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[2012] WASCA 135
Court of Appeal (WA)
2012-07-06
Buss JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : CHU -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 135
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Criminal law - Application for leave to appeal sentence - Sold or supplied prohibited drug to another - Possessed prohibited drugs with intent to sell or supply to another - Whether sentencing judge failed to take into account mitigating factors - Whether appellant denied procedural fairness - Whether sentences manifestly excessive - Alleged combination of errors - Totality principle - Turns on own facts
Birch v The State of Western Australia [2011] WASCA 101
Chan v The Queen (1989) 38 A Crim R 337
Fullgrabe v The State of Western Australia [2006] WASCA 138
Lynch v The State of Western Australia [2011] WASCA 243
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McLean v The State of Western Australia [2011] WASCA 60
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Vagh v The State of Western Australia [2007] WASCA 17
Wilson v The State of Western Australia [2010] WASCA 82
2 MAZZA JA: This is an application for leave against sentence.
3 The appellant was charged on indictment as follows:
(1) On 2 November 2010 at Balga, [the appellant] sold a prohibited drug, namely methylamphetamine, to another.
(2) On 12 November 2010 at Balga, [the appellant] sold a prohibited drug, namely methylamphetamine, to another.
(3) On 17 November 2010 at Balga, [the appellant] sold a prohibited drug, namely methylamphetamine, to another.
(4) On 23 November 2010 at Balga, [the appellant] supplied a prohibited drug, namely MDA, to another.
(5) On 29 November 2010 at Balga, [the appellant] sold a prohibited drug, namely methylamphetamine to another.
(6) On 29 November 2010 at Balga, [the appellant] had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
The maximum penalty for each of these offences is 25 years' imprisonment and/or a fine of $100,000: s 6(1), s 34(1)(a) Misuse of Drugs Act 1981 (WA).
4 On 31 January 2012, he entered early pleas of guilty to each of these offences.
5 On 2 February 2012, the appellant was sentenced by Wisbey DCJ to a total effective sentence of 7 years' imprisonment with eligibility for parole. The sentence was backdated to commence on the day of his arrest, 29 November 2010.
6 The individual sentences imposed by his Honour were:
7 His Honour ordered that the sentences on counts 1 and 5 be served cumulatively. The rest of the sentences were ordered to be served concurrently.
8 The facts of the appellant's offending are not in dispute and can be summarised in this way.
9 The appellant and his co-accused, Ms Dang, resided together at residential premises in Balga. The premises were owned by Ms Dang. They were heavily fortified with roller shutters and security screens. Surveillance cameras surrounded the house. These cameras were linked to monitors that could be viewed from the separate bedrooms that were occupied by the appellant and Ms Dang.
10 From these premises the appellant (and it was also alleged, Ms Dang) engaged in the business of selling substantial quantities of high grade methylamphetamine. This business came to the attention of the authorities. On five separate occasions in the month of November 2010, the appellant sold and supplied drugs to an undercover police operative.
11 In respect of count 1, on 2 November 2010, the appellant sold 14 g of 52% pure methylamphetamine for $7,500.
12 In respect of count 2, on 12 November 2010, the appellant sold 28 g of 79% pure methylamphetamine for $15,000.
13 In respect of count 3, on 17 November 2010, the appellant sold 28.3 g of 65% pure methylamphetamine for $15,000.
14 In respect of count 4, on 23 November 2010, the appellant supplied one tablet of MDA to another person.
15 In respect of count 5, on 29 November 2010, the appellant sold 55.6 g of methylamphetamine which was divided into two bags. One bag contained 27.8 g of 78% purity and the other contained 27.8 g at 70% purity.
16 In respect of count 6, shortly after the transaction the subject of count 5, police executed a search warrant at the premises. Upon entry, the appellant was caught attempting to break three mobile phones. A search of the house located 101.6 g of methylamphetamine in three bags. One bag contained 11.99 g of the drug at a purity of 72%. A second bag contained 40.3 g of the drug with a purity of 23% and the third bag contained 49.4 g of the drug with a purity of 81%. The police also located some of the common indicia of drug dealing, being large clip seal bags, electronic scales, a cutting agent and a total of $159,260 in cash.
