Criminal law - State appeal against sentence - Selling methylamphetamine to another - Offering to sell methylamphetamine to another - Manifest inadequacy - Totality principle

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

Sentences set aside and in lieu thereof the respondent sentenced on count 1 to 3 years' imprisonment and on count 2 to 2 years' imprisonment

Term of imprisonment on count 2 to commence 18 months after commencement of term of imprisonment on count 1

Cant v The State of Western Australia [2009] WASCA 188

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

Floyd v The State of Western Australia [2013] WASCA 33

Galbraith v The State of Western Australia [2011] WASCA 70

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

Lynch v The State of Western Australia [2011] WASCA 243

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

Swains v The State of Western Australia [2007] WASCA 251

The State of Western Australia v Littlefair [2013] WASCA 177

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

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

The State of Western Australia v Wynne [2008] WASCA 195; (2008) 188 A Crim R 502

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

2 MAZZA JA: This is a State appeal against sentence.

3 The respondent was charged on indictment in the District Court with one count of selling methylamphetamine to another (count 1) and one count of offering to sell methylamphetamine to another (count 2). Each of these offences is contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) and carries a maximum penalty of 25 years' imprisonment and/or a fine in the sum of $100,000. The offences took place on 11 July 2012 and 17 July 2012, respectively.

4 On 5 February 2013, the respondent entered fast-track pleas of guilty to the charges. On that day, he was sentenced to 2 years' imprisonment on count 1 and 15 months' imprisonment on count 2. The learned sentencing judge ordered that the sentences be served concurrently. The respondent was made eligible for parole. The sentences were backdated to commence on 24 January 2013.

5 There are four grounds of appeal. Ground 1 alleges that her Honour erred in concluding that the respondent could not be characterised as a drug dealer. Grounds 2 and 3 allege that the individual sentences imposed on the two counts were manifestly inadequate. Ground 4 alleges that the total effective sentence of 2 years' imprisonment infringed the first limb of the totality principle.

6 Leave to appeal has been granted in respect of each of these grounds.

7 For the reasons which follow, I would allow the appeal, set aside the sentences that were imposed in the court below and re-sentence the respondent.

9 On 10 July 2012, the respondent sent a text message to a person who was, unbeknown to him, an undercover police officer. A series of coded text messages followed, as a result of which, on 11 July 2012, in a carpark off Rokeby Road in Subiaco, the respondent sold to the officer, for $21,500 cash, two clipseal bags containing a total of 41 g of methylamphetamine. The bags weighed 27.4 g and 13.6 g and were 62% and 57% pure, respectively. The following day, the respondent sent a text message, in effect inquiring whether the officer was satisfied with the quality of the drugs.

10 A few days later, the same undercover police officer contacted the respondent by text message. Like the earlier communications, these were in code. On 17 July 2012, the officer wrote that he was 'keen to grab 3 more chooks [ounces of methylamphetamine]. Can you do 39 bucks [$39,000]?'. The respondent replied a short time later, 'Sorry I can't this time I can do you 41 bucks [$41,000] but after this one I can start cause you will be a reg [sic] on team baisic [sic] with our store'. Properly understood, the respondent was saying that he could supply the 3 oz of methylamphetamine, but the price would be $41,000, not $39,000. However, after this transaction, the officer would be a regular customer, implying the possibility of a cheaper price.

11 The undercover police officer replied to the respondent's text, 'no worries, catch ya at the usual on thurs. thnks [sic]'.

12 At 11.09 am on Thursday 19 July 2012, the respondent sent a text message to the officer, stating, 'Hello just confirming coffee?', indicating his intention to meet with the officer. The officer replied and confirmed the meeting. As it turned out, the respondent did not meet with the officer. At just before 1 pm, the respondent was arrested by police, drinking coffee at a café in Forrest Walk, Subiaco, close to where he was supposed to meet with the undercover officer. At the time of his arrest, no illicit drugs were found in his possession. No illicit drugs or the usual indicia of drug dealing were found in a subsequent search of the respondent's house.

13 In her plea in mitigation, defence counsel explained that the respondent had incurred a criminal injuries compensation liability of $12,500 in relation to a prior offence. Rather than seek assistance from his family, who would have in all likelihood helped him, the respondent agreed to 'facilitate' the sale of methylamphetamine on behalf of the supplier in return for the supplier paying off the criminal injury compensation debt. Defence counsel said that the respondent was provided with a mobile telephone and the telephone number of a prospective buyer of the drug, to arrange a sale. The respondent made the arrangements. The prospective buyer was the undercover officer.

14 Defence counsel submitted that the supplier gave the drugs the subject of count 1 to the respondent, who then effected the sale to the undercover officer. It was claimed that the respondent gave the $21,500 in cash he received to the supplier.

