Court of Appeal (WA)|2007-01-19|Before: Smith JA

VAGH -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 17 (19 January 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : VAGH -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 17

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Appeal - Criminal law and procedure - Appeal against sentence - Aggregate sentence of 6 years' imprisonment - Three offences of possessing prohibited drug (methylamphetamine, ecstasy and LSD) - One offence of possession of ecstasy - One offence of possession of cannabis - One offence of possession of smoking implement - Inadequate grounds of appeal - Appeal against severity of aggregate sentence - Whether sentencing Judge failed "to fully inform herself" by not ordering a presentence report - Totality

Colangelo v The State of Western Australia [2004] WASCA 294

Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Dixon v The State of Western Australia [2006] WASCA 255

Garrett v The State of Western Australia [2006] WASCA 279

Hapke v The State of Western Australia [2006] WASCA 188

Heppener v The Queen, unreported; CCA SCt of WA; Library No 4669; 1 October 1982

Howell v The Queen (1989) 2 WAR 60

Jarvis v The Queen (1993) 20 WAR 201

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048

Moore v The State of Western Australia [2006] WASCA 121

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Quach v The Queen [1999] WASCA 210

R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998

Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473

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

Thompson v The Queen (1992) 8 WAR 387

Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363

Woods v The Queen (1994) 14 WAR 341

Yarran v The Queen, unreported; CCA SCt of WA; Library No 940535; 27 September 1994

Yazdani v The State of Western Australia [2006] WASCA 221

Chivers v The State of Western Australia [2005] WASCA 294

Fowler v The Queen [2002] WASCA 296

Grimwood v The Queen [2002] WASCA 135

Leonard v The Queen, unreported; CCA SCt of WA; Library No 990152; 29 March 1999

Little v The Queen [2001] WASCA 87

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

McKeagg v The Queen [2001] WASCA 99

Mill v The Queen (1988) 166 CLR 59

R v Gallagher (1991) 23 NSWLR 220

R v Perrier (No 2) [1991] VicRp 38; [1991] 1 VR 717

SinagraBrisca v The Queen [2004] WASCA 68

Worth v The Queen [2001] WASCA 303

Worthington v The State of Western Australia [2005] WASCA 72

"X" v The Queen [2000] WASCA 355

1 ROBERTS-SMITH JA: This appeal is against an aggregate sentence of 6 years' imprisonment (with eligibility for parole) imposed by Deane DCJ in the District Court at Perth on 5 April 2006, following the appellant's pleas of guilty to three offences of possessing prohibited drugs with intent to sell or supply and to three further drug offences by way of a notice under s 32 of the Sentencing Act 1995 (WA).

2 The first three offences, charged on indictment, were that on 10 May 2005 the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) ("MDA") (count 1); that on 10 May 2005 he had in his possession a prohibited drug, namely LSD, with intent to sell or supply, contrary to s 6(1)(a) MDA; and that on 21 April 2005 he sold a prohibited drug, namely MDMA (ecstasy) to another contrary to s 6(1)(c) MDA.

3 The offences charged by way of a s 32 notice were possession of a prohibited drug, being MDMA (count 4); possession of a prohibited drug, namely cannabis (count 5); and possession of a smoking utensil (count 6).

Count 1 - 3 years 9 months' imprisonment;

Count 2 - 1 year 8 months' imprisonment to be served concurrently with that on count 1;

Count 3 - 2 years 1 month imprisonment to be served cumulatively upon the term on count 1;

Count 4, 5 and 6 - 2 months' imprisonment for each of the offences, to be served concurrently with each other but cumulatively upon the term imposed on count 3.

5 The total sentence was accordingly one of 6 years' imprisonment.

6 The appellant's appeal notice was filed on 26 April 2006. Leave to appeal was granted by Wheeler JA on 3 August 2006.

7 The facts were as follows. Chronologically, count 3 should be dealt with first. On 21 April 2005, a co-accused, one Mr Dass, negotiated an arrangement to supply a person with 98 ecstasy tablets to a total weight of 30.65 grams at a cost of $2350. After that agreement was made, Dass contacted the appellant and arranged for him to go to Dass' home address. The latter then provided the appellant with the 98 tablets and gave him instructions about when and where to attend to effect their sale.

8 The appellant then went to the car park of the Alexander Heights Shopping Centre in Mirrabooka as instructed and met with another person to whom he supplied the 98 tablets. In return for the tablets, the appellant received the $2350 for the sale and later returned those funds to Dass.

9 At 5.50 am on Tuesday 10 May 2005, detectives from the Major Fraud Squad went to the appellant's address and executed a search warrant under the Misuse of Drugs Act. In the walk-in wardrobe of the appellant's bedroom they found a black bomber jacket belonging to him. Inside the padded sleeve of the jacket, detectives found three clip-seal bags containing white crystal methylamphetamine. In the same jacket sleeve they found a silver aluminium wrapping containing 58 LSD trips.

10 The appellant was interviewed on video at the time of the search and admitted that the drugs were in his possession.

11 Whilst detectives were searching a drawer in the kitchen cupboard of the house, the appellant told police there was a clip-seal bag in there containing white crystal methylamphetamine. He was questioned on video in relation to that but said only that he had pointed it out to them and did not want to say anything further.

12 Police officers also located electronic scales in the kitchen and the main bedroom and found bundles of small clip-seal bags in various locations in the house. In the main bedroom the officers found $925 in cash.

13 The total weight of the crystal methylamphetamine was 4.76 ounces (or 133.3 grams) with a purity varying between 15 to 17 per cent.

14 During the search, detectives were searching a television cabinet in the living room area where they located a canister containing a plastic clip-seal bag which in turn contained cannabis head material. Also found on the cabinet was an ecstasy tablet in a clip-seal bag. Interviewed on video, the appellant admitted to possessing both the cannabis and the ecstasy tablet for his own use.

15 Upon searching a laundry cupboard, detectives found a ceramic smoking implement. Asked about that on video, the appellant said he regularly used it to smoke cannabis and would have continued to do so had it not been seized by police.

