DILLON -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 24 (28 February 2020)

1. The above offending breached suspended imprisonment orders imposed in January 2017 in respect of offending mainly constituted by breaching violence restraining orders. The trial judge ordered that the appellant serve the terms of imprisonment that were suspended.
2. The appellant was sentenced to a total effective sentence of 8 years 2 months' imprisonment in respect of all the offending. The sentences were structured as follows:

Possession of a prohibited drug with intent to sell or supply (methylamphetamine)

Misuse of Drugs Act 1981 (WA) (Drugs Act) s 6(1)(a)

Attempted possession of a prohibited drug with intent to sell or supply (methylamphetamine)

Possession of stolen or unlawfully obtained property (cash)

Attempted possession of a prohibited drug with intent to sell or supply (methylamphetamine)

Sentencing Act 1995 (WA), s 80

1. The appellant now seeks leave to appeal against his sentences on two grounds. Ground 1 contends that the trial judge erred in sentencing the appellant to 14 months' immediate imprisonment for breach of a suspended imprisonment order when it was unjust to do so. Ground 2, expressed to be in the alternative, contends that the trial judge erred in imposing a total effective sentence that offended the first limb of the totality principle.
2. For the following reasons, neither ground of appeal has any reasonable prospect of succeeding. Leave to appeal should be refused on both grounds, and the appeal should be dismissed.

1. The trial judge made the following unchallenged findings as to the circumstances of the appellant's offending.

1. At 7.45 pm on 8 November 2016, the appellant was served with a violence restraining order protecting his former partner. The order relevantly prohibited the appellant from communicating with his former partner, or attempting to do so, by any means whatsoever.
2. Between 8 November 2016 and 4 January 2017, the appellant breached the violence restraining order by sending his former partner 288 text messages and 53 emails, making 71 phone calls and leaving 22 voice messages. The appellant yelled obscenities at his former partner in some of the voice messages.
3. These breaches of the violence restraining order caused the victim to feel intimidated and extremely frightened. The constant messages, emails and phone calls contained material that intimidated the victim and caused her to fear for her safety.
4. The appellant was arrested when police conducted a search of his residence on 17 January 2017. He participated in a recorded interview, and admitted the offending.
5. The appellant was charged with 19 counts of breaching the restraining order, each count relating to a separate day on which the conduct occurred. Often, several messages, emails or phone calls occurred on a single day.
6. On 27 January 2017, the appellant was convicted on his pleas of guilty of the breach of restraining order offences. The Magistrates Court imposed a total effective sentence of 14 months' imprisonment, suspended for 15 months, in respect of that offending. The suspended sentences which were expressed to be served cumulatively related to the offending on 3 December 2016 (4 months), 6 December 2016 (4 months) and 4 January 2017 (6 months).

1. The trial judge found that the appellant was involved in extensive drug dealing activities between February and October 2017. The appellant was receiving regular shipments of methylamphetamine from a New South Wales drug supplier named Ben Marshall, who was also referred to as the 'Preacher'. Mr Marshall would send the drugs from New South Wales to the Exmouth Post Office. They would be collected from the post office, generally by a New South Wales courier called Mr Wood, and delivered to the appellant. The appellant received packages containing about 4 ounces, or 112 g, of methylamphetamine on five uncharged occasions. The packages were delivered to the appellant by Mr Wood, who obtained $20,000 in cash for Mr Marshall on each occasion. The appellant sold the drugs at street level in 'points, grams and half-weights'.

Count 2: possession of methylamphetamine on 6 July 2017

1. On 6 July 2017, the appellant collected a postal package containing 4 ounces, or approximately 112 g, of methylamphetamine from the Exmouth Post Office, as arranged with Mr Marshall. The appellant posted a package containing $29,000 in cash to Mr Marshall as payment for the methylamphetamine. The package containing the cash was intercepted at the Perth Mail Centre on 25 July 2017. Police sent the package on its way and, on 27 July 2017, intercepted phone calls between the appellant and Mr Marshall discussing the payment.

