Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - State appeal against sentence - 79 offers via mobile phone text messages to sell or supply a prohibited drug over 18-month period - Prohibited drugs offered were MDMA, methylamphetamine, cocaine, GHB, cannabis - Two refusals to comply with data access orders - Appellant 18 to 19 years old at time of offending - Whether individual sentences manifestly inadequate - Whether total effective sentence of 4 years' imprisonment infringed the first limb of totality principle

CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346

Director of Public Prosecutions (Vic) v Karazisis [2010] VSCA 350; (2010) 31 VR 634

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

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

The State of Western Australia v Johnson [2010] WASCA 187

The State of Western Australia v Nillson [2017] WASCA 68

The State of Western Australia v Wilson [2015] WASCA 119

Vu v The Queen [2006] NSWCCA 188

1 JUDGMENT OF THE COURT: This is a State appeal against sentence.

2 The respondent was convicted on his pleas of guilty to 82 counts contained in an indictment. In summary, the respondent was convicted of 79 counts of offering to sell or supply a prohibited drug to another contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (MDA), two counts of failing to obey a data access order contrary to s 61(2) of the Criminal Investigation Act 2006 (WA) and one count of possession of stolen or unlawfully obtained property contrary to s 417(1) of the Criminal Code (WA).

3 The MDA offences involved offers made by the respondent to others to sell or supply MDMA (59 counts), cocaine (14 counts), methylamphetamine (four counts), GHB (also known as 'fantasy') (one count) and cannabis (one count).

4 In respect of all counts, the respondent was sentenced to a total effective sentence of 4 years' immediate imprisonment with eligibility for parole to commence on 18 November 2016. The details of the individual offences and the sentences that were imposed are set out later in these reasons.

5 The State relies on two grounds of appeal. Ground 1 alleges that nine of the individual sentences imposed for offences of offering to sell or supply MDMA were manifestly inadequate. Ground 2 alleges that the total effective sentence of 4 years' immediate imprisonment infringed the first limb of the totality principle. Leave to appeal has been granted on both grounds.

6 For the reasons that follow, we would uphold the grounds of appeal and resentence the respondent.

7 The respondent did not challenge any of the facts read to the court by the prosecutor at the sentencing hearing. They may be summarised in this way. On 12 January 2015, the police executed an MDA search warrant at the respondent's home. They seized illicit drugs and a Blackberry device. On 29 November 2015, police officers again executed a search warrant at the respondent's home situated in a suburb of Perth. The police located a number of illicit drugs and other items commonly associated with the sale and supply of illicit drugs including electronic scales, prohibited controlled weapons and numerous mobile telephones including two encrypted Blackberry telephones.

8 An iPhone belonging to the respondent was found to contain numerous text messages in which he offered to sell illicit substances to various people. The text messages were the evidence upon which each of the charges of offering to sell or supply a prohibited drug was based. The messages commenced on 3 October 2014 and continued on a regular basis until 13 November 2015.

Count 1

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 3 October 2014 the respondent offered to supply to another 50 MDMA tablets weighing approximately 12.5 grams.

Count 2

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 7 October 2014 the respondent offered to supply to another 50 grams of MDMA.

Count 3

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 8 October 2014 the respondent offered to supply to another 15 MDMA tablets weighing approximately 3.75 grams.

Count 4

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 10 October 2014 the respondent offered to supply to another 1 gram of cocaine.

Count 5

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On the same date the respondent offered to supply to another 3.5 grams of cocaine.

Count 6

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 16 October 2014 the respondent offered to supply to another 12 MDMA tablets weighing approximately 3 grams.

Count 7

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 21 October 2014 the respondent offered to supply to another 8 MDMA tablets weighing approximately 2 grams.

Count 8

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 22 October 2014 the respondent offered to supply to another 50 MDMA tablets weighing approximately 12.5 grams.

Count 9

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 23 October 2014 the respondent offered to supply to another 15 MDMA tablets weighing approximately 3.75 grams.

Count 10

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 25 October 2014 the respondent offered to supply to another 1 gram of MDMA.

Count 11

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 27 October 2014 the respondent offered to supply to another 140 MDMA tablets weighing approximately 35 grams.·

Count 12

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On the same date the respondent offered to supply to another 150 MDMA tablets weighing approximately 37.5 grams.

Count 13

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 28 October 2014 the respondent offered to supply to another 50 MDMA tablets weighing approximately 12.5 grams.