16 Also inside a drawer in the kitchen, detectives found a plastic clip-seal bag containing four ecstasy tablets. Again, the appellant said these were for his own personal use.

17 The statutory penalty for each of the offences on the indictment was a fine of $100,000 or 25 years' imprisonment, or both. The statutory maximum penalty for possession of the cannabis was a $2000 fine or 2 years' imprisonment or both; that in relation to the possession of MDMA was a $3000 fine or 3 years' imprisonment, or both. That is also the statutory maximum penalty for possession of a smoking implement.

18 In his plea in mitigation, Mr Hall, counsel for the appellant, before the sentencing Judge, accepted the appellant's pleas were not technically fast-track pleas of guilty but asked that her Honour treat them as early pleas. The appellant had been charged together with Dass, with a Commonwealth offence, to which he had entered a plea of not guilty. That was a charge of importation of a prohibited drug. It was because of that and also because of some delays in relation to the provision of certain evidentiary material that the appellant had not pleaded guilty earlier. Mr Hall submitted it was always the appellant's intention to plead guilty to these charges. The State prosecutor pointed out that the pleas were entered only on 29 November 2005 so they could not possibly be called early pleas of guilty. Nonetheless, the prosecution accepted they were pleas of guilty and mitigation must of course attach to that, but the submission was that they were certainly not early pleas of guilty. She submitted the explanation for the delay was rather that the appellant was waiting to see how strong the State case was before pleas of guilty were entered, than always intending to enter pleas of guilty.

19 After some further discussion the sentencing Judge said the pleas could not possibly be regarded as fast-track pleas of guilty but out of fairness she would extend as much mitigation in relation to them as she sensibly and properly could. Mr Hall then continued his plea in mitigation.

20 He informed her Honour that the appellant was then 22 years of age and had no prior record. He had been born in South Africa on 5 November 1983 and moved to Australia with his family when he was 10 months' old. He lived in Perth with his mother, father, two sisters (one 21 and the other 16 years of age) and now with two young brothers (one four and the other two years old).

21 Counsel told her Honour that the appellant lived at various addresses when the family first arrived in Australia. He went to various primary schools and did his secondary education at a suburban senior high school where he completed year 12. Until around 2005, the period of these offences, throughout his teenage years and up until the age of 21, the appellant had no involvement in criminal behaviour at all. He comes from a very strict Muslim background. His family are devout Muslims and his father has lectured in Islamic studies.

22 At that point her Honour interjected to say that the background so far outlined made the offences even more difficult to understand. She said that one would have thought that in terms of the appellant's upbringing, which no doubt had a strong religious component, not only would the family regard this conduct as quite abhorrent in terms of the law, but also in relation to their religious beliefs. Counsel said the appellant was very aware that he had brought a lot of shame upon his family, particularly his parents. He said it was relevant that the appellant had grown up in a very strict environment where there was no alcohol, there were curfews and he had to obey rules. There were certainly no drugs. There was strong emphasis on study and education and the appellant grew up in a tight-knit Muslim community. What happened was that after the appellant finished year 12 his grades were not "quite up to scratch". He went to TAFE where he completed a Certificate and Diploma in Information Technology and then managed to get into university and was at that stage currently studying communications at Edith Cowan University. He had almost completed a second year of a three year course.

23 In 2003, whilst at university, the appellant met his future wife, a Muslim girl. She is from a Malaysian background. It was in the following year of 2004 when there were wedding preparations on foot that things started going off-track for the appellant. His family were not necessarily happy about the arrangements for his marriage. His fiancée was not from the same background as they were. Although she was Muslim, she was Malaysian and there were disagreements about how the wedding was going to take place and the arrangements for it. The appellant's father in particular, wanted it done in a certain traditional way with a big celebration involving all the local community. The appellant on the other hand, wanted some say in his own wedding. He wanted it to be low key and held later than everyone else. There was also some conflict because his wife's family wanted it done in a different way again. This all created a lot of tension and, as a result, there were arguments between the appellant and his father, the consequence of which was that the appellant left home.

24 At that point counsel referred to a reference of just over three pages from Mr David MacLean, a solicitor who had acted for the appellant in relation to these matters. Mr MacLean's wife is the appellant's mother's cousin. Mr MacLean stated that he has known the appellant since 1999 and he knows and respects the appellant's parents and the other members of his family. He related in some detail his impressions of the family and some of the customary and cultural influences upon their lives. In particular, he wrote of his awareness that when young people in the appellant's family "fall out" with their parents, they leave the family home and the parents have nothing to do with them until they comply with the parents' wishes. He explained some of the strict constraints which apply within the family.

25 Her Honour said she understood counsel's submission based on this information to be in effect, that the appellant was ill-equipped to cope in a world which offers a lot of pitfalls and difficulties. Counsel concurred, adding that the appellant was somewhat naive and impressionable. He said a friend at university had offered him accommodation. He stayed with that person and began associating with him and the latter's friends at a time when he was cut off from his own family and community. The appellant was 21 years of age and now had this "taste of freedom" for the first time in his life and was being introduced to things which were new to him, such as alcohol and drugs. Counsel said that was how the appellant became involved in drug use. His flatmate and the friends were all involved in recreational drugs. The appellant became curious about it and himself came to use drugs.

26 Through his flatmate the appellant met Dass, the co-accused in the Commonwealth matter. Dass was the flatmate's cousin and was frequently at the house. The appellant got on very well with him and they became good friends. Counsel submitted that Dass was the dominant personality.

27 Dass had an oil importation business and was also involved in drug dealing. Dass offered the appellant a job helping him in the oil importation business, just part-time doing odd jobs. For example, when a shipment would arrive, the appellant would help Dass unload it and take it to storage. He would also deliver oil, go to the bank and do other various tasks.

