Court of Appeal (WA)|2006-11-24|Before: Wheeler JA, Steytler P, Lure JA

Dann v The State of Western Australia [2006] WASCA 254 (24 November 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DANN -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 254

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Sentencing - Possession of 30.99 grams methylamphetamine of high purity - Appropriate range

Sentencing Legislation Amendment and Repeal Act 2003 (WA), Sch 1

The Respondent : State Director of Public Prosecutions

Angeleski v The Queen [2003] WASCA 209

Chivers v The State of Western Australia [2005] WASCA 97

Cooper v The Queen [2001] WASCA 379

Dodd v The Queen [2002] WASCA 55

Lawton v The Queen [2002] WASCA 199

R v Hafner [2002] WASCA 211

R v Roberts [2003] WASCA 203

Cameron v The Queen [2002] WASCA 81

Kaye v The Queen [2004] WASCA 227

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

Worthington v Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

2 WHEELER JA: On 14 April 2005, the appellant pleaded guilty to one count of possession of a prohibited drug, namely, methylamphetamine, with intent to sell or supply. The total amount was alleged to be 30.99 grams, comprising four distinct quantities. There was a set of three clipseal bags in the appellant's pockets, containing in total 20.7 grams. The purity of that methylamphetamine was less than 0.1 per cent, but there was dimethylamphetamine purity of 79 - 80 per cent. It was conceded on behalf of the appellant that dimethylamphetamine was a derivative of amphetamine and should be regarded in the same way for the purpose of sentencing. A kitchen drawer of the appellant's home contained 1.95 grams of methylamphetamine wrapped in duct tape. On the refrigerator was a small clipseal bag containing 0.83 grams of methylamphetamine. Inside a silver container in the lounge room were two orange tablets weighing 0.71 grams, which also contained methylamphetamine. The purity of these smaller quantities is unknown.

3 Also located at the appellant's premises were three sets of electronic scales and a metal spoon, upon which traces of methylamphetamine were later detected, together with a quantity of empty clipseal bags. A total of almost $242,000 in cash was located in various locations throughout the house and on the appellant's person. There was also some cannabis located at the time at which the methylamphetamine was found, but that was the subject of a separate charge, which had not at that stage been dealt with. The appellant was questioned in relation to all of the items found and offered no comment. He was interviewed on videotape, but refused to comment.

4 The appellant was sentenced to 6 years' imprisonment with eligibility for parole, that sentence being backdated to 28 March 2005, in order to take account of days which he had spent in custody in relation to these offences prior to sentence.

5 Although the appellant's grounds assert that the "single ground" upon which he intends to rely is manifest excess, there is also a further separate issue raised by the grounds, which is that it is asserted that his Honour did not impose a fixed term that was two-thirds of the fixed term he would have imposed, pursuant to Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA).

6 Turning to the appellant's personal circumstances, he was 28 years of age with a child from a former de facto relationship. After completion of year 10, he had started working as a blaster/labourer. He had, it was said, been using drugs since approximately the age of 12, and was an addict. It was asserted on his behalf that, although the drugs located in his possession were, in part, for sale, there was some unspecified significant quantity for his own use. As is relatively common with addicts, he had a record which included numerous dishonesty offences, together with a variety of drug offences, including a conviction for possession of heroin with intent to sell or supply in April 2000 (apparently a relatively small quantity of heroin). He had breached both supervision orders and suspended sentences in the past, and his counsel quite properly accepted that an immediate term of imprisonment was the only appropriate disposition.

7 His Honour's sentencing remarks were brief, and some clearer articulation of the way in which he arrived at the sentence imposed might have avoided this appeal. It was not necessary for much to be said, since apart from the appellant's addiction, which was of only limited relevance, and his plea of guilty, which his Honour accepted would attract a discount, there was, in effect, nothing in mitigation. The purity was accepted by the appellant's counsel as being high, and the conclusion that his Honour was required to sentence the appellant to a significant term of imprisonment was, therefore, obvious. The only issue was and is the length of an appropriate term of imprisonment.

8 In support of the proposition that the sentence imposed was manifestly excessive, the appellant refers to four cases, presumably as illustrating the appropriate sentencing range. Before I turn to those, it is desirable to refer to the sentencing framework. The maximum penalty pursuant to the Misuse of Drugs Act 1981 (WA) for an offence of this kind is 25 years' imprisonment; allowing for the effect of the Sentencing Legislation Amendment and Repeal Act 2003, the maximum penalty which therefore could have been imposed upon the appellant was 16 years and 8 months. The maximum is, of course, reserved for a case in the "worst category" of cases. So far as methylamphetamine itself is concerned, it has, on many occasions now, been recognised by this Court to be in the higher range of seriousness in the scale of drug trafficking offences: Bellissimo (1996) 84 A Crim R 465 at 471; Darwell (1997) 94 A Crim R 35 at 40. Finally, while the weight and purity of a drug are not, of course, determinative of the sentence which should be imposed, they are significant: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

at [70]; R v Hafner [2002] WASCA 211 at [23]; Dodd v The Queen [2002] WASCA 55 at [5] and [55].

9 Considering the weight and purity of the drug in question here, the fact that the appellant was obviously a dealer in the drug on more than a minor scale, and the absence of mitigation, it is difficult at first blush to see the sentence imposed by his Honour as being inappropriate. An examination of the cases referred to by the appellant reinforces the view that the sentence imposed in this case was within an acceptable range. I deal with those cases in the order in which the appellant's submissions mention them.