15 In respect of count 2, it was said that the respondent 'forgot' about the meeting with the undercover officer.

16 Defence counsel submitted that the respondent was not involved in large-scale commercial drug dealing. Rather, it was said, the respondent viewed the transactions as 'a means to an end'. By this expression, defence counsel meant that the respondent's involvement in the offences was designed to pay off the criminal injuries compensation debt (ts 7 and 14).

17 In mitigation, defence counsel gave particular emphasis to the respondent's fast-track pleas of guilty, his relative youth and his supportive family.

18 Defence counsel conceded that the only appropriate sentence to be imposed was a term of immediate imprisonment.

19 The prosecutor submitted that the appellant should be characterised as a 'mid-range dealer dealing for commercial profit' (ts 13). She accepted that the respondent may have used some of the profit from the transactions to help pay for any criminal compensation claim (ts 13). She did not dispute the submission that the respondent 'forgot' about his meeting with the undercover police officer on 19 July 2012.

20 At the time that he was sentenced, the respondent was 22 years of age. He had a good upbringing and has a supportive family. He had some history of employment and was, at the time that he was sentenced, working at his family's bakery and as a kitchenhand in a family friend's restaurant.

21 The respondent has a substantial record of convictions and cannot be said to be a person of good character. Significantly, he was convicted in the District Court on 24 August 2009 of doing an unlawful act with intent to harm, for which he was sentenced to 12 months' immediate imprisonment. On 5 October 2009, he was convicted in the District Court of aggravated burglary and sentenced to 8 months' imprisonment cumulative upon the earlier sentence. When his adult record is seen in combination with his juvenile offending, it is evident that the respondent has been offending on a regular basis since 2006 and appears to have little regard for the law. The respondent is influenced by his negative peer associations, including with two known street gangs. The author of the pre-sentence report commented about these associations, suggesting a heightened risk of recidivism.

22 It is clear, from reading her Honour's sentencing remarks as a whole, that the respondent was sentenced on a view of the facts and his antecedents that was most favourable to him.

23 Her Honour accepted, in effect, that the respondent committed the offences so that his criminal injuries compensation debt would be discharged. Further, with respect to count 2, her Honour accepted that the respondent was drinking coffee and had forgotten about the arrangement he had made to sell the undercover officer approximately 3 oz of methylamphetamine.

(a) the respondent was close to the supplier 'of large quantities of reasonably pure methylamphetamine' (ts 16);

(b) the respondent supplied significant quantities of the drug;

(c) count 1 was 'serious' because of the amount of methylamphetamine and its purity;

(d) the respondent's actions were not just a one-off transaction;

(e) but for the intervention of the police, the respondent would have facilitated the circulation into the community of a substantial quantity of drugs of a high purity;

(f) the respondent committed the offences for financial gain; and

(g) the transactions in which the respondent was involved were more than 'a retail sale'.

25 The learned sentencing judge said that the two matters of 'real mitigation' were the respondent's fast-track pleas of guilty (for which her Honour gave a discount of 25% pursuant to s 9AA of the Sentencing Act) and his youth which, she said, 'indicates the naivety which [the respondent] hopefully will grow out of'.

26 After passing the individual sentences for the two counts on the indictment, her Honour turned to the issue of cumulacy. Her Honour remarked that, having regard to the arranged second sale which, she said, indicated persistence, she would usually have ordered the sentences to be served cumulatively. However, having regard to the respondent's 'young age' and that he was 'not beyond ... rehabilitation', she ordered that the terms be served concurrently with each other.

27 This ground concerns the following portion of her Honour's sentencing remarks:

Whilst it is not possible to characterise what you were doing as simply being a messenger boy in a sense of a courier, I cannot characterise you as being a dealer in itself simply because of the relatively short period of time that it appears that you can be shown to have been involved in this. And the actions that you have actually done which it would appear to me that you were a very useful go-between for those who were in the business of supplying drugs in this quantity and this purity which puts you close to people of that kind and it makes you very useful to them and, of course, the risk that those people are avoiding by using you is the risk of exactly what has happened to you now (ts 17 - 18). (emphasis added)

28 The appellant submitted that the conclusion that the respondent was not a drug dealer was contradicted by the objective facts of the case and, indeed, by comments made earlier in the sentencing remarks. With respect to this latter point, the appellant pointed to a statement made by her Honour earlier in the sentencing remarks when she said:

The State has characterised this as being effectively a mid-level dealer and objectively, that's what you were doing. You were supplying significant quantities of methamphetamine [sic]. So the offence is serious because of the amount of the methamphetamine [sic] and the purity of methamphetamine [sic] (ts 16).