28 Through the appellant working for Dass they became even closer. The appellant became aware during this time that Dass was involved in drug dealing and was also using drugs at a recreational level. He was present when Dass dealt in drugs. It was a progressive involvement. From working with Dass in his oil business, then being progressively exposed to drugs and using them himself, he became involved in the actual drug dealing. Counsel said the appellant explained it gave him self-esteem.

29 Dass would have the appellant drop off drugs for him. That was the context of the ecstasy charge. They were under surveillance and there were police phone taps. On that particular occasion, Dass arranged the deal completely and then called the appellant to be the courier. The appellant collected the 98 ecstasy tablets and drove them to an undercover police officer, took the money and gave it to Dass. On that occasion he made no financial gain for himself, although he did accept he made financial gain in other transactions.

30 His involvement did progress and he became more entrepreneurial. Counsel submitted that in hindsight the appellant considered that Dass had cleverly manipulated him. Dass began putting the drugs at the appellant's house rather than having them at his own premises. The appellant did not complain about it but in hindsight could see why Dass did that.

31 Also, Dass would sell the drugs to the appellant on credit. The appellant would then distribute them, pay Dass and if he made a margin, he would keep the profit. Counsel accepted that the appellant's involvement definitely had a commercial aspect. Part of the motivation was that he was a student and had to pay his own fees.

32 Counsel said the appellant fully admitted that he had totally got caught up in the drug scene and admitted there was "a certain thrill to it" and that he felt accepted.

33 The police surveillance operation continued after the sale of the ecstasy tablets to the police officer. It was not until almost four weeks later that police searched the appellant's house and found the drugs and other items.

34 Mr Hall submitted that the appellant had been cooperative with the police and indeed had supplied them with information in relation to Dass as a result of which they found a firearm on Dass' premises.

35 The State prosecutor confirmed that was so, although there was no letter of comfort from the police in relation to it. There was a certain amount of information provided by the appellant against his co-accused not related to the actual drug charges, but which did lead to the finding of a firearm. That was where it ended. There was no letter of comfort but there was assistance.

36 Counsel for the appellant then continued with his plea. He said that notwithstanding the great shame and disappointment the appellant's conduct had caused his family, they were still supportive of him. He was no longer using drugs. He had continued with his studies at the end of 2005 and passed all the exams which he sat in November and December that year. The appellant had also been working at two jobs as a Pizza Hut delivery driver and at a charity call centre. He was someone who had always worked and never been reliant on social security.

37 In her submissions in reply, the State prosecutor submitted an immediate term of imprisonment was the only appropriate disposition. The 133.3 grams of methylamphetamine was some 70 times above the presumptive amount. She said that street sale purity would range from 3 per cent up to about 20 per cent, which would be extremely high grade street level amphetamine, so that in this case the appellant was selling "just very good grade methylamphetamine" to people for their own consumption. The LSD content of the 58 tablets was almost 174 times above the presumptive amount for that drug. In addition, there had been found cash, electronic scales and small bundles of clip-seal bags. These were the usual accoutrements of dealing. The prosecutor submitted the appellant was obviously getting the drugs himself, cutting them down and then bagging them. So not only was he receiving them from Dass, but he was cutting them for his own commercial use. She submitted that contention was clearly supported by the telephone intercepts, the transcripts of which were in the prosecution brief. The telephone that the appellant used for all of those calls with Dass was not subscribed to him. The phone was registered in a false name in order to lessen the prospect of detection.

38 The State prosecutor referred to the judgment of Pidgeon J in R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998 and said it was the State position that the appellant was acting as an outright dealer in the third category identified by Pidgeon J and in fact that was the main gist of his commercial business, and that he was certainly also acting in the second category. That could be seen with his relationship with his co-accused and selling bulk for further distribution.

39 Finally, the State's submission was that it was patently obvious that the appellant was higher up in the drug chain hierarchy and should be sentenced as having a full and sophisticated commercial interest in the sale of drugs.

40 Her Honour then raised a number of matters with counsel for the appellant, arising out of the prosecution submissions. Counsel suggested that perhaps he could address her Honour in respect of one of those on the sentencing day. Her Honour said he could do so if he thought something turned on it and went on (AB 67):

"... so the question now is fixing the sentencing day. I really don't think a pre-sentence report is necessary. I know as much as I think I need to know, and I think, albeit that I clearly am required to consider suspension, in all of the circumstances I have indicated that the likelihood of that occurring is really quite negligible."

41 Her Honour then proceeded to fix a date for sentencing.

42 On that date, counsel for the appellant responded to the query that her Honour had made on the previous occasion. That was as to the use of the name "Bobby" as the subscriber to the mobile phone. Counsel said that was just a nickname by which the appellant went because his Christian name is "Bilal". That was not an Australian name and some people call him Bobby and he uses the name for that reason.

43 Her Honour then proceeded to pass sentence. Having referred to the charges and set out the facts of the various offences, her Honour continued (AB 73 - 80):

"As part of the statement of material facts the state [sic] provided the court and your counsel with a CD, onto which had been transferred 17 intercepted telephone conversations which I have now listened to with some care. You were a participant in each of those conversations, which were recorded or intercepted and recorded over a relatively short period of time. The conversations run, in some instances, for less than a minute and in other instances there are calls which are in excess of two minutes' duration. In all, there are about 30 minutes of telephone intercept product recorded.

It is quite evident in listening to those calls, when one knows the background to this matter, that you and those to whom you were speaking are using a fairly obvious form of code, with reference to drug supply and sale and drug use, as well as the quality of the particular drug under discussion. The state's [sic] submission is that when one listens to those calls there is evidence that you were operating at [sic as] what has been termed an urban dealer and someone who was on-selling amounts of drugs. On some occasions you were also acting as a courier but it is clear that you were in possession of drugs and were indicating on occasion to the person to whom you were speaking at that time what you considered to be the general quality of the particular drug in question.

