Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Sentencing - Multiple drug offences - Whether individual sentences manifestly excessive - Whether total effective sentence infringed totality principle - Turns on own facts

Chick [2000] WASCA 231; (2000) 114 A Crim R 417

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

Duong v The State of Western Australia [2006] WASCA 110

Holder and Johnston (1983) 13 A Crim R 375

Jarvis v The Queen (1993) 20 WAR 201

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

Mishal v The Queen [2001] WASCA 328

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

R v Gronert (1976) 12 SASR 189

R v Moore [1974] 1 NZLR 417

Sinagra-Brisca v The Queen [2004] WASCA 68

Siskopoulos v The State of Western Australia [2006] WASCA 225

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

The State of Western Australia v Marchese [2006] WASCA 153

Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107

Vogel v The Queen [2002] WASCA 261

Watt v The Queen [2000] WASCA 354

Wignall (1992) 61 A Crim R 54

Benter v The State of Western Australia [2005] WASCA 245

Darwell (1997) 94 A Crim R 35

Hollingsworth v The Queen [2004] WASCA 73

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

Le v The Queen [2004] WASCA 214; (2004) 147 A Crim R 269

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

Marchesano [2000] WASCA 225; (2000) 116 A Crim R 237

Mill v The Queen (1988) 166 CLR 59

Olomi v The State of Western Australia [2004] WASCA 304

R v Ruich [2000] WASCA 84

R v Tait and Bartley (1979) 46 FLR 386

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

Schlenka v The Queen [2004] WASCA 142

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

2 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of McLure JA. I agree with those reasons and have nothing to add.

3 McLURE JA: This is an appeal against sentence. The appellant pleaded guilty in the District Court to one count of possession of methylamphetamine with intent to sell or supply, one count of possession of ecstasy with intent to sell or supply and one count of possession of LSD.

4 The total weight of the methylamphetamine was 56.17 grams with a purity ranging between 4 and 6 per cent. The learned sentencing Judge imposed a sentence of 3 years and 2 months' imprisonment on count 1. The total weight of ecstasy was 19.3 grams with a purity ranging between 21 and 25 per cent. The sentencing Judge imposed a sentence of 1 year and 3 months' imprisonment on count 2. The total weight of LSD was 0.02 grams for which the appellant received a sentence of 3 months' imprisonment. The sentences were ordered to be served cumulatively resulting in a total effective sentence of 4 years and 8 months. The appellant was made eligible for parole.

5 The facts of the offences were these. On 3 February 2005 the appellant had in the centre console of his car one large clip seal bag containing 13 smaller clip seal bags, six of which contained methylamphetamine, six contained ecstasy and one contained LSD.

6 The appellant was aged 27 at the time of the offending. He had no relevant convictions that were not the subject of a spent conviction order. He left school at year 12 and qualified as a welder, gaining further qualifications as a certified pressure welder, a coded welder and a certified welding inspector. The appellant was in the workforce until around 2004 when he commenced using illicit drugs. He became addicted and started dealing in drugs to finance his personal use. The sentencing Judge accepted that the appellant had tried to take initial steps to address his addiction and had powerful motivations to rehabilitate himself. The findings as to rehabilitation go no further than that.

7 There are two grounds of appeal, the first being that the total effective sentence infringed the totality principle because the sentencing Judge failed to order that the three sentences be served wholly or partially

concurrently and secondly, that the individual sentences were manifestly excessive. It is logical to commence with the second ground of appeal.

8 In order to establish manifest excess, the appellant must establish that the individual sentences were outside the range of a sound sentencing discretion having regard to the seriousness of the offence, the circumstances of the offending, matters personal to the appellant and the sentences customarily imposed for offences of that nature. The relevant sentencing principles for drug related offences were recently considered by this Court in The State of Western Australia v Marchese [2006] WASCA 153 and The State of Western Australia v Andela [2006] WASCA 77. Because of the weight accorded to considerations of deterrence, less weight is given to matters personal to the offender.

9 The sentences imposed for each offence of possession with intent to sell or supply are, both in terms of type and length, within the range of sentences customarily imposed for offending of this nature: Mishal v The Queen [2001] WASCA 328; Watt v The Queen [2000] WASCA 354; Vogel v The Queen [2002] WASCA 261; Colangelo v The State of Western Australia [2004] WASCA 294; Duong v The State of Western Australia [2006] WASCA 110; Siskopoulos v The State of Western Australia [2006] WASCA 225. Further, there was nothing in the material placed before this Court to support a conclusion that the sentence for possession of LSD was outside the range of a sound sentencing discretion. It appears the question has not previously been considered by this Court although a sentence of imprisonment is not novel in this and other jurisdictions: Wignall (1992) 61 A Crim R 54; R v Gronert (1976) 12 SASR 189; R v Moore [1974] 1 NZLR 417. LSD is described as an insidious and highly dangerous drug: Chick [2000] WASCA 231; (2000) 114 A Crim R 417 at 424. The appellant has not established that the individual sentences are manifestly excessive.

10 I turn to ground 1. There is no factual basis to support a conclusion that the one transaction rule applies. The fact that a person is found on one occasion in possession of quantities of drugs with intent to sell or supply does not bring the offences within the rule: Sinagra-Brisca v The Queen [2004] WASCA 68 at [28] per Wheeler J. The remaining issue is whether total or partial concurrency was required for reasons of totality. On the facts in this case the question is whether the total effective sentence is a just and appropriate measure of the total criminality involved in the conduct as a whole: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307 - 308 per McHugh J; Jarvis v The Queen (1993) 20 WAR 201 at 216 per Anderson J.

11 The practical effect of the totality principle can, and will often be, to arrive at a total effective sentence that is less than would be arrived at by adding up the terms appropriate for each offence if viewed alone: Holder and Johnston (1983) 13 A Crim R 375 at 389 per Street CJ. Whether the principle produces that result depends on the circumstances of each case. Moreover, different orders as to cumulation and concurrence can produce the same total effective sentence as a result of different individual sentences being imposed, there being no such thing as a single correct sentence. The only question for this Court is whether the total sentence is too long for the criminal conduct considered as a whole.

12 It is apparent that the sentencing Judge came to the view that the total criminality of the conduct would not be adequately reflected by making the individual sentences she imposed wholly or partially concurrent. I infer that is primarily because the amount and purity of the drugs the subject of counts 1 and 2 is often given significant weight in sentencing: Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 at [50]. The greater the quantity of drugs, the greater the impact on the community and the greater the financial return to the dealer. The amount and purity may carry less weight when there is no evidence that the offender was aware of the type, quantity, or purity of drugs the subject of a single importation: Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616. It was not contended by the appellant that the totality principle was infringed solely as a result of making the term of 3 months for possession of LSD cumulative. I am not persuaded that the total sentence of 4 years and 8 months is disproportionate to the total criminality of the offending as a whole. I would dismiss the appeal.