29 In this appeal, the respondent's counsel conceded that the respondent was, by his actions, a drug dealer. The respondent did not seek to justify her Honour's observations based on the relative brevity of the time in which the respondent committed the offences (appeal ts 15). However, the respondent argued, having regard to the sentencing remarks as a whole, and particularly her Honour's findings as to the respondent's involvement in the offences, her Honour did not misapprehend what the respondent actually did. Accordingly, the error committed by her Honour did not materially affect the outcome.

30 It is clear, on any reasonable view of the facts as found by her Honour, that the respondent was a dealer in drugs. The notion that someone is not a drug dealer because that person's commercial activities occur over a short period of time cannot be accepted. A person may deal in a commodity such as illicit drugs even if the dealing occurs in a brief space of time. Plainly then, her Honour erred in the statement highlighted by the appellant in this ground of appeal. However, I accept the respondent's submission that the error was not material. An offender is sentenced for what he or she actually does, rather than simply by any label that may be attached to the offending conduct: see Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584. Reading her Honour's sentencing remarks as a whole, it is clear that the respondent was sentenced for what he actually did. As her Honour's error was not material, I would not uphold ground 1.

Grounds 2 and 3 - Were the individual sentences manifestly inadequate?

31 The appellant alleges that the individual sentences imposed by her Honour were manifestly inadequate.

32 To determine whether a sentence is manifestly inadequate, it is necessary to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of offences of the kind in question and the personal circumstances and antecedents of the offender.

33 The maximum penalty for each of the offences is, as I have already mentioned, 25 years' imprisonment and/or a fine of $100,000.

34 I turn to the standards of sentencing customarily observed with respect to offences of the type committed by the respondent.

35 The appellant submitted that in cases involving methylamphetamine, where a term of imprisonment of 2 years or less was imposed or upheld on appeal, and putting to one side the few exceptional cases which involved suspended imprisonment, the quantities of the drug involved in those cases were typically substantially less than involved in the present case. The appellant cited the cases of The State of Western Australia v Reid [2012] WASCA 109; Coleski v The State of Western Australia [2008] WASCA 260; The State of Western Australia v Wynne [2008] WASCA 195; (2008) 188 A Crim R 502; The State of Western Australia v Saxild [2008] WASCA 156 and Swains v The State of Western Australia [2007] WASCA 251 in support of this proposition. Further, the appellant submitted that sentences well in excess of those imposed in this case have been upheld on appeal where offenders with significant mitigating factors have committed offences involving substantially smaller quantities than the case at hand. In support of this proposition, the appellant referred to Lynch v The State of Western Australia [2011] WASCA 243; Haasy v The State of Western Australia [2010] WASCA 207 and Cant v The State of Western Australia [2009] WASCA 188.

36 The respondent did not dispute these propositions. The respondent's counsel, in argument before this court, accepted, having regard to the recent decision of The State of Western Australia v Littlefair [2013] WASCA 177 and the analysis of the cases undertaken there, that the individual sentences imposed upon the respondent fell below the sentences that were customarily imposed and were inconsistent with established sentencing patterns (appeal ts 21).

37 I will not summarise each of the authorities cited in this appeal. It is sufficient to observe, having re-read them, that it is correct to say that the individual sentences imposed in this case fell below the range of sentences customarily imposed for like offending.

38 Of course, the fact that an individual sentence falls outside the range of sentences customarily imposed does not, of itself, compel the conclusion that the sentence is erroneous. The range of sentences imposed in other cases is only one factor to be considered in deciding whether a particular sentence is manifestly inadequate. What must be considered is all of the facts and circumstances of the particular case.

39 The general principles relevant to sentencing offenders who deal or traffic in methylamphetamine are in no doubt: Galbraith v The State of Western Australia [2011] WASCA 70 [24] - [25] (Buss JA, McLure P agreeing). Those principles are as follows:

(a) The major sentencing considerations are personal and general deterrence.

(b) Although the weight and purity of the drug in question are not, generally, the chief factors to be taken into account, they are nevertheless important because the quantity and purity of the drug is directly relevant to the harm it can cause.

(c) The nature and level of the offender's participation in a drug transaction and whether the offending was committed for commercial gain are matters of significance. With respect to the question of commercial gain, whether the offending was motivated to pay off a drug or some other debt is not mitigatory. Such conduct remains selling drugs for a commercial purpose.

(d) Because of the emphasis on deterrence, matters personal to an offender will generally carry less weight, but they are not to be ignored.