I accept that in the course of those conversations LSD trips are referred to as 'tickets', ecstasy tablets are referred to as 'pebbles' and methylamphetamine is given the code name of 'soda' or 'ice-cream'. On one occasion you tell a prospective client or purchaser that you don't want that person to be unhappy with the quality of the drugs you will be selling or supplying. You discuss price on some occasions and, as I have previously said, you discuss the quality of the drug on occasion, giving it a rating out of 10.

At one point you say that you have a theory that if the quality is excellent one can do the quantity. You are referred to in at least one conversation call as Bobby and you explain to the client or prospective purchaser that at that point of that call you were in a bad situation and you had a lot of money tied up in something that you could not move or were having difficulty moving.

Arrangements are made on a number of occasions for you to go and meet with the other caller at a particular location. In one other call you say that you have just got some pebbles and the quality was apparently good, in that you refer to it as being really dry, but indicate that you don't have any soda at the time. On another occasion you refer to the quality of the drug in question as being pretty average and you say it's all clumped together, or words to that effect.

It is hardly surprising that you and those with whom you were speaking used a form of code because obviously the industry or activity in which you were engaged was highly illegal and no doubt you and your associates wished to do everything in your power to lessen or decrease your chances of apprehension should, for example, the calls be overheard or intercepted. Your counsel advised the court that the contents of those calls are clear evidence of you talking in relation to selling methylamphetamine or amphetamines, LSD and ecstasy, although it was submitted that it was not a particularly sophisticated form of code or conversation.

You are now 22 years of age, having been born in South Africa on 5 November 1983. You have lived virtually all your life in Australia, as you came to Western Australia with your family when you were only 10 months old. You are the eldest child in the family and you have four other siblings. After arriving in WA you lived in a number of suburbs and attended a variety of primary schools before completing your high school education to year 12 level.

To your credit, until this offending - which is extremely serious - you have never offended and therefore you come before this court as a first offender. Your previous good character and behaviour no doubt are a reflection of the stable, loving, albeit strict, upbringing that you have enjoyed. You come from a very close-knit family and no doubt their Muslim faith and your upbringing in that faith is another factor explaining your previous law-abiding behaviour.

Your family, the court were told, are devout Muslims and not only do you come from a tight-knit and supportive family unit but also from a tight-knit and supportive Muslim South African community here in WA. You are fortunate that despite your offending you have the support of your family, from whom you were previously estranged but you are now reconciled, and members of your family have attended court on each occasion that you have appeared before the court.

I accept that your criminal behaviour and convictions have been a source of great stress and shame for you personally as well as your family, who no doubt are at a complete loss to understand the motivation for your behaviour. This perhaps is heightened when one considers the abhorrence with which your family and the Muslim community regard drug use. You were raised in a strict and religious environment, where alcohol and drugs obviously were not permitted. You were expected to obey curfews and there was a strong emphasis on study and education.

I accept that perhaps living in the wider Australian community there was some tension because, as I have previously remarked, your peers in many instances may well have experienced greater latitude in terms of the behaviour they were allowed to engage in and the social life they were allowed to lead, and it may be that you were subject to certain expectations that some of your friends and associates did not have to meet. That certainly in no way explains your offending but it may give some perspective to how the situation developed so that you found yourself in an environment where you committed these offences.

After a little difficulty you managed to obtain a place a [sic at] university in order to study communications and in fact you have completed two years of that three year degree. It was in the course of your studies in 2003 that you met your current wife, who is also of the Muslim faith. She, however, is from a Malaysian background and it was when you were preparing for your wedding that there were some family problems. There was some concern of the difference in background between you and your fiancee, which were overcome but there remained disagreements concerning arrangements for the wedding.

It seems that your father had a particular traditional view as to how the ceremony should occur, whilst you had a different desire. The end result of this tension and associated arguments was that you left home and that, unfortunately, proved to be a very unwise decision. At that point you found yourself at 21 years of age left to your own devices in a world where, given your rather strict and protected upbringing, you were somewhat ill-equipped to cope with its pitfalls due to your naivety and impressionable nature, albeit that it is obvious that you are an intelligent young man.

You accepted an offer of accommodation from a university acquaintance and being estranged from your family and the South African Muslim community, unfortunately you began associating not only with your housemate but, more particularly, that person's circle of friends. It was in this way that you were introduced to alcohol and drugs, because these people were involved in what has been termed 'recreational drug use.'

Unfortunately, you were curious about their activities and not only did you become willingly involved in drug taking but it escalated from there into drug dealing. Through your flatmate you met his cousin, with whom you became very friendly. This person apparently is quite charismatic and you were attracted to his self-confidence and popularity, to the point where you allowed yourself to be manipulated and used by him to a degree, although you clearly knew what you were doing, and you are responsible for the consequences of the decisions that you made. You assisted this person in his oil importation business on a part time basis, doing deliveries and suchlike. As a result, you became even closer in your friendship and you became well aware that this person was not only using drugs but also involved in dealing in drugs.

Over time you became more exposed to the drug subculture through this person and no doubt although you could see what he was doing was wrong and illegal, you still held him in great esteem, particularly as to peers he made you feel important and admired. You began to drop off drugs on his behalf relevant to, for example, count 3, unaware that this person was under surveillance by police and, indeed, phone intercepts were in place. On that occasion apparently you did not stand to gain financially but you certainly did on other occasions.

You became somewhat entrepreneurial yourself in the distribution of drugs and there is no question that there was a commercial aspect to your criminal behaviour. Sadly, you admit to obtaining a certain feeling of acceptance and excitement from being involved in the drug subculture. Your involvement was relatively short but you graduated quickly to a comparatively high level of involvement in that drug world. Obviously, you were caught red handed, as it were, by police, although to your credit you have cooperated with them in a number of ways, and this is mitigatory and you will receive some credit for it.

It is also mitigatory that you are still a comparatively young man and you have excellent antecedents. On the other hand, this is extremely serious offending and it is not isolated. Further, there is a reasonable amount of a very deleterious, not to say dangerous, substance being sold and distributed in a process in which you played an important role. There is no ill-treatment or appalling circumstances in your past that might explain your terrible lack of judgment and criminal behaviour.