10 Cooper v The Queen [2001] WASCA 379 concerned an offender who had possessed with intent to sell or supply a total of 124.67 grams of methylamphetamine, ranging in purity between 12 and 20 per cent. He also had with him other drugs. He had a significant criminal history and was found to be a street dealer. He was an addict. However, he had spent some time drug-free, and had apparently relapsed at some stage prior to his offending. It was also accepted that he was the primary carer of a young child of 4 years of age. Taking account of the transitional provisions, the sentence imposed upon Cooper following his plea of guilty would have equated to one of 5 years and 4 months' imprisonment. The circumstances of Cooper and this appellant are, in many ways, comparable, save for the mitigating circumstance of Cooper's child, and the sentence imposed on Cooper was only 8 months less (post-transitional provisions) than that imposed on the appellant.

11 Lawton v The Queen [2002] WASCA 199 involved an offender who had in his possession with intent to sell or supply 146 grams of methylamphetamine. The purity ranged between two per cent and 75 per cent, and he also had some cannabis and ecstasy. Lawton had entered a plea of guilty. The sentence imposed upon him was one equivalent under the transitional provisions to 4 years and 4 months. On his appeal, the Court held that that sentence was "within the range of an acceptable exercise of discretion" (per Steytler P). If the sentence imposed upon Lawton represented the usual sentence imposed in cases of this kind, the appellant's appeal would succeed. However, it seems to me that Lawton represents the lowest end of the range of sentencing discretion for cases of this kind.

12 In R v Roberts [2003] WASCA 203, that offender had been convicted of four counts of possession of a total of 75.15 grams of methylamphetamine with intent to sell or supply, of a purity ranging between 6.2 per cent and 29 per cent. He had made a late plea of guilty and was plainly involved in the commercial enterprise of distributing methylamphetamine in the community. The actual sentences imposed upon Roberts are explicable by the peculiar circumstances of his case, since he was already serving a significant term of imprisonment in relation to other offences, so that totality issues arose. In addition, there was a deportation order issued against him as a result of his offending, which would have the result that he would lose contact with his children.

13 The appellant cites as "relevant in the present case", my observations at [11] of Roberts that "it would not have been surprising to see sentences of approximately 6 years imposed for each offence .... ". The appellant points out that, post transitional provisions, an equivalent sentence would be 4 years' imprisonment. However, the quote is, as it stands, seriously misleading, since the sentence continued " ... and an overall sentence imposed, in recognition of the criminal enterprise in which the respondent was apparently engaged, of approximately 8 years' imprisonment in total." Properly understood, then, that passage makes it clear that a sentence equivalent to 5 years and 4 months' imprisonment (after the transitional provisions) would not be unusual for a quantity of methylamphetamine where the total weight of "pure" methylamphetamine (having regard to the greater quantity, but significantly lesser purity in Roberts' case) could be regarded as roughly comparable to this appellant's.

14 Finally, the appellant refers to Angeleski v The Queen [2003] WASCA 209. That involved a sentence of 9 years, equivalent to 6 years after the transitional provisions. The offender was convicted of one count of supplying methylamphetamine and three of possession of methylamphetamine with intent to sell or supply. The quantities were very much more significant than in the present case. However, the case is a good illustration of the difficulty of applying a "tariff" for possession with intent to sell or supply of methylamphetamine based simply upon weight and/or purity. The personal circumstances of the offender in Angeleski were very unusual. He had no prior convictions and was of positively good prior character. The offences had been committed in circumstances where he was said to have been desperate for money because his wife's cancer had left her unable to help him in what had previously apparently been a successful business. In addition, the sentence imposed upon him by the Court of Criminal Appeal was one which it considered appropriate having regard to issues of parity of sentence with his co-offender, who had been sentenced in New South Wales, pursuant to different statutory provisions. The Court of Criminal Appeal, in resentencing Angeleski, had expressly noted that the sentence imposed upon the co-offender appeared to be inappropriately lenient.

15 Considering the statutory penalty, the nature and quantity of the drug, the personal circumstances of the appellant, and the cases to which the appellant has referred, it can be seen, in my view, that, while a somewhat less severe sentence would not have been inadequate, the sentence imposed upon the appellant was within an appropriate range of sentencing discretion.

16 The conclusion that the sentence imposed was within an appropriate range of sentencing discretion disposes of two other contentions made on behalf of the appellant; they being that his Honour erred in not reducing the sentence which he imposed by reason of the transitional provisions, and in not specifying the discount which he gave for the appellant's plea of guilty. So far as the plea of guilty was concerned, his Honour expressly noted that the appellant was entitled to a discount for the plea, and there is no reason to consider that he did not take that matter into account. The failure to quantify the discount was not an error of law, although, since it was effectively the only mitigating circumstance, it would have been desirable for his Honour to have done so (if only so as to avoid the potential for an issue to arise about it in an appeal). So far as the transitional provisions are concerned, they had been in operation for more than 18 months by the time his Honour came to sentence the appellant. Unlike the position in the case of Chivers v The State of Western Australia [2005] WASCA 97, there was nothing said by the learned sentencing Judge in this case to indicate that he either had omitted to take the transitional provisions into account, or intended not to make the reduction which they require. Having regard to the fact that the sentence which his Honour ultimately imposed was within an appropriate range after allowing for the transitional provisions, it may be assumed that he applied the transitional provisions, even though not specifically referring to them.

Legislation Amendment and Repeal Act 2003

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

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Judgment (39 paragraphs)

Dann v The State of Western Australia [2006] WASCA 254 (24 November 2006)

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