Count 4: attempted possession of methylamphetamine on 24 August 2017

1. On 23 August 2017, police officers at the Perth Mail Centre intercepted a postal parcel containing 112 g of methylamphetamine, addressed to Mr Wood at the Exmouth Post Office. Police replaced the methylamphetamine with an inert substance and then delivered the parcel to the Exmouth Post Office. Mr Wood was arrested outside the Exmouth Post Office after he collected the parcel on 24 August 2017. The appellant was arrested at his property shortly afterwards.

Count 5: possession of unlawfully obtained property

1. When police officers arrested the appellant on 24 August 2017, a search of the appellant's property located a total of $11,560 in cash, which was the proceeds of the appellant's drug dealing activity.

Count 11: attempted possession of methylamphetamine on 27 October 2017

1. On 27 October 2017, a Mr King, acting on the appellant's instructions, posted a package containing a car door to the Exmouth Post Office. Concealed inside the door was 25 g of methylamphetamine with a purity of 70%. The appellant had arranged for an unknown person to secrete the drugs in the door, and Mr King was unaware that the door contained drugs. The appellant intended to possess the methylamphetamine when the door was sent to Exmouth, and intended to sell or supply it to others. However, police intercepted the package and located the methylamphetamine.
2. The offending the subject of count 11 occurred while the appellant was on bail for the charges which became counts 4 and 5 on the indictment.

1. The appellant was 46 years old at the time of sentencing. He was single, divorced and had three adult children with whom he had limited contact. He had worked as a carpenter, and had a successful carpentry business in Australind and later in Exmouth. The appellant's parents remained supportive of him.
2. The appellant's life started to spiral out of control after his former partner introduced him to methylamphetamine in about 2012. He has been convicted of a range of offences since that time, including for possession of methylamphetamine with intent to sell or supply to another, for which he received a suspended imprisonment order in November 2012.
3. The trial judge found that the appellant had shown no remorse or insight in relation to his offending.

1. The trial judge identified the following aggravating features of the offending the subject of the indictment:

(1) All the offences were committed while the appellant was subject to suspended imprisonment orders.

(2) The appellant committed the offence the subject of count 11 while on bail in respect of the offending in counts 4 and 5.

(3) The appellant's offending was persistent and deliberate. He was part of a syndicate distributing methylamphetamine from New South Wales to Exmouth. The appellant was a mid-level user-dealer, operating for commercial gain. He obtained substantial quantities of methylamphetamine in 4 ounce lots on at least seven occasions, which he intended to sell at street level quantities. While he was not to be punished for uncharged offending, his offending was not isolated but was part of a pattern of offending behaviour.

(4) The quantity of the methylamphetamine involved, and the purity of the drug the subject of count 11 (which meant it could be further cut and distributed).

(5) The appellant stood to make significant amounts of money selling the drugs at street level.

1. The trial judge identified the following mitigating factors in relation to the offending the subject of the indictment:

(1) The appellant participated in interviews with police and made limited admissions.

(2) The appellant pleaded guilty to count 11, which facilitated the course of justice and benefited the State. The trial judge reduced the appellant's head sentence by 5% under s 9AA of the Sentencing Act.

1. The trial judge properly recognised specific and general deterrence as significant sentencing considerations. The need for specific deterrence was indicated by the fact that the appellant was not deterred by the previous suspended sentence for possession of methylamphetamine with intent to sell or supply to another.
2. In relation to the suspended sentences, the trial judge recognised that he was required to order the appellant to serve the terms of imprisonment that were suspended unless he decided it would be unjust to do so, in view of all of the circumstances that had arisen since the suspended imprisonment order was imposed. The trial judge said:[1]

In my view, it would not be unjust to order you to serve the term of imprisonment that was suspended, having regard to your extensive drug dealing activities since that order was imposed.

1. The trial judge imposed the sentences noted in the table at [3] above. His Honour backdated the sentences to 27 October 2017, and made the appellant eligible for parole.

1. Section 78(1)(b) of the Sentencing Act required the District Court to deal with the appellant under s 80 of that Act when it convicted him of an offence, the statutory penalty for which is or includes imprisonment, and the offence was committed during the suspension period of the suspended imprisonment orders made by the Magistrates Court.
2. Section 80(1) - (3) of the Sentencing Act provides:

(1) If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of suspended imprisonment, a court that must deal with the person under this section must deal with the person by one of these methods:

(a) unless an order under this paragraph or paragraph (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;

(b) unless an order under this paragraph or paragraph (a) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended (even if the period to be served is 6 months or less);

(c) unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;

(d) it may fine the person not more than $6 000 and make no order in respect of the suspended imprisonment.