It cannot be said that your immaturity and, in sense, lack of worldliness really explains your behaviour and it certainly does not excuse it. You have had the advantage of an upbringing which no doubt clearly taught you right from wrong but you rejected that in favour of what you seem to have believed was a somewhat exciting and thrilling lifestyle. No doubt you now appreciate how wrong your decision making was.

To your credit, apart from studying you have also been working as a delivery driver and at a charity call centre so you do have a good work ethic and you hope in the future to complete your studies and work in your chosen field. You also hope eventually to return to live with your wife and, with the support of your family, purchase a home and raise a family yourself.

I have received a number of references written on your behalf. Your wife expresses her ongoing support for you and similar words of encouragement and support are provided by one of your brothers. The former employer where you worked as a banquet porter speaks positively of your work ethic and your ability to cope with pressure. Your employer at the Pizza Hut where you worked since July 2005 again comments on your excellent work ethic and your leadership skills and further maintains that despite your convictions, he would not hesitate to employ you again.

A person who has known you and your family for quite a number of years speaks of the remorse which you show and the hope that this person has that you can be restored in the eyes of your family. You have a good record of attending to your studies, as one of your teachers attests. Your parents write a very moving and long letter on your behalf expressing their love and support for you and mentioning a number of features that are mitigatory relevant to you and your circumstances.

A legal practitioner who knows you and your family again speaks very highly of you and expresses his disbelief upon learning that you had been arrested and charged with drug offences. The letter he writes is very detailed and insightful in a number of respects regarding the cultural conflict that it seems you have experienced on occasions growing up in what effectively are two different societies or cultures.

All of the letters are to your credit and I accept that this offending is out of character for you and I also accept that this has been a most bitter lesson for you to the point where I do not believe you are at great risk of reoffending in the future. Whilst in that sense specific deterrence is not paramount, certainly in this case, as in all cases involving drug dealing, general deterrence must be strongly emphasised.

Considering your behaviour overall and the contents generally of the conversations that were intercepted, it cannot be said that you were at the lowest end of the scale in drug dealing. That is not to say of course that you were at the highest end, but you were relatively well placed, as you were able to come into possession, particularly with respect to count 1, of a considerable amount of methylamphetamine of a relatively high or at least mid-range purity.

The use of code in the telephone conversations intercepted indicates a reasonable and indeed quite good working knowledge of the drug world and it must be said that you are an intelligent young man and although you certainly were using drugs yourself, you were by no means a hopeless drug addict as you could not have continued to work and study if that were the case.

There is no argument that this behaviour had a distinct commercial flavour to it and whilst you were certainly assisting on some occasions with the distribution of drugs, at the end of the day you were not a mere courier. Although somewhat impressed and perhaps even enamoured of your flatmate's cousin, you were not a puppet, nor were you so in his thrall or under his spell that you did not make informed and deliberate choices on your own part to become involved in drug dealing.

In sentencing you I must take into account the gravity of your offending in each instance and the statutory penalty relevant to it. I am also obliged to consider all matters mitigatory and aggravating relevant to your personal circumstances and those of your offending. I am obliged in this particular case to consider the question of totality because I must structure a sentence that is fair and not so crushing as to give you no hope for the future or to ignore your need for rehabilitation and the community's interest in seeing you rehabilitated.

It has been made plain to you previously that a sentence of imprisonment for this type and extent of offending is the only appropriate sentencing disposition. Having reached that point, it is incumbent upon the court sentencing you to consider whether or not, in all of the circumstances, they being circumstances of the nature outlined by the members of the High Court in Dinsdale v R (2002) CLR 321 [sic [2000] HCA 54; (2000) 202 CLR 321] - as to whether any sentence or sentences imposed should be suspended.

This is always a matter which must be considered in the light of the individual circumstances of the case and the individual circumstances of the offender and it is discretionary, in the sense that it is in the discretion of the court. In all of the circumstances of this case, even taking into account your excellent antecedents and comparative youth, as well as your pleas of guilty, the gravity and nature of your offending overall is simply such that suspension of any terms of imprisonment is not appropriate.

Therefore, the sentence I am about to impose, taking into account all the factors previously mentioned, is to be served immediately. I have been considerably assisted by the general comments made in the various authorities referred to by the state [sic] in their sentencing submissions. It must be said, however, and the state [sic] concede, that sentences, for example, relative to amphetamine possession and distribution vary, taking into account types, quantities, purity and value of the particular drugs involved, as well as the individual circumstances of the commission of the offences and the individual circumstances of the offenders themselves.

As I have said, your personal circumstances are important but weight must also be attached to the protection of the community and vulnerable individuals in the community from this type of offending. It has been said, quite correctly, that where general deterrence is to be stressed, it outweighs positive circumstances attending those of the offender. As you would be well aware, drug use and abuse is a very significant problem in our community and it accounts for an enormous amount of distress and misery, not only to drug users and addicts and their families and friends but it also causes distress in the wider community because it underlies the commission of many crimes, including crimes of personal violence and dishonesty.

It places a strain on community resources to repair the damage done, not only physically and emotionally to individuals, but also to property which is damaged or stolen. It involves the expenditure of police time in investigating and pursuing matters in the courts. In the end it can truly be described as a blight on society. Unfortunately, you must accept that you have played a real role in this destructive behaviour and so therefore you bear some responsibility for the matters I have just mentioned."

44 Her Honour then proceeded to impose the sentences which I have indicated above. She had regard to the statutory requirement to impose sentences that were one-third less than sentences which she would have imposed for these offences prior to 31 August 2003.

45 The appellant's grounds of appeal as set out in the Appellant's Case are:

"1. The Learned Sentencing Judge erred in law and in fact in failing to give any or adequate weight to matters relevant to mitigation of sentence:

Particulars

(i) the youth of the appellant (211/2 years old at date of arrest)

(ii) the ethnic background of the appellant which made him naive and vulnerable to exploitation by experienced drug dealers

(iii) the previous exemplary antecedents of the appellant

(iv) the appellant's co-operation with authorities

(v) the appellant's early pleas of guilty

(vi) in light of her finding that the appellant was 'not at great risk of re-offending in the future'.

