File No : IND 917 of 2009, IND 1362 of 2009

Criminal law and procedure - Sentencing - Offender in custody on other offences prior to sentencing - Whether appropriate credit given for time in custody - Three offences relating to MDMA or methylamphetamine - Totality principle - Sentence of 6 years and 3 months not disturbed

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

Dann v The State of Western Australia [2006] WASCA 254

Dao v The State of Western Australia [2007] WASCA 237

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

Nguyen v The State of Western Australia [2009] WASCA 81

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

1 JUDGMENT OF THE COURT: This is an application for an extension of time within which to appeal and for leave to appeal against a total sentence of immediate imprisonment for 6 years and 3 months imposed on the appellant for drug offences.

2 The relevant principles on which an appellate court operates are dictated by the Criminal Appeals Act 2004 (WA) and by previous decisions of the High Court and of this court that we are bound to follow or that represent persuasive authority. Those principles include the following.

1. The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.
2. It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: House, 505.
3. Even if error is demonstrated the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing: Criminal Appeals Act s 31(4)(a).
4. An appellant must obtain leave to appeal on each ground that she or he wishes to advance in support of the appeal and the court must not grant leave unless it is satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act s 27(1) and (2).
5. To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [25] - [61], especially [56].

3 The sentences which the appellant now challenges were imposed for charges set out in two separate indictments: IND 917 of 2009 (the first indictment) and IND 1362 of 2009 (the second indictment). The appellant faced other charges which we will mention a little later.

4 Count 1 on the first indictment is a charge of conspiring to sell a prohibited drug. Little is disclosed in the sentencing materials about the facts of this charge. On 5 July 2008 the appellant conspired with another to purchase 500 MDMA tablets from the other person for $20 per tablet with the intent to sell or supply them to other persons. It was agreed that the proceeds of the on-sale of these tablets was to be shared equally between them. The appellant was arrested on 22 August 2008.

5 The second count on the first indictment is a charge of possessing a prohibited drug with intent to sell or supply it to another. On the afternoon of 22 July 2008 the appellant was observed by police in his vehicle in a car park of business premises. Police spoke with the appellant in relation to another matter and searched his vehicle. They found a clipseal bag containing 32.5 grams of methylamphetamine with a purity of 32%, $2,000 in cash in a compartment in the vehicle and $4,100 on the appellant's clothing. The money was believed to be the proceeds of selling prohibited drugs. When he was questioned the appellant admitted possession of the drug. He was taken to the police station where he participated in a video record of interview and made further admissions.

6 The second indictment contained one charge of possessing a prohibited drug with intent to sell or supply it to another. Late on the afternoon of 15 January 2009 police executed a vehicle stop on the appellant's vehicle. He was on bail for the previous two offences at the time. A search of the appellant was undertaken and $2,140 was found in a pocket of his shorts. The appellant was conveyed to his home where the police executed a search warrant issued under the Misuse of Drugs Act 1981 (WA). During the search police located a clipseal bag containing approximately 6 grams of dimethyl sulfone (a cutting agent) inside a jacket pocket in the appellant's wardrobe and a luggage bag containing clothing and a number of personal items. Among the contents of the bag was a hard case kit containing clipseal bags, syringes, scales, vials of water, approximately 71 grams of dimethyl sulfone and 10 separate clipseal bags with a total quantity of about 116 grams of methylamphetamine. One batch of the drug contained 13 grams with a purity of 39%. Other batches were of varying weights with purity measurements of between 9% and 13%.

7 A DNA analysis of personal clothing and items in the luggage matched the appellant's DNA. A fingerprint analysis of a laptop computer inside the luggage bag identified a fingerprint matching the appellant. The appellant declined to participate in a video record of interview.

8 The appellant was also facing other charges. The sequence of events is not entirely clear from the materials. At the hearing the appellant referred to some charges for offences specified in sch 2 of the Misuse of Drugs Act. In the Appellant's Case par 24 there is a table setting out 12 offences (11 of which are drug related), some dating back to 22 July 2008, for which he was later to receive concurrent sentences the longest of which was 6 months. The appellant concedes that from 22 April 2009 he was in custody in relation to those offences (or some of them) and not in relation to the offences listed in the two indictments.

9 On 6 November 2009 the appellant pleaded guilty to the three counts on the two indictments. He was sentenced to immediate imprisonment as follows:

• First indictment, count 1: a starting point of 18 months, but reduced to 15 months.
• First indictment, count 2: 2 years and 8 months.
• Second indictment: 5 years.

10 In structuring the sentence, the sentencing judge had regard to the totality principle (so as reflect the overall criminality of the appellant's conduct and to avoid imposing a term that would be crushing) and to the fact that the appellant had been in custody for a little over 6 months on some or all of the s 32 notice offences. To accommodate the totality principle his Honour ordered that the terms for count 1 on the first indictment and the sole count on the second indictment be served cumulatively but the term for the second count on the first indictment be served concurrently. Hence the total effective term of 6 years and 3 months. His Honour decided to allow the appellant a 3 month credit for the time he had already spent in custody. This explains the reduction of the sentence imposed for count 1 on the first indictment from 18 months to 15 months.

11 There are three grounds of appeal. First, the sentencing judge failed adequately to take into account the time spent in custody. Secondly, the 5 year term for count 2 on the first indictment was manifestly excessive bearing in mind where the offence fell in the scale of seriousness for offences of this type, the personal circumstances of the appellant and sentencing standards. Thirdly, the sentence infringes the totality principle because it was disproportionate to the total criminality.