17 The total amount of methylamphetamine sold or possessed by the appellant was 227.5 g, most of which was of a high or very high grade. The appellant told the court-appointed psychologist that the drugs he sold were sourced from Sydney.
18 In his plea in mitigation, defence counsel (who was not counsel in this appeal) stated that the appellant's position was that Ms Dang was not involved at all in the offending. Indeed, she had pleaded not guilty to the charges. Defence counsel submitted that the appellant was not at the top of the drug hierarchy, but it was conceded that he was closely associated with those 'at or near the top' of that hierarchy: ts 18. It was also conceded that the appellant's role was critical in the distribution of the drugs.
19 At the time he was sentenced, the appellant was 34 years of age. He was born in Vietnam and arrived in Australia in 1996, apparently for the purpose of studying. Prior to his arrival in Australia, he had been injured in a motor vehicle accident in which he sustained fractures to his left hip and left ankle. As a result, he suffers from advanced osteoarthritis in those parts of his body: report Mr Kalnins 31 December 2007. The appellant's prior criminal history was brief. In 2010, he was convicted of possessing a smoking implement and possession of methylamphetamine. These offences were consistent with his professed addiction to the drug. It was accepted that the appellant had previously been engaged in useful and steady employment.
20 The authors of the pre-sentence and psychological reports, each expressed the opinion that the appellant minimised his offending behaviour and portrayed himself as a victim of his life circumstances. He told the pre-sentence report writer that he was 'forced' into selling methylamphetamine as a result of his own drug habit and had to repay a drug debt of $40,000. The appellant made a similar claim to the psychologist.
21 The State prosecutor expressly challenged the proposition that the appellant became involved in drug dealing to pay off a significant drug debt: ts 26. Defence counsel did not seek to try the issue. In fact, defence counsel did not in either his oral or written sentencing submissions, ask his Honour to take the matter into account as a mitigating factor.
22 The learned sentencing judge, after setting out the details of the appellant's offending and the general sentencing principles set out in the Sentencing Act 1995 (WA) said:
Here, the only mitigating factor is your early plea. I accept that it is an early plea and that you are entitled to proper credit in the sentencing exercise for that plea which demonstrates an acknowledgement by you of your criminality and a demonstration of remorse: ts 33. (emphasis added)
23 Later, his Honour referred to matters personal to the appellant. He said:
In respect to matters personal I've had the advantage not only of the very thorough and extremely helpful oral and written submissions of counsel but also a pre-sentence report and a psychological report. You're 34 years old having been born on 15 August 1977 in Vietnam. Your extended family currently reside in Sydney and in Vietnam.
It's suggested that your initial involvement with methylamphetamine came about following a friend's recommendation that it would alleviate ongoing pain from an old hip injury which you suffer. There is also a suggestion that you were forced into selling methylamphetamine to discharge a significant drug debt, but I reject that. It would have to be said that the author of the pre-sentence report and the psychologist were less than supportive of you. Essentially both persons appear to have drawn - have been drawn to the same conclusion about the extent and reason of your involvement as I have on the material before me.
Your counsel points out that you have a very brief history of drug use, do not have a significant criminal record in this State, are a person of otherwise good character and have been engaged in useful and steady employment prior to your involvement in the activities leading to these offences. As I have already indicated imprisonment to be immediately served is the only appropriate disposition and having made a reduction for your early plea, matters personal and other sentencing requirements you will be sentenced as follows ... : ts 34 - 35. (emphasis added)
The learned sentencing Judge rejected the appellant's explanation for the offending without being satisfied, beyond a reasonable doubt, that the appellant's explanation could not be accepted.
The sentences imposed were outside a sound discretionary range having regard to the weight and purity of the drugs.
24 Leave to appeal is required in respect of each ground. This court cannot grant leave to appeal unless it is satisfied that the proposed ground has a reasonable prospect of succeeding. If none of the grounds pass this test, the appeal must be taken to be dismissed: s 27(1), (2) and (3) of the Criminal Appeals Act 2004 (WA). The relevant principles applicable to appeals against sentence are well known and need not be repeated. They are conveniently set out in the judgment of the court in Wilson v The State of Western Australia [2010] WASCA 82 [2].