Count 14

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 29 October 2014 the respondent offered to supply to another 50 MDMA tablets weighing approximately 12.5 grams.

Count 15

MDA 6(1) (c) Offer to Sell or Supply Cocaine:

On 17 November 2014 the respondent offered to supply to another 3.5 grams of cocaine.

Count 16

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 21 November 2014 the respondent offered to supply to another 20 MDMA tablets weighing approximately 5 grams.

Count 17

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 24 November 2014 the respondent offered to supply to another 6 MDMA tablets weighing approximately 1.5 grams.

Count 18

MDA 6(1) (c) Offer to Sell or Supply Cocaine:

On the same date as in count 17 the respondent offered to supply to another 0.5 grams of cocaine.

Count 19

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On the same date as in count 18 the respondent offered to supply to another 10 MDMA tablets weighing approximately 2.5 grams.

Count 20

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 25 November 2014 the respondent offered to supply to another 50 MDMA tablets weighing approximately 12.5 grams.

Count 21

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 26 November 2014 the respondent offered to supply to another 1100 MDMA tablets weighing approximately 275 grams.

Count 22

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On the same date as in count 21 the respondent offered to supply to another 20 MDMA tablets weighing approximately 5 grams.

Count 23

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 27 November 2014 the respondent offered to supply to another 100 MDMA tablets weighing approximately 25 grams.

Count 24

MDA 6(1) (c) Offer to Sell or Supply Cocaine:

On 6 December 2014 the respondent offered to supply to another 7 grams of cocaine.

Count 25

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 13 December 2014 the respondent offered to supply to another 100 MDMA tablets weighing approximately 25 grams.

Count 26

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On the same date as in count 25 the respondent offered to supply to another 6 MDMA tablets weighing approximately 1.5 grams.

Count 27

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 17 December 2014 the respondent offered to supply to another 100 MDMA tablets weighing approximately 25 grams.

Count 28

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 19 December 2014 the respondent offered to supply to another 50 MDMA tablets weighing approximately 12.5 grams.

Count 29

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 21 December 2014 the respondent offered to supply to another 10 MDMA tablets weighing approximately 2.5 grams.

Count 30

MDA 6(1) (c) Offer to Sell or Supply Cocaine:

On 22 December 2014 the respondent offered to supply to another 0.5 grams of cocaine.

Count 31

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On the same date as in count 30 the respondent offered to supply to another 2 MDMA tablets weighing approximately 0.5 grams.

Count 32

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 23 December 2014 the respondent offered to supply to another 1020 MDMA tablets weighing approximately 255 grams.

Count 33

MDA 6(1) (c) Offer to Sell or Supply Cocaine:

On the same date as in count 32 the respondent offered to supply to another 1 gram of cocaine.

Count 34

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On the same date as in count 33 the respondent offered to supply to another 3 MDMA tablets weighing approximately 0.75 grams.

Count 35

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 24 December 2014 the respondent offered to supply to another 6 MDMA tablets weighing approximately 1.5 grams.

Count 36

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 29 December 2014 the respondent offered to supply to another 50 MDMA tablets weighing approximately 12.5 grams.

Count 37

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 2 February 2015 the respondent offered to supply to another 13 grams of MDMA.

Count 38

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 3 February 2015 the respondent offered to supply to another 100 MDMA tablets weighing approximately 25 grams.

Count 39

MDA 6(1) (c) Offer to Sell or Supply Methylamphetamine:

On the same date as in count 38 the respondent offered to supply to another 1 gram of methylamphetamine.

Count 40

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On the same date as in count 39 the respondent offered to supply to another 1 gram of MDMA.

...

Count 42

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 25 February 2015 the respondent offered to supply to another 30 MDMA tablets weighing approximately 7.5 grams.

Count 43

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On the same date as in count 42 the respondent offered to supply to another 10 MDMA tablets weighing approximately 2.5 grams.

Count 44

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 26 February 2015 the respondent offered to supply to another 500 MDMA tablets weighing approximately 125 grams.

Count 45

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 5 March 2015 the respondent offered to supply to another 200 MDMA tablets weighing approximately 50 grams.

Count 46

MDA 6(1) (c) Offer to Sell or Supply Methylamphetamine:

On 19 March 2015 the respondent offered to supply to another 3.5 grams of methylamphetamine.