12 The first ground is, we think, an allegation of express error. Grounds 2 and 3 rely on implied or inferred error.

13 Under s 87 of the Sentencing Act 1995 (WA), where an offender who is to be sentenced for an offence has previously spent time in custody in respect of that offence, and for no other reason, and the sentencing court decides that that time should be taken into account, the court may take that time into account by reducing the term that would otherwise be imposed or by backdating the commencement date of the sentence. This provision did not apply to the appellant because he had been in custody since 22 April 2009 for reasons other than the offences for which he then fell to be sentenced. It was, therefore, entirely within the general discretion of the sentencing judge whether, and if so to what extent, the time spent in custody should be taken into account.

14 A ground of appeal that contends that a factor was not 'adequately taken into account' is not a ground of appeal at all and for that reason alone it could not succeed. Be that as it may, in the circumstances of this case the challenge has no merit. The sentencing judge was not obliged to, but did, give some credit for the time spent in custody. He allowed 3 months for a total period of a little over 6 months. We cannot discern error either in the way the sentencing judge approached the question or in the result.

16 The ground relating to manifest excess is limited to the sole count on the second indictment. The appellant had in his possession a total quantity of about 116 grams of methylamphetamine with purity measurements of between 9% and 39%. This has to be seen against the background that the search of the appellant's person and his residence uncovered quantities of a cutting agent and other drug dealing paraphernalia. The offence was seriously aggravated by the fact that it was committed while the appellant was on bail on other drug related charges. While the purity of the drug was relatively low and the appellant pleaded guilty, the offence cannot be characterised as at the lower end of the scale of seriousness.

17 The appellant pleaded guilty on the fast track system. There had been some cooperation with the police. He was 34 years of age at the time of sentencing and, as the sentencing judge noted, was past the point where youth and immaturity could be raised as a mitigating factor. He had a good work history, including construction work in remote Aboriginal communities. However, a pool construction business that he had started had failed as a consequence of drug use. He had prior drug related convictions in 1996 and 1999, when fines were imposed.

18 The sentencing judge had received character references that spoke highly of the appellant and that suggested he was now motivated to give up drugs. While in custody he had undertaken some programmes to this end. The appellant submitted he was a 'user-dealer' selling drugs to finance his own addiction rather than being motivated for commercial gain. The sentencing judge characterised his involvement differently, saying it went beyond mere personal use and that the appellant was at a significant level in the hierarchy of the drug industry. The appellant was not merely dealing on the street. He was dealing significant quantities in small wholesale lots. The grounds of appeal do not challenge those findings.

19 While certain features of the appellant's personal circumstances counted in his favour, overall they were not particularly compelling. It must also be said that in cases such as this, where general deterrence is a strong sentencing consideration, personal circumstances are of less weight.

20 The Appellant's Case contains a table setting out details of a number of past cases in support of the proposition that the term of 5 years cannot be justified according to sentencing standards. The court is aware of those, and many other cases in which offenders have been sentenced for serious drug offences. There is a difficulty in trying to identify a range for a single offence of possessing methylamphetamine with intent to sell or supply because many, perhaps most, cases involve additional charges and the term imposed for an individual offence may have been affected by totality considerations. All that needs to be said is that, to the extent that a range can be identified, a term of 5 years cannot be said to be outside the range of sentences commonly imposed for possessing (with intent to sell or supply) methylamphetamine in the quantities and of the purities engaged in by the appellant.

21 In the end, manifest excess is a matter of impression. In this case, the offences were serious, the appellant's personal circumstances are not particularly noteworthy and the term does not leap off the page as being inimical to sentencing standards. The appellant has no reasonable prospect of mounting a successful argument that the sentence for the sole count on the second indictment was manifestly excessive. Leave to appeal on ground 2 must be refused.

22 The appellant contends that the total term of 6 years and 3 months offends the first limb of the totality principle; namely, that it is disproportionate to the total criminality involved in the appellant's conduct. The appellant does not call in aid the second limb of the principle; namely, that the sentence is crushing on him.

23 In his written submissions the appellant contends that the overall sentence is disproportionate to the total criminality when the total criminality involved is compared to sentencing standards in the table to which we have already referred.

24 In this respect, it has to be borne in mind that the appellant committed three separate (and serious) drug offences over a period of six months and at least one of which was committed while he was on bail for the others. The comments we have already made about the appellant's personal circumstances are relevant to this argument. However, it is apparent from the written submissions that the appellant's argument centres on the contention that the term of 6 years and 3 months does not reflect sentencing standards.

25 There would be little point in going through all of the cases mentioned in the appellant's table. However, there are some that suggest the sentence was well within the range of sentences commonly imposed for offending conduct that has some features in common with the appellant's circumstances. We mention, by way of example, Colangelo v The State of Western Australia [2004] WASCA 294, Dann v The State of Western Australia [2006] WASCA 254, Dao v The State of Western Australia [2007] WASCA 237 and Nguyen v The State of Western Australia [2009] WASCA 81.

26 The appellant has no reasonable prospect of establishing the contention raised in ground 3 and leave to appeal should be refused.

27 The appellant has not been able to demonstrate that there is a ground of appeal that has a rational and logical prospect of succeeding, or a real prospect of success.

28 The notice of appeal was lodged about two months out of time. The explanation is that the appellant always desired to appeal and was seeking legal aid. That is not a particularly satisfactory explanation. But the main difficulty the appellant faces is that he has not been able to demonstrate that there is a viable ground of appeal. Accordingly, there will be no miscarriage of justice if an extension is not granted.

29 The appropriate order is that the application for an extension of time within which to appeal be dismissed. It follows that the appeal fails.