25 None of the proposed grounds of appeal have a reasonable prospect of succeeding.
26 To allege that a sentencing judge did not take 'proper account' of mitigating factors is to allege a weighting error. This court has said on numerous occasions, that a weighting error only gives rise to an appellable error if it amounts to a failure to exercise the discretion entrusted to the court. In the absence of a failure to exercise the discretion, a weighting error is not an independent ground which itself justifies appellate intervention. See, for example Vagh v The State of Western Australia [2007] WASCA 17 [76]; McLean v The State of Western Australia [2011] WASCA 60 [38].
27 In oral argument, the appellant's counsel was unclear as to whether the ground alleged an express or implied error: appeal ts 2. In the end, the appellant's counsel made two submissions with respect to the ground. First, it was said that his Honour's statement 'here the only mitigating factor is your early plea' should be taken literally and on this basis was an error because there were additional mitigating factors being the ones set out in the particulars in support of the ground. Second, his Honour erred by not quantifying the discount that he gave for the early plea of guilty.
28 Neither of these submissions can be accepted. In the context of the whole of his Honour's sentencing remarks, the impugned statement 'here the only mitigating factor is your early plea' should not be taken literally. It is clear from what his Honour said later in his sentencing remarks, that he took into account as mitigatory matters personal to the appellant. This is obvious when his Honour said that he had reduced the sentences for the appellant's early plea and matters personal to him. In context, the impugned statement must be taken to mean that the early pleas of guilty were the only significant mitigating factor. When viewed in this way, the statement is correct. It is a trite sentencing principle that in cases of serious drug trafficking, where general deterrence is the primary sentence consideration, matters personal to the offender carry less weight.
29 Counsel's second submission is, as a matter of law, incorrect. A sentencing judge does not, in the absence of a statutory requirement to do so, make an error of law by failing to specify the amount of the discount given for an early plea of guilty. See Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; Fullgrabe v The State of Western Australia [2006] WASCA 138 [27] - [28] and Birch v The State of Western Australia [2011] WASCA 101 [50]. The learned sentencing judge stated that he reduced the sentence for the appellant's early pleas of guilty: ts 35. He was not required to do any more.
30 This ground attacks the part of his Honour's sentencing remarks in which he said:
It's suggested that your initial involvement with methylamphetamine came about following a friend's recommendation that it would alleviate ongoing pain from an old hip injury which you suffer. There is also a suggestion that you were forced into selling methylamphetamine to discharge a significant drug debt, but I reject that: ts 35.
31 The appellant's written submission with respect to this portion of the sentencing remarks state in part:
It is not clear if his Honour is rejecting both suggestions that the appellant became involved with methylamphetamine to self-medicate and he was forced to commit the offences to discharge a significant drug debt or is his Honour only rejecting the latter suggestion .
32 In my opinion, there is no lack of clarity in his Honour's statement. His Honour is plainly rejecting the proposition that the appellant was forced into selling methylamphetamine to discharge a significant drug debt. The appellant's counsel submitted that his Honour gave no notice to counsel in the court below that he was not prepared to accept this submission and that his Honour was, as a matter of procedural fairness, obliged to do so. It was further submitted that his Honour had to be satisfied beyond reasonable doubt that the appellant's explanation should not be accepted.
33 These submissions have no merit. Whether the appellant was selling drugs to generate wealth or pay off a drug debt is of no mitigatory significance. It is still selling drugs for a commercial purpose. At its highest, the point was no more than an explanation of how the appellant came to offend as opposed to being a mitigating factor. In any event, as I have observed, defence counsel did not raise the issue as a mitigating factor in either his oral or written submissions. This is understandable given the discovery of a sum of cash in the house, far greater than the accused's alleged drug debt. It is no wonder his Honour rejected the explanation.
34 Even if the explanation was mitigatory, it was plainly challenged by the prosecution. Consequently, the onus was upon the appellant to prove the matter on the balance of probabilities: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270. There was no onus on the prosecution to prove the matter beyond reasonable doubt as asserted by the appellant. The appellant did not seek to do so and his Honour was under no obligation to take the matter any further. There has been no failure on his Honour's part to afford the appellant procedural fairness.