(2) The powers in subsection (1) may be exercised as often as is necessary.

(3) A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment was imposed.

1. The effect of these provisions in the present case was to require the trial judge to order the appellant to serve the terms of imprisonment that were suspended, unless his Honour decided that it would be unjust to do so in view of all the circumstances that had arisen, or become known, since the suspended imprisonment was imposed by the Magistrates Court.
2. As was recognised in Hall v The Queen,[2] the appellant carries the forensic onus of persuading this court that the trial judge erred in failing to decide that it would be unjust to order service of the suspended imprisonment. The appellant will have failed to discharge that onus if this court considers that it was open to the trial judge to fail to be so satisfied. That is, the question for this court is not whether it is of the view that it would be unjust to require the appellant to serve the suspended sentences. Rather, the question is whether it was open to the trial judge to fail to be satisfied that it would be unjust to require the appellant to serve the suspended sentences.
3. As the court also recognised in Hall,[3] there is a clear legislative policy that, in general, breach of a suspended sentence should result in the offender serving that sentence. A suspended sentence is imposed where imprisonment is the only appropriate sentencing disposition, but the sentencing court considers it appropriate to give the offender a last chance to avoid immediate imprisonment by leading a law-abiding life. It is intended to be a sanction hanging over the head of the offender which is to be activated if there is a lapse into offending. The court will not lightly interfere with the ordinary consequence of offending while subject to a suspended imprisonment order. To do so would be to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offending.
4. Of course, the legislation also recognises that there are circumstances in which the courts should refrain from requiring service of suspended imprisonment. An obvious example would be where an offender, who has otherwise been of good behaviour and achieved rehabilitation, commits a relatively trivial offence at the end of the suspension period which, while punishable by imprisonment, does not warrant the imposition of a term of immediate imprisonment.
5. In the present case, the appellant relies on the different character of his subsequent offending as mandating a conclusion that it would be unjust to require him to serve the suspended sentences. The subsequent offending was of a different character to that for which suspended imprisonment orders were made. However, the character of the subsequent offending was significantly more serious. Substantial terms of immediate imprisonment were the only appropriate sentences for the subsequent offending. That meant that the purpose of a suspended imprisonment order - to give the appellant a final chance to avoid immediate imprisonment by leading a law-abiding life - had not been achieved. In circumstances where the appellant was to serve substantial terms of immediate imprisonment for the subsequent offending in any event, it was scarcely arguable that it would be unjust to require him to actually serve the suspended imprisonment.
6. Further, the subsequent offending was not an isolated or out-of-character event. It is true that the appellant was not convicted of any relevant offence committed between 27 January 2017, when the suspended imprisonment orders were imposed, and 6 July 2017. However, the trial judge found that the appellant was involved in extensive drug dealing activities from February 2017. The appellant had persistently engaged in a commercial drug dealing operation, from a point in time shortly after the suspended imprisonment orders had been made. That fact counted strongly against a conclusion that it would be unjust to require the appellant to serve the suspended terms of imprisonment.
7. The appellant submits that the trial judge failed to have regard to the sentences imposed in respect of the counts on the indictment, the totality principle, the different character of the indicted offending and that the appellant had completed 6 months 26 days' of his suspension period when he committed the offending charged in count 2 on the indictment. There is no merit in that submission. The trial judge was well aware of the sentences he imposed for the indicted offences and the character of the relevant offending. His reasons refer to the totality principle and the relevant dates.
8. It is true that the only matter referred to in the part of the trial judge's reasons quoted at [25] above is the appellant's extensive drug dealing activities since the suspended imprisonment orders were imposed. However, the trial judge was not indicating that the drug offending was the only matter to which his Honour had regard. Rather his Honour was indicating that, in all of the circumstances, the fact that the appellant had engaged in extensive drug dealing activities was sufficient to preclude a finding that it was unjust to require the appellant to serve the suspended sentences. His Honour was plainly correct to so hold.
9. In all the circumstances, it was well open to the trial judge to fail to be satisfied that it would be unjust to require the appellant to serve the suspended sentences. Indeed, in all of the circumstances it would not reasonably have been open to the trial judge to have been satisfied that service of the suspended sentences would have been unjust.
10. There is no merit in ground 1. Leave to appeal on that ground should be refused.