Count 47

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On the same date as in count 46 the respondent offered to supply to another 1000 MDMA tablets weighing approximately 250 grams.

Count 48

MDA 6(1) (c) Offer to Sell or Supply GHB:

On 21 March 2015 the respondent offered to supply to another 8 millilitres of GHB.

Count 49

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 27 March 2015 the respondent offered to supply to another 250 MDMA tablets weighing approximately 62.5 grams.

Count 50

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 28 March 2015 the respondent offered to supply to another 50 MDMA tablets weighing approximately 12.5 grams.

Count 51

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 30 March 2015 the respondent offered to supply to another 100 MDMA tablets weighing approximately 25 grams.

Count 52

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 3 April 2015 the respondent offered to supply to another 7 MDMA tablets weighing approximately 1.75 grams.

Count 53

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 7 April 2015 the respondent offered to supply to another 100 MDMA tablets weighing approximately 25 grams.

Count 54

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 13 April 2015 the respondent offered to supply to another 100 MDMA tablets weighing approximately 25 grams.

Count 55

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 16 April 2015 the respondent offered to supply to another 500 MDMA tablets weighing approximately 125 grams.

Count 56

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 19 April 2015 the respondent offered to supply to another 2000 MDMA tablets weighing approximately 500 grams.

Count 57

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 21 April 2015 the respondent offered to supply to another 100 MDMA tablets weighing approximately 25 grams.

Count 58

MDA 6(1) (c) Offer to Sell or Supply Cocaine:

On 22 April 2015 the respondent offered to supply to another 1 gram of cocaine.

Count 59

MDA 6(1) (c) Offer to Sell or Supply Cocaine:

On 1 May 2015 the respondent offered to supply to another 1 gram of cocaine.

Count 60

MDA 6(1) (c) Offer to Sell or Supply Methylamphetamine:

On 5 May 2015 the respondent offered to supply to another 3.5 grams of methylamphetamine.

Count 61

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 8 May 2015 the respondent offered to supply to another 10 MDMA tablets weighing approximately 2.5 grams.

Count 62

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 10 May 2015 the respondent offered to supply to another 2000 MDMA tablets weighing approximately 500 grams.

Count 63

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 19 May 2015 the respondent offered to supply to another 70 MDMA tablets weighing approximately 17.5 grams.

Count 64

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 7 June 2015 the respondent offered to supply to another 10 MDMA tablets weighing approximately 2.5 grams.

Count 65

MDA 6(1) (c) Offer to Sell or Supply Cocaine:

On 19 June 2015 the respondent offered to supply to another 1.75 grams of cocaine.

Count 66

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 23 June 2015 the respondent offered to supply to another 200 MDMA tablets weighing approximately 50 grams.

Count 67

MDA 6(1) (c) Offer to Sell or Supply Cocaine:

On 11 July 2015 the respondent offered to supply to another 2 grams of cocaine.

Count 68

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 16 July 2015 the respondent offered to supply to another 40 MDMA tablets weighing approximately 10 grams.

Count 69

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On the same date as in count 68 the respondent offered to supply to another 15 MDMA tablets weighing approximately 3.75 grams.

Count 70

MDA 6(1) (c) Offer to Sell or Supply Cocaine:

On 17 July 2015 the respondent offered to supply to another 3.5 grams of cocaine.

Count 71

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 9 August 2015 the respondent offered to supply to another 100 MDMA tablets weighing approximately 25 grams.

Count 72

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 13 August 2015 the respondent offered to supply to another 10 MDMA tablets weighing 2.5 grams.

Count 73

MDA 6(1) (c) Offer to Sell or Supply Cocaine:

On 15 August 2015 the respondent offered to supply to another 1 gram of cocaine.

Count 74

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 28 August 2015 the respondent offered to supply to another 50 MDMA tablets weighing approximately 12.5 grams.

Count 75

MDA 6(1) (c) Offer to Sell or Supply Methylamphetamine:

On 16 September 2015 the respondent offered to supply to another 3.5 grams of methylamphetamine.

Count 76

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 3 October 2015 the respondent offered to supply to another 100 MDMA tablets weighing approximately 25 grams.

Count 77

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On the same date as in count 76 the respondent offered to supply to another 2000 MDMA tablets weighing approximately 500 grams.

Count 78

MDA 6(1) (c) Offer to Sell or Supply Cannabis:

On 5 October 2015 the respondent offered to supply to another 454 grams of cannabis.