40 It is unnecessary to repeat the circumstances of each offence. Count 1 involved the respondent selling a considerable quantity of high purity methylamphetamine for a financial benefit. The text messages, both before and after the sale, showed no reluctance on the respondent's part. Indeed, the respondent conducted himself with a degree of enthusiasm and gave the impression of professionalism. Given the purity of the drug, it is clear that the respondent's supplier was high up in the drug hierarchy. There was an obvious potential for the drug to be cut, thus amplifying its potential harm.

41 The facts and circumstances of count 2 show that count 1 cannot be regarded as an isolated offence. Again, the respondent engaged enthusiastically with the undercover officer, offering to sell an even greater quantity of methylamphetamine than in the first transaction, for a considerable outlay of money. By his plea, the respondent admitted to making an offer to sell the methylamphetamine with an intention that the offer be regarded as genuine: Floyd v The State of Western Australia [2013] WASCA 33. The objective evidence was that the respondent led the undercover officer to believe that the transaction would proceed.

42 As the appellant did not challenge the assertion made on behalf of the respondent, that the respondent had forgotten about the arrangement he had made, and her Honour did not query it, the respondent must be sentenced on that basis. That basis was, it must be said, very generous to him, given that when he was found by the police he was found close to the arranged meeting place and he had, less than two hours before, confirmed the transaction with the officer.

43 With respect to the respondent's personal circumstances, I have already observed that the respondent could not be said to be of prior good character. The impression that the learned sentencing judge had, that the respondent was naïve, is not borne out by his criminal history and his negative peer associations. Having regard to the conclusions in the pre-sentence report concerning his risk of recidivism, the respondent's prospects of rehabilitation must be guarded, at best. Although it is favourable to the respondent that he has a good and supportive family, it must be said that, despite their obvious concern for him, the respondent has not responded to their example and they have been unable to modify his criminal behaviour.

44 In any event, even taking the most optimistic view of the respondent's antecedents, they cannot, in the light of the general principles to which I have referred and the circumstances of this case, count for much mitigation.

45 Taking all of the circumstances into account and with great respect to the learned sentencing judge, the individual terms of imprisonment imposed upon the respondent were manifestly inadequate. The circumstances of each offence were serious, the sentences imposed were inconsistent with established sentencing patterns by some way, and the respondent's personal circumstances could not reasonably justify the lenient nature of the sentences. I have arrived at this conclusion, notwithstanding the respondent's fast-track pleas of guilty and his relative youth. In my opinion, the individual sentences were not proportionate to the gravity of the offending and did not properly reflect the seriousness of what the respondent did. Moreover, they did not provide sufficient personal or general deterrence.

47 The totality principle is well known. McLure JA (as she then was) described it in these terms in Roffey v The State of Western Australia [2007] WASCA 246:

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: Woods v The Queen (1994) 14 WAR 341.

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: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).

The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260) [24] - [26].

48 The respondent's overall offending was plainly serious. The quantities of methylamphetamine involved in the offences were considerable. The respondent committed the offences for financial gain. The offences were entirely separate and, in the circumstances of this case, required some cumulacy. The total effective sentence of 2 years' imprisonment did not properly reflect the respondent's overall criminality. I would uphold this ground.

49 As grounds 2, 3 and 4 have been upheld, implied error has been established and accordingly this court's power to re-sentence the respondent has been enlivened. The court has at its disposal all the materials necessary to re-sentence the respondent. Adopting the same discount as her Honour gave under s 9AA of the Sentencing Act and taking into account such mitigation as may be allowed for the circumstances of the offending, the respondent should be sentenced, on count 1 to 3 years' imprisonment and on count 2 to 2 years' imprisonment. The sentence on count 2 should commence 1 year 6 months after the commencement of the sentence on count 1, thus the total effective sentence I would impose upon the respondent is 3 years 6 months' imprisonment: see example 3 in the table contained in s 94 of the Sentencing Act. I would not interfere with her Honour's orders for parole eligibility and backdating.

50 I acknowledge that, in a State appeal against sentence, this court has a residual discretion not to interfere with the sentences imposed upon the respondent, even though the grounds of appeal have been made out. It has not been submitted that the residual discretion should be invoked in the respondent's favour, and I can see no reason to do so. This court's intervention is required to maintain proper standards of sentencing for offences of this kind.

51 For the reasons that I have given, I would make the following orders:

1. The appeal is allowed.
2. The sentences imposed by her Honour Judge Braddock are set aside and, in lieu thereof, the respondent is sentenced on count 1 to 3 years' imprisonment and on count 2 to 2 years' imprisonment.

1. The term of imprisonment on count 2 shall commence 18 months after the commencement of the term of imprisonment on count 1.
2. The respondent is eligible for parole.
3. The sentence shall commence on 24 January 2013.