1. Ground 2 contends that the total effective sentence of 8 years 2 months' imprisonment infringes the first limb of the totality principle.
2. McLure JA (Steytler P and Miller JA agreeing) summarised the totality principle in Roffey v The State of Western Australia:[4]

The legal principles relevant to the disposition of this appeal are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law.

The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.

The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.

The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up. (citations omitted)

1. The following general principles are also well established:[5]

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

(2) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(3) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(4) The real question is whether the total effective sentence imposed on the offender is unreasonable or plainly unjust.

1. In the present case, the appellant's submissions focus on the decision to accumulate the suspended sentences on the sentences imposed on the indictment. That is not the proper focus of attention. As was noted in the passage in Roffey quoted above, where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up. The real issue is whether the total effective sentence of 8 years 2 months' imprisonment bears a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the appellant personally.
2. The appellant does not take issue with any of the individual sentences for the offences the subject of the indictment. That offending conduct was, as the trial judge correctly recognised, serious. As recent decisions of this court illustrate, offending of that kind ordinarily attracts significant sentences of immediate imprisonment.[6] The appellant engaged in the persistent commercial distribution of methylamphetamine in Exmouth, and stood to make a significant profit from the activity. The offending was aggravated by being committed while the appellant was subject to suspended imprisonment orders. The appellant did not enjoy the mitigating effect of a plea of guilty to counts 2, 4 and 5. The mitigating effect of the plea of guilty to count 11 was reduced by the lateness of the plea. It was also an aggravating feature of count 11 that the offence was committed while the appellant was on bail in respect of the offending charged in counts 4 and 5. The drug offending occurred quite separately to the restraining order offences, and at least some degree of accumulation of the sentences for the different groups of offending was appropriate.
3. The maximum penalty for an offence against s 61(1) of the Restraining Orders Act 1997 (WA) is imprisonment for 2 years and a fine of $60,000. Relevant sentencing considerations for that offence were referred to by this court in Salkilld v The State of Western Australia.[7] The appellant's conduct in repeatedly breaching the violence restraining order was also persistent and deliberate, and significantly increased the overall criminality of the appellant's offending.
4. It should be noted that, while the magistrate indicated a total effective sentence for the restraining order offences, the question of the degree of accumulation of the sentences for all offences was a matter for the trial judge, pursuant to s 80(5) read with s 88 of the Sentencing Act.[8] His Honour, having ordered that the appellant serve the suspended sentences, recognised that he was required to fix appropriate sentences for each of the indicted offences and then consider questions of accumulation, concurrence and totality.[9] While not bound by the magistrate's views, it was open to the trial judge to conclude that the suspended sentences for the restraining order offences should be accumulated in the manner contemplated by the magistrate when imposing the suspended sentences.
5. Having regard to:

(1) the maximum penalties for the offences of which the appellant was convicted;

(2) the overall criminality involved in all of the appellant's offences, viewed in their entirety having regard to all relevant circumstances (including those referable to the appellant personally);

(3) the customary sentencing practices for these kind of offences; and

(4) all relevant sentencing factors and principles;

we are satisfied that the total effective sentence of 8 years 2 months' imprisonment bears a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the appellant personally. The total effective sentence is not arguably unreasonable or plainly unjust.

1. For the above reasons, the following orders should be made in the appeal:

(1) Leave to appeal is refused on both grounds of appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Orderly to the Honourable Justice Mitchell

[2] Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364 [31].

[4] Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26].

[5] See, for example, Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[6] See, for example, Carlucci v The State of Western Australia [2019] WASCA 37 [37] - [49] and North v The State of Western Australia [2020] WASCA 6 [55] - [60].

[7] Salkilld v The State of Western Australia [2017] WASCA 168 [64] - [66].

[8] Nguyen v The State of Western Australia [2019] WASCA 149 [41].