35 The appellant submitted that the individual sentences on counts 2, 3 and 6 were manifestly excessive. Unusually, no submission was made that the total effect of sentence offended the totality principle. The written submissions in respect of ground 4 could have been interpreted as an allegation that the totality principle had been infringed, but at the hearing of this application, the appellant's counsel said that ground 4 should not be understood in this way: appeal ts 10.
36 To determine whether an individual sentence is manifestly excessive, it is necessary to have regard to the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies in the scale of seriousness of crimes of the type being considered and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 341.
37 I do not need to repeat what I have already said about the maximum penalty, the circumstances of the offending and the appellant's personal circumstances.
38 The context of the appellant's offending was that he was a commercial dealer of methylamphetamine. His dealing had gone far beyond dealing to feed his own drug use. He admitted that he was near to those at the top of the drug hierarchy. Most of the methylamphetamine he sold or possessed was of a high to very high purity and had the potential to be cut a number of times over.
39 Other cases involving broadly similar offending are a guide to consistency but do not set the boundaries of what is a sound sentencing discretion. Each case must be considered on its own facts.
40 Lynch v The State of Western Australia [2011] WASCA 243 is relevant to the sentences of 4 years' imprisonment imposed on counts 2 and 3. In that case, the appellant pleaded guilty on the fast-track system to three counts of possession of methylamphetamine with intent to sell or supply it to another. The most serious count involved a quantity of 27.9 g of the drug with a purity of 34%. The appellant intended to sell only one-third of the drug. An appeal against a sentence of 3 years and 6 months' immediate imprisonment was dismissed. McLure P undertook an analysis of other comparable cases and concluded that although 3 years and 6 months was at the high end of the customary range, it was not manifestly excessive: Lynch v The State of Western Australia [14]. The present case is more serious given the appellant's commercial motivation and the high purity of the methylamphetamine, the subject of each of counts 2 and 3.
41 I have already referred to Wilson v The State of Western Australia albeit in another context. The case is relevant to the allegation of manifest excess in respect of the sentence of 5 years' imprisonment for count 6. In Wilson, the appellant was sentenced to 5 years' imprisonment for a count of possession of 116 g of methylamphetamine with a purity of between 9% and 39%. The appellant submitted that the sentence was manifestly excessive. This submission was rejected. As to it, McLure P and Owen JA said:
The Appellant's Case contains a table setting out details of a number of past cases in support of the proposition that the term of 5 years cannot be justified according to sentencing standards. The court is aware of those, and many other cases in which offenders have been sentenced for serious drug offences. There is a difficulty in trying to identify a range for a single offence of possessing methylamphetamine with intent to sell or supply because many, perhaps most, cases involve additional charges and the term imposed for an individual offence may have been affected by totality considerations. All that needs to be said is that, to the extent that a range can be identified, a term of 5 years cannot be said to be outside the range of sentences commonly imposed for possessing (with intent to sell or supply) methylamphetamine in the quantities and of the purities engaged in by the appellant [20].
42 It cannot be said that in light of Wilson, that 5 years' imprisonment is outside the range of sentences customarily imposed for count 6.
43 Having regard to all of the circumstances, I have not been persuaded that the individual sentences in respect of counts 2, 3 and 6 were manifestly excessive.
44 For the sake of completeness, and in fairness to the appellant, I have considered whether the total effective sentence of 7 years' imprisonment infringed the totality principle: Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [36] - [37]. Having regard to the persistent and serious nature of his offending and the need to provide general deterrence, the total effective sentence of 7 years' imprisonment was a just and appropriate measure of his criminality, notwithstanding his pleas of guilty and personal circumstances. Neither could it be said that the sentence was crushing in the sense contemplated by the principle.
45 The ground was expressed as a catch-all. It was alleged that as a result of the cumulative effect of the errors in grounds 1, 2 and 3, the sentencing discretion miscarried.
46 In the present case, as no error has been demonstrated in respect of grounds 1, 2 and 3, this ground must fail.
47 For the reasons I have given, I would make the following orders:
(2005) 228 CLR 357
(1999) 199 CLR 270