2. The Learned Sentencing Judge was in error in finding that the purity of the methylamphetamine (Count 1) was 'of a relatively high or at least mid-range purity' which affected her view of the appellant's offending and denied the appellant some mitigation.

3. The Learned Sentencing Judge erred in law and in fact failing to fully inform herself in relation to the appellant's co-operation with authorities and in discounting the benefit of a pre-sentence report particularly in light of evidence of the appellant's drug taking (cannabis and ecstasy) and the likelihood that he might not acknowledge that it was problematic given his ethnic background which was a matter relevant to the sentencing discretion."

46 The grounds of appeal as formulated are inadequate and inappropriate. They purport to assert specific error, but as Ms Prince acknowledged at the hearing of the appeal, no complaint is made about the individual sentences, rather the gravamen of the appeal (she said) is a contention that the aggregate sentence was manifestly excessive.

47 Whether or not a sentence is manifestly excessive can only be gauged by seeing how the sentence falls with the established range of sentences for offences of the kind, taking into account all factors which are relevant to the offending and to the offender in the particular case. A claim that a sentence is manifestly excessive (or inadequate) is a claim of implicit (that is otherwise unidentifiable) error. It would ordinarily (if not always) be impossible to demonstrate that inadequate (or undue) weight was given to a particular factor, in the exercise of a sentencing discretion, in the absence of specific, identified error. The attribution of weight to one or more factors in a combination of factors is the very essence of discretionary judgment and (in the absence of a statutory requirement), ordinarily not to be quantified in sentencing (Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048). So the question can only be whether, having regard to all those relevant factors, the sentence imposed falls so far outside the range of sentences for offences of the kind as to lead to the conclusion that some error in the exercise of the discretion must have been made even though it cannot be identified (Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509; House v The King [1936] HCA 40; (1936) 55 CLR 499).

48 It is inappropriate to frame a ground of appeal against an aggregate sentence as one that the sentence is manifestly excessive. That is a ground which can only go to an individual sentence imposed for a particular offence. The preceding observations show why that must be so. An overall sentence which is the aggregate of a number of sentences imposed for different offences, cannot be shown to be outside any particular range. As McLure JA pointed out in Garrett v The State of Western Australia [2006] WASCA 279 at [11] (Wheeler and Roberts-Smith JJA concurring), a challenge to the length of an aggregate sentence for multiple offences that depends on an inference of implied error should be based on a breach of the totality principle.

49 Nor is it proper to formulate a ground which alleges a sentencing Judge "failed to give any or adequate weight ..." to matters in mitigation. The complaint surely must be of an identifiable error that the Judge failed to have regard to a relevant mitigating factor at all, or that the Judge did not give the factor sufficient weight. I have explained above why the latter is not a proper ground where the sentence is said to be manifestly excessive. The former is appropriately expressed as I have done so above. It should not be that the Judge "failed to give weight" to a particular factor, because it may be an entirely apt exercise of the judicial discretion to conclude that in all the circumstances of the individual case, that factor should not be given any weight. The only proper complaint as a matter of law would be that the Judge failed to have regard to the particular factor; that is to say, that the Judge failed to take it into account at all. Failure to take a relevant consideration into account at all is a failure to properly exercise a judicial discretion (House v The King (supra), per Dixon, Evatt and McTiernan JJ at 505).

50 Before dealing with ground 1, I shall first deal with the matters raised in grounds 2 and 3.

51 The remark of the sentencing Judge upon which this ground is based was that (AB 79) it could not be said the appellant was at either the lowest or the highest end of the scale of drug dealing, but was "relatively well placed" as he was able to come into possession "... of a considerable amount of methylamphetamine of a relatively high or at least mid-range purity".

52 As I understand it, the submission is that this was an error because, on the State's own concession, street level purity ranges from 3 to 20 per cent and other sentencing authorities refer to high percentages as being in the range of 58 - 80 per cent.

53 I think this ground misapprehends what her Honour was saying. Her Honour was clearly well aware that the purity of the 133.3 grams of methylamphetamine found in the appellant's possession varied between 15 - 17 per cent. She said so at the beginning of her sentencing remarks. The comment complained of has to be understood in that context and in light of what had been put to her, which included the State prosecutor's acknowledgement (AB 59) that street level purity ranged from 3 per cent to about 20 per cent. It is clear her Honour was referring to the purity of the methylamphetamine found, as falling at the "relatively high or at least mid-range" of street level purity. There was therefore no error, and there is no substance in this ground.

Ground 3 - Sentencing Judge failing to fully inform herself

54 I do not understand the proposition that there was a likelihood the appellant might not acknowledge his drug taking was problematic, given his ethnic background, to be saying anything more than that he was unlikely to tell his family or other members of his community about it because of shame. That point was made to her Honour by counsel for the appellant. Her Honour's appreciation of it is clearly reflected in her sentencing remarks.

55 The error asserted in this ground is that her Honour failed to fully inform herself in two respects: first, relating to the appellant's cooperation with the authorities, and secondly, in discounting the benefit of a pre-sentence report.

56 As to the cooperation point, the State prosecutor outlined to her Honour what that cooperation had been. It was not relevant to the charges before the court nor his co-accused's drug dealing generally. It was information which led to Dass being charged with unlawful possession of a firearm. According to the prosecutor, that was the extent of it. Her Honour said then (AB 54) that it could not be said the appellant was not cooperating in relation to his own involvement and that there was a degree of cooperation relevant to one aspect of the co-accused's situation not relating to these charges. She said she would take that into account. She subsequently did so, referring in her sentencing remarks to the appellant's cooperation with the police "in a number of ways" (AB 77).

