Although the State appealed against the sentence on the basis that the length of the sentence was manifestly inadequate, the State's main claim was that the type of sentence imposed was manifestly inadequate. This court upheld that claim and imposed sentences of immediate imprisonment. As to the length of the sentences, the head sentence of 18 months' imprisonment was described as being 'at the very lenient end of the range of sentences imposed'.[32] This case provides no support to the appellant.

35 In oral submissions, Mr Robson drew the court's attention to Davies, Sathitpittayayudh and Zohdy. It is enough to say that three cases cannot establish the range of sentences customarily imposed.

36 Having regard to all of the relevant circumstances, there is no reasonable basis for the claim that the total sentence was disproportionate to the total criminality of the offending, having regard to all relevant circumstances, including the personal circumstances of the appellant. Leave to appeal on ground 2 must be refused.

37 To the extent that ground 1 remains viable, we do not regard the individual sentences imposed on counts 2 and 5 as being manifestly excessive having regard to all of the relevant sentencing factors. With respect to the standards of sentencing customarily imposed, the outcomes in the present case are broadly consistent with The State of Western Australia v Higgins and the cases cited therein. Again, the cases cited by the appellant are unhelpful. The individual sentences highlighted by the appellant in those cases are not apt comparators. Moreover, most of the more recent cases are affected by totality considerations.

38 In our opinion, neither of the sentences imposed on counts 2 and 5 was unreasonable or plainly unjust. They were not manifestly excessive. We would refuse leave to appeal in respect of ground 1.

39 Leave to appeal on both grounds 1 and 2 should be refused and the appeal dismissed. The orders we would make are:

1. Leave to appeal on grounds 1 and 2 is refused.
2. The appeal is dismissed.

[1] Section 27(1), (2) and (3) Criminal Appeals Act 2004 (WA).

[12] House v The King [1936] HCA 40; (1936) 55 CLR 499.

[13] Chan v The Queen (1989) 38 A Crim R 337, 342.

[14] Roffey v The State of Western Australia [2007] WASCA 246 [24].

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

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

[17] Samuels v The State of Western Australia (No 2) [2006] WASCA 222.

[18] The State of Western Australia v Saxild [2008] WASCA 156.

[19] Waldron v The State of Western Australia [2010] WASCA 63.

[20] RP v The State of Western Australia [2010] WASCA 75.

[21] Burton v The State of Western Australia [2010] WASCA 192.

[22] MGM v The State of Western Australia [2012] WASCA 24.

[23] TXT v The State of Western Australia [2012] WASCA 28; (2012) 220 A Crim R 266.

[24] Zohdy v The State of Western Australia [2014] WASCA 141.

[25] Davies v The State of Western Australia [2015] WASCA 14.

[26] The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198.

[27] Sathitpittayayudh v The State of Western Australia [2015] WASCA 152.

[28] Hughes v The State of Western Australia [2015] WASCA 164; (2015) 299 FLR 197.

[29] The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 [125].

[30] Giglia v The State of Western Australia [2010] WASCA 9 [40].

[31] The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 [111] - [121].

[32] The State of Western Australia v Baldini [38].