Count 79

MDA 6(1) (c) Offer to Sell or Supply MDMA:

On 19 October 2015 the respondent offered to supply to another 350 MDMA tablets weighing approximately 87.5 grams.

Count 80

MDA 6(1) (c) Offer to Sell or Supply Cocaine:

On 13 November 2015 the respondent offered to supply to another 3.5 grams of cocaine.

10 On 20 February 2015, the respondent was served with a data access order requiring him to provide information or assistance to access the data on the Blackberry device seized during the search on 12 January 2015. The respondent, without reasonable excuse, failed to comply with the order (count 41).

11 On 24 March 2016, the respondent was served with a data access order requiring him to provide information or assistance to access data on one of the Blackberry devices seized during the search on 29 November 2015. The respondent, without reasonable excuse, failed to comply with the order (count 82).

12 During the latter search the police located $1,980 in cash, believed to have been unlawfully obtained by the respondent from the sale of prohibited drugs (count 81).

The sentencing hearing in the District Court

13 Prior to the sentencing hearing on 18 November 2016, the learned sentencing judge was provided with a pre-sentence report, a number of character references, including from the respondent's family, and a letter confirming the respondent's engagement with Holyoake, an organisation that provides, among other things, counselling services to persons with drug problems.

14 The author of the pre-sentence report made a number of negative observations about the respondent's attitude to his offending behaviour based on comments he made during an interview. It is unnecessary to describe these observations because, ultimately, his Honour decided not to draw anything adverse from the respondent's comments. However, the author of the pre-sentence report noted that the respondent stated that his motivation for committing the offences was 'financial gain', adding that his wages as an apprentice diesel mechanic 'did not fund his desired lifestyle'. These statements were not challenged by the respondent.

15 The respondent was represented by experienced and competent counsel. In the course of his plea in mitigation, defence counsel accepted that, during the period of the respondent's offending, he was using as much as 20 - 30 ecstasy pills per week and in excess of 6 g of cocaine per week. It was also accepted that the respondent was selling drugs during this time.[1] While it was not disputed that the offending was financially motivated, it was said the respondent 'derived very little financial benefit from his drug dealing activities'.[2]

16 Defence counsel conceded that approximately one half of the offers the respondent made to sell or supply illicit drugs was successful.[3] Defence counsel asserted that the respondent's offers to sell larger quantities of MDMA, that is, quantities in excess of 500 tablets, did not come to fruition because the respondent did not have the money to acquire the tablets, and his supplier did not trust him enough to provide him with the tablets on credit.[4]

17 Defence counsel (properly) conceded that the only appropriate sentence was immediate imprisonment, the principal question for his Honour to determine being the length of that term, bearing in mind the totality principle.[5]

18 During his offending, the respondent was either 18 or 19 years of age. He was born and raised in Perth, and has three siblings. His family is supportive. His father became a paraplegic when the respondent was 2 years old. To his credit, the respondent has assisted his father to deal with his disability. He left school in Year 10, and commenced an apprenticeship as a diesel mechanic.

19 The respondent commenced his illicit drug use in 2014, and has a history of abusing ecstasy and cocaine. He denies using methylamphetamine. A letter from Holyoake dated 15 November 2016 confirmed that the respondent attended a 10-week Young Adult Group Programme, and three sessions of individual counselling.

20 The respondent has a short criminal history as an adult, including for offences of possession of MDMA, possession of property stolen or unlawfully obtained, and assaulting a public officer.[6]

21 In this court neither party took issue with anything said in the sentencing remarks. They may be summarised as follows:

1. For a period of about 18 months, the respondent was 'part of the commercial distribution of prohibited drugs in our community'.[7]
2. The respondent probably did not actually sell the offered prohibited drug in a significant number of the counts.[8] However, '[t]here can be no suggestion that when [the respondent] offered drugs for sale, [the respondent] didn't intend to sell them if he could have'.[9]
3. The fact that, on some occasions, the respondent did not 'clinch the deal' was not of great significance.[10]
4. While general deterrence was '[o]ne of the major if not the major factor in sentencing', personal deterrence did not 'loom all that large' because, as his Honour put it, 'I hope and suspect that you've got things under control'. His Honour added, 'Everything about your past suggests to me that in the future, you won't return to doing what got you into such awful trouble over this, as I say, 18-month period of time'.[11]
5. The respondent's offending was 'pretty persistent, pretty relentless'.[12]
6. His Honour noted that in total, the offers made by the respondent involved approximately 3.3 kg of ecstasy, 31 g of cocaine, 11.5 g of methylamphetamine and 8 ml of fantasy.[13] After observing that the offences involved 'a lot of dealing over a period of 18 months', his Honour made it clear that he did not suggest that the respondent actually handled or supplied those amounts.
7. There can be no doubt that the respondent was involved in drug dealing on a commercial basis, although he had 'very little to show' for it.[14]
8. The respondent, perhaps due to his immaturity, did not fully understand the gravity of his offending.[15]
9. The respondent was remorseful and had the capacity to be a useful and productive member of the community.[16]
10. The respondent entered his pleas of guilty at the earliest possible opportunity, and was given a discount of 25% pursuant to s 9AA of the Sentencing Act for those pleas.[17]

22 His Honour took into account the totality principle. He did so, not by reducing the individual terms of imprisonment, but by ordering that the respondent serve the large bulk of those terms concurrently.[18]

23 The details of the individual sentences, including the maximum penalty applicable to each offence, are tabulated below:

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Served with a data access order on 20/2/15, after search at appellant's home on 12/1/15 and, without reasonable excuse, failed to obey that data access order

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

[Note that the Clerk of Arraigns & Indictment stated the drug to be MDMA]

Possession of stolen or unlawfully obtained property ($1980)

Served with a data access order on 24/3/16 after search at his home on 29/11/15 and, without reasonable excuse, failed to obey that data access order

Destruction of the small number of pills located in the bedroom by police during their search

Destruction of the two Blackberry phones and the one iPhone

24 In The State of Western Australia v Wilson,[19] Mazza JA set out the general principles applicable to State appeals. For convenience, we will repeat what his Honour wrote on that occasion:[20]

The general principles applicable to this appeal are uncontroversial. This court has no warrant to substitute its own opinion for that of the sentencing judge merely because it would have exercised the discretion differently: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. This court can only intervene if it is demonstrated that the court below made a material error, either express or implied. There are special principles applicable to prosecution appeals. They are well established and need not be repeated, bearing in mind that the principle of double jeopardy which applied to State appeals has now been abolished: s 41(4)(b) Criminal Appeals Act 2004 (WA). This court has residual discretion under s 31 of the Criminal Appeals Act to decline to allow an appeal against a sentence that is erroneously lenient.

As I have said, the grounds of appeal allege implied rather than express error. Before an individual sentence can be said to be manifestly inadequate or the total effective sentence be found to infringe the totality principle, it must be established that the sentence is unreasonable or plainly unjust: House v The King [1936] HCA 40; (1936) 55 CLR 499 and Barbaro v The Queen [2014] HCA 2; (2014) 236 A Crim R 116 [26].

The orthodox approach to the question of manifestly inadequacy is to examine the sentence having regard to the maximum sentence for the offence, the gravity of the offending conduct in the scale of seriousness, sentences imposed in other appellate cases and the personal circumstances of the offender: Chan v The Queen (1988) 38 A Crim R 337, 342 and Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [33].

The first limb of the totality principle requires that the total effective sentence 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: Roffey v The State of Western Australia [2007] WASCA 246 [24].

A relevant factor in the consideration of the State's grounds of appeal is the range of sentences imposed in comparable cases. Such cases are a yardstick against which the sentences in question may be compared. However, the range of sentences customarily imposed does not mark out the boundaries of the exercise of a sound sentencing discretion in an individual case. In other words, the guidance that is afforded by comparable cases is flexible rather than rigid. Ultimately, each case depends upon its own facts and circumstances.

25 We also note the recent statement of this court in The State of Western Australia v Nillson[21] in which it was said that generally where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count will fall to be assessed in light of the sentences imposed in respect of the other counts, and its contribution to the total effective sentence. This is because the effect of a heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts or, alternatively, a relatively light individual sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively. However, there will be times when it is appropriate to examine an individual sentence 'because it may have proceeded on an incorrect factual basis or it may be tainted by some other demonstrable error'.[22] We consider the present case to be one where it is appropriate to examine the individual sentences the State has challenged.

26 As we have said, the appellant relies on two grounds of appeal. Both allege implied error on the part of the sentencing judge.