57 Having raised the point in the course of his submissions, counsel for the appellant before her Honour made no further comment about it. He made no complaint about the extent of the information which the State prosecutor had given; he did not elaborate upon it; and he did not seek to put anything further to her Honour about it. There was simply no reason for her Honour to think there was anything more to this than had been explained to her. Indeed, there was nothing put to us which suggests there was. In these circumstances, there was no obligation upon her Honour to make any further inquiry about the appellant's cooperation with the police, and the proposition that the exercise of her sentencing discretion in some way miscarried because she did not do so is entirely misconceived.

58 As to the pre-sentence report, Ms Prince conceded the lack of a pre-sentence report cannot itself be a discrete ground of appeal. That must be correct. At most it may reinforce a submission the sentencing Judge was not sufficiently advised of the facts. In Yarran v The Queen, unreported; CCA SCt of WA; Library No 940535; 27 September 1994, an appeal was allowed on the ground that the sentencing Judge's discretion miscarried because he was not sufficiently advised of the facts because he failed to obtain a pre-sentence report. There the appellant was 21 years old at the hearing of the appeal. He had been sentenced to 18 months' imprisonment for stealing. The sentencing Judge was disposed not to make an order for parole eligibility. Counsel for the appellant made it clear she was seeking parole eligibility and she specifically asked for a pre-sentence report to advance her plea in that regard. In his judgment, Seaman J (with whom Malcolm CJ and Ipp J agreed) referred to Thompson v The Queen (1992) 8 WAR 387 at 396, in which it was pointed out that on a number of occasions the courts had stressed the desirability of obtaining a pre-sentence report where refusal to order eligibility for parole was a serious possibility. Seaman J concluded because of the appellant's youth and domestic circumstances, the sentencing Judge had erred in taking the view that no material had been placed before him to trigger his discretion to grant parole. In that way, the Judge's discretion had miscarried because he exercised it without being fully informed by way of a pre-sentence report of potentially significant matters identified by Seaman J.

59 Here, Ms Prince submits that the factors indicating the need for more information to be obtained by ordering a pre-sentence report, included that the appellant came from a closed strict Muslim family and community, a completely non-drug, non-alcoholic background, ended up in excessive "western" lifestyle and using drugs himself, and was under the thrall of Dass. There were significant cultural issues. A pre-sentence report "might have assisted" her Honour to understand issues of the appellant's maturity, motivation and veracity about his own drug use.

60 The fact is, counsel for the appellant had given her Honour a very detailed plea in mitigation, supported by letters from the appellant's wife and parents and a number of references, which addressed these issues amongst others. Her Honour's sentencing remarks reveal a full appreciation of their significance. Once again, Ms Prince was unable to show any particular matter which was likely to have been contained in a pre-sentence report and which was not in fact before the sentencing Judge. This was not a case in which there was an issue about the appellant's rehabilitation through conditional freedom on parole (cf Howell v The Queen (1989) 2 WAR 60, 66). The State had conceded that parole eligibility should be ordered and her Honour had indicated she would do that. Nothing has been shown to reinforce the contention that the sentencing Judge's discretion miscarried because she was not sufficiently advised of the facts (cf Heppener v The Queen, unreported; CCA SCt of WA; Library No 4669; 1 October 1982 at 2). Unlike the position in Yarran, no request was made that her Honour obtain a pre-sentence report. Indeed, the possibility was not even raised by counsel. It was mentioned by her Honour, really as no more than an aside, following counsel's plea in mitigation and the State prosecutor's submissions in response, on 3 March 2006. Her Honour was about to fix a date for the appellant's sentencing. She had just inquired of counsel whether he wished to say anything in reply to the State's submissions about the appellant's use of the name "Bobby", in which he registered the mobile phone. Counsel suggested he could do so on the sentencing day. Her Honour then said (AB 67):

"DEANE DCJ: Yes, you can certainly raise it if you think something turns on it. So the question now is fixing the sentencing day. I really don't think a pre-sentence report is necessary. I know as much as I think I need to know, and I think, albeit that I clearly am required to consider suspension, in all the circumstances I have indicated that the likelihood of that occurring is really quite negligible."

61 She then proceeded to fix 5 April 2006 as the sentencing date. It is entirely clear that her Honour's reference to whether or not she needed a pre-sentence report was a rumination about whether she would need to allow extra time for that to be obtained. Even then, once she had mentioned the idea, counsel made no request that a pre-sentence report be ordered. It was simply not an issue before her Honour. In light of the full submissions put to the sentencing Judge by counsel for the appellant, supported by the documentary material, that is hardly surprising.

62 In these circumstances, this ground has no substance.

63 As I have noted, there is no complaint about the individual sentences. In her oral submissions, counsel for the appellant submitted that a term of 6 years' imprisonment here offended the totality principle in that it was disproportionate to the appellant's criminality as revealed in the six offences and, or alternatively, that it was a "crushing" sentence.

64 The principle of totality requires that the aggregate sentence imposed upon an offender bear a proper relationship to the overall criminality involved in the offences, viewed in their entirety and having regard to all the circumstances of the case, including those personal to the offender (Woods v The Queen (1994) 14 WAR 341, per Anderson J at 352). The aggregate may be inappropriately long even if it cannot be described as "crushing" (Jarvis v The Queen (1993) 20 WAR 201 per Anderson J at 261; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616, 624).

65 A "crushing" sentence is one which leaves the offender with no hope for the future; or when it would provoke a feeling of hopelessness in the offender if and when he is released; or where it destroys a reasonable expectation of useful life after release (per Ipp J in Jarvis (supra) at 205 - 207, referred to in approval in Hapke v The State of Western Australia [2006] WASCA 188 at [98]).