27 We will repeat the details of the individual sentences that are the subject of ground 1 which the appellant claims are manifestly inadequate:

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

28 The appellant alleges that each of these sentences:

(a) failed to adequately reflect the seriousness of the offence, particularly with regard to the quantity of the drug involved;

(b) failed to adequately reflect the need for general and personal deterrence;

(c) demonstrated an undue regard for the personal circumstances of the respondent; and

(d) failed to reflect the standards of sentencing customarily observed for these offences.

29 Ground 2, which counsel for the appellant considered was the crux of the appeal, alleged that the total effective sentence of 4 years' immediate imprisonment infringed the first limb of the totality principle because it failed to reflect the respondent's overall criminality, including the respondent's persistent and flagrant criminal conduct.

30 The general principles applicable to drug dealing offences are well established and were stated in such cases as The State of Western Australia v Johnson[23] and The State of Western Australia v Baldini.[24]

31 It is enough for present purposes to note the following. The ordinary disposition, as a matter of fact, for those convicted of dealing in illicit drugs is immediate imprisonment. This is so even for youthful offenders of prior good character, or from advantaged backgrounds or who, after being charged, take positive steps towards rehabilitation and have no significant risk of reoffending. Youth remains a mitigating factor. However, the seriousness of offending of this type, its prevalence amongst young people, and the need for general deterrence can reduce the mitigatory value of youth.[25]

32 In Vu v The Queen,[26] a decision of the New South Wales Court of Criminal Appeal, the appellant was convicted and sentenced in respect of two offences, both being offences regarding participation in the supply of prohibited drugs under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). One of these counts related to an offer to supply a prohibited drug. When considering the appellant's appeal against sentence, Hall J noted that the following factors 'will often be relevant in determining the objective seriousness of an offence' under that section:

(a) The terms of the offer, in particular as to the quantity of a drug, its price, etc.

(b) Whether a particular offer is an isolated one or whether it occurs in the context of an ongoing supply of prohibited drugs.

(c) Whether, and if so, the extent to which the offer is motivated by reasons of commercial gain or greed.

(d) Whether the offeror, at all material times, had the intention to fulfil the offer.

(e) Whether the offeror had the capacity to fulfil the offer to supply.

(f) Whether the offeror attempts to fulfil the order. If not, whether any failure to perform was the result of a decision by the person concerned not to supply or whether it was due to some intervening or extraneous circumstances.[27]

33 We respectfully agree with this list of factors, although we would add that it is not exhaustive.

34 The maximum penalty for each of the offences the subject of ground 1 is 25 years' imprisonment and/or a fine of $100,000.

35 Each of the individual sentences challenged by the State concerned an offer to sell or supply a substantial quantity of MDMA for a significant amount of money. Each offence was committed by the respondent as part of an ongoing and long-term business of supplying illicit drugs. The respondent's primary motive was to obtain money to fund the lifestyle he could not otherwise afford. While it must be accepted that each offer was not in fact fulfilled, this was only because his supplier would not extend him credit for such substantial quantities of MDMA. In other words, the fact that the offer did not end in an actual sale or supply of MDMA was not as a result of the respondent deciding not to fulfil it. He clearly intended to effect each sale. It cannot be overlooked that each offer was not an isolated event.

36 This court has not been previously called upon to decide whether an individual sentence for offering to sell or supply a prohibited drug is manifestly inadequate or manifestly excessive. Thus, there are no relevant comparable cases. This is not a barrier to this court upholding ground 1. It simply means that the court has no directly comparable cases against which to measure the sentence.

37 The learned sentencing judge identified the significant mitigating factors we have mentioned. They do not need to be repeated, save that we are well aware of the respondent's early pleas of guilty and his youth.

38 In our opinion and with great respect to his Honour, each of the nine sentences challenged in ground 1 is manifestly inadequate. In other words, each sentence is, when all relevant circumstances and all relevant sentencing factors are considered, unreasonable or plainly unjust. Each offence committed by the respondent was serious for the reasons we have given. His age did not deprive him of the ability to appreciate the wrongdoing of his offending. Having regard to the need for general deterrence and the seriousness of the offending, neither the respondent's youth nor the other mitigating factors justify the imposition of the challenged individual sentences. Each sentence was substantially outside the sentencing range open to his Honour on a proper exercise of his discretion.

39 As the ground has been upheld, the respondent must be resentenced in respect of each of the nine offences. Before doing so we turn to ground 2.

40 In our opinion, ground 2 has also been made out.

41 The overall criminality involved in the offending was very serious. The respondent was engaged in the business of dealing methylamphetamine, MDMA, cocaine, GHB and cannabis for profit and with the particular aim of promoting his lifestyle. He offended frequently over a period of almost a year. Whilst not all of the offers resulted in completed transactions, it was conceded by the respondent's counsel in the sentencing proceedings that about half of the offers resulted in the substance in question being sold or supplied. Although it is not possible to calculate with precision the quantity of drugs that were sold or supplied, it cannot be said to be insignificant.

42 The appellant also twice defied data access orders. It is the experience of this court that many drug transactions are conducted by mobile telephone. It is common for data stored on mobile devices to be encrypted and password protected. The detection of this criminal activity depends, to a significant degree, upon law enforcement agencies being able to interrogate the mobile devices that are seized. The purpose of a data access order is to compel the holder of a device to divulge information in order to allow law enforcement authorities to obtain relevant data stored on the device. Such orders are made to be obeyed. Offenders who fail to comply are obstructing law enforcement authorities from undertaking their role in detecting offences. The penalty to be imposed on an offender who fails to comply with a data access order must serve as a deterrent to others.

43 As we have already said, there were mitigating factors which, of course, must be taken into account. However, when all relevant circumstances and all relevant sentencing factors are taken into account, including giving appropriate weight to the mitigating factors, notably youth, a total effective sentence of 4 years' imprisonment falls a long way short of bearing a proper relationship to the overall criminality involved in the commission of all of the offences.

44 No submission was put to the court on behalf of the respondent to the effect that if the grounds of appeal were made out, the court should nevertheless exercise its residual discretion to dismiss the appeal pursuant to s 31(4) of the Criminal Appeals Act 2004 (WA). The onus is upon the State to negate any reasons why the residual discretion should be exercised: CMB v Attorney General (NSW).[28]

45 The State has promptly prosecuted the appeal. A potentially relevant consideration is the rehabilitation of the respondent. This may be of importance when dealing with a youthful offender.[29]

46 We would not invoke the residual discretion in this case. First, appealable error has been very clearly established. This court's intervention is required to maintain proper sentencing standards and promote consistency in sentencing for drug offences. Second, as has been explained, the primary sentencing consideration, even for young offenders, is general deterrence; rehabilitation has less mitigatory weight. In this case, rehabilitation does not justify the dismissal of the appeal by reason of the residual discretion.

47 We would allow the appeal and set aside the sentencing judge's sentencing decision.

48 This court has all the materials necessary to resentence the respondent. The pleas of guilty were entered by the respondent at the first reasonable opportunity. In the circumstances, we would, as the sentencing judge did, give a discount of 25% for the pleas of guilty pursuant to s 9AA of the Sentencing Act.

49 Taking into account all relevant circumstances and all relevant sentencing factors (including the matters of mitigation we have mentioned), we would set aside the individual sentences imposed on counts 21, 32, 44, 47, 55, 56, 62, 77 and 79 and substitute the following sentences:

50 In order to take into account the totality principle, we would order that the sentences imposed on counts 56 and 62 be served cumulatively and that all the other individual sentences be served concurrently with each other and concurrently with the head sentence, being the sentence imposed on count 56. Thus the total effective sentence we would impose on the respondent is 6 years' imprisonment. The sentence should commence on 18 November 2016 and the respondent is eligible for parole. He will be eligible to be considered for release on parole when he has served 4 years calculated from 18 November 2016.

[19] The State of Western Australia v Wilson [2015] WASCA 119.

[20] The State of Western Australia v Wilson [19] - [23] (Mazza JA; Martin CJ & Buss JA agreeing).

[21] The State of Western Australia v Nillson [2017] WASCA 68 [15] (Newnes & Mazza JJA, Beech J).

[22] As to which see Giglia v The State of Western Australia [2010] WASCA 9 [40].

[23] The State of Western Australia v Johnson [2010] WASCA 187.

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

[25] The State of Western Australia v Baldini [21], [27].

[26] Vu v The Queen [2006] NSWCCA 188.

[28] CMB v Attorney General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [34].

[29] Director of Public Prosecutions (Vic) v Karazisis [2010] VSCA 350; (2010) 31 VR 634 [111].