66 The submissions made on behalf of the appellant, both before the sentencing Judge and on the appeal, relied substantially on his previous excellent antecedents, his relative youth and particular factors arising out of his ethnic and cultural background. They of course are in addition to his pleas of guilty and his limited cooperation with the police. The personal matters relating to the appellant were all undeniably strong considerations. Her Honour had regard to them. It cannot be (and is not) said that she did not. However, as Miller J (with whom Murray and McLure JJ agreed) said in Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 at [12]:

"... the learned sentencing Judge pointed out (rightly) that this Court has repeatedly said in relation to offences of drug dealing that when people are found guilty of being in possession of a large quantity of high grade methylamphetamine, the personal circumstances of the offender carry little weight in the sentencing process. Clear authority for this proposition is to be found in R v Bellissimo (1996) 84 A Crim R 465. Rowland J (at 469) made it clear that matters personal to an offender will often in cases of this nature 'play a secondary role in the sentencing process'."

67 Amphetamines are now in the same category of seriousness as heroin (Darwell (1997) 94 A Crim R 35 per Malcolm CJ at [40]). In Quach v The Queen [1999] WASCA 210 at [13], Ipp J said, of heroin:

"The prevalence and seriousness of criminal heroin use make deterrence the principal consideration in sentencing for heroin related offences. The terrible consequences to the community of trafficking in this drug are notorious. Where an offender consciously and deliberately, knowing full well what harm will be done thereby, participates (no matter in what capacity) in the heroin trade for commercial gain, it is ordinarily futile to argue that personal circumstances and antecedents have significant mitigatory force."

68 In Burns (1994) 71 A Crim R 450 at 455, Anderson J accepted that the personal circumstances of the offender and her dependents, did not, and could not diminish the seriousness of the crime and that where the crime warranted sentences of general deterrence, personal factors must be truly exceptional before they could have any worthwhile effect on sentence.

69 Although they should not be elevated to be the determinative considerations, the weight and purity of the drugs remain relevant factors to be taken into account (Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [69] - [70]; Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363 at [9] per Steytler P (Wheeler JA agreeing)).

70 The nature of the drug concerned, its harmful effects both on individual users and society generally and its prevalence are also relevant factors. In recent years courts have "firmed up" the sentences imposed for offences involving amphetamines (including methylamphetamine) to take into account their increasing prevalence (Darwell (supra)). MDMA, or ecstasy, is considered to be among the most serious drugs given its increasing prevalence and its relationship to the amphetamine family (Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 at [80]). Likewise, LSD has been classed with cocaine and heroin in terms of its dangerousness (Chick [2000] WASCA 231; (2000) 114 A Crim R 417 per Anderson J at [28] (Pidgeon and Wallwork JJ agreeing)).

71 Comparative sentences for the possession of methylamphetamine with intent to sell or supply have been set out in Tulloh and Moore v The State of Western Australia [2006] WASCA 121. There is little point in repeating that exercise here. It is sufficient to say that, making the necessary adjustments where required to accommodate the effect of the statutory one-third reduction in sentences dictated by cl 2, Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) since 31 August 2003, I am not led to the conclusion that the aggregate sentence here was disproportionate to the appellant's overall criminality reflected in the combination of offences, viewed in their entirety, and having regard to all the circumstances of the case, including those personal to the appellant. The relevant circumstances were comprehensively and accurately set out in her Honour's sentencing remarks and I do not repeat them.

72 Nor am I of the opinion that the aggregate sentence is "crushing". The appellant was 22 years old at the date of sentencing. He will be 28 years old when the fixed term expires. He will be 26 years old when he becomes eligible for release on parole. The sentence does not destroy a reasonable expectation of life after release; it does not leave him with no hope for the future; and it would not provoke a feeling of hopelessness in the appellant when he is released.

73 In my opinion, this ground has not been made out.

75 McLURE JA: I have had the advantage of reading the reasons for judgment of Roberts-Smith JA. I agree that the appeal should be dismissed generally for the reasons he gives. However, I wish to make some observations in relation to ground of appeal 1. The grounds of appeal, background facts and the sentencing Judge's remarks are detailed in the reasons of Roberts-Smith JA and not repeated here.

76 The assertion in ground 1 that the sentencing Judge failed to give any weight to the specified matters is expressly contradicted by the sentencing Judge's remarks. Further, there is no merit in the alternative claim that the sentencing Judge failed to give adequate weight to those matters. A failure to give adequate weight to a relevant sentencing consideration only gives rise to an (express) appealable error if it amounts to a failure to exercise the discretion actually entrusted to the Court: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 330 approving the statements of Gibbs CJ in Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 at 614. That high threshold is not met in this case. However, the appellant's written and oral submissions

were in substance that the total effective sentence of 6 years breached the first limb of the totality principle which requires the judge who is sentencing an offender for multiple offences to ensure that the aggregate of the sentences appropriate for each offence is a just and appropriate measure of the total criminality of the offending as a whole: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307 - 308 per McHugh J. The total sentence must bear a proper relationship to the overall criminality involved in the various 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 at 352 per Anderson J. Thus, when considering totality the Court takes into account, inter alia, all mitigatory factors including those relied on by the appellant. However, in cases such as drug trafficking where the dominant sentencing considerations include general deterrence and the protection of the community, mitigatory factors have a diminished weight: Woods v The Queen (1994) 14 WAR 341 at 346; Marchesano [2000] WASCA 225; (2000) 116 A Crim R 237 at 243; The State of Western Australia v Andela [2006] WASCA 77 at [16] - [17].

77 As the sentencing Judge correctly observed, the appellant's conduct involved extremely serious offending; it was not isolated, it involved a reasonable amount of dangerous drugs and he played an important role in their distribution. There was a commercial aspect to his criminal behaviour which was somewhat entrepreneurial. Having regard to these matters together with the mitigating factors it cannot be said that the total sentence was disproportionate to the criminality of the conduct as a whole or outside the range of sentences imposed in this State: see Colangelo v The State of Western Australia [2004] WASCA 294; Yazdani v The State of Western Australia [2006] WASCA 221; Dixon v The State of Western Australia [2006] WASCA 255. The appeal must be dismissed.

Legislation Amendment and Repeal Act 2003

Colangelo v The State of Western Australia

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (144 paragraphs)

VAGH -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 17 (19 January 2007)

Parties

Legislation Cited (2)

Cases Cited (18)