Criminal law - Appeal against sentence - Manifest excess - Whether sentencing judge erred in ordering cumulation of sentences - Discount for pleas of guilty - Turns on own facts

Criminal Appeals Act 2004 (WA), s 31(4)(a)

Firearms Act 1973 (WA), s 19(1ac)

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

Farquhar v The State of Western Australia [2005] WASCA 49

Hiron v The Queen [2003] WASCA 310

Nguyen v The State of Western Australia [2009] WASCA 8

Riley v Smirk [2011] WASCA 200

Roffey v The State of Western Australia [2007] WASCA 246

Sakkers v Thornton [2008] WASC 175

Stone v The State of Western Australia [2010] WASCA 80

Vagh v The State of Western Australia [2007] WASCA 17

1 McLURE P: This is an application for leave to appeal against sentence.

2 The appellant was charged on indictment with twelve offences, eight being drug offences under s 6(1) of the Misuse of Drugs Act 1981 (WA) and four of being in possession of an unlicensed firearm contrary to s 19(1) and s 19(1ac) of the Firearms Act 1973 (WA).

3 Just prior to the scheduled commencement of the trial of the charges, the appellant pleaded guilty to 10 of them, being all the drug charges and two of the firearm charges. The State accepted the pleas in full satisfaction of the indictment.

4 On 12 August 2011, the appellant was sentenced by Staude DCJ to a total effective sentence of 10 years' imprisonment. A sentence of 2 years' imprisonment was imposed for each of the firearm offences, being counts 9 and 10 on the indictment. The sentence on count 9 was one of the sentences ordered to be served cumulatively to produce the total sentence.

5 The appellant contends that (1) the sentence of 2 years' imprisonment for the firearm offences is manifestly excessive; (2) the sentencing judge erred in ordering cumulation of the sentence for the offence the subject of count 9; and (3) the sentencing judge erred in allowing an inadequate discount for the pleas of guilty.

6 The relevant facts found by the sentencing judge are as follows. The offences were committed between 9 September 2009 and 23 March 2010. They were committed whilst the appellant was serving a term of suspended imprisonment imposed on 20 March 2009 for possession of approximately 28 g of methylamphetamine with intent to sell or supply to another.

7 On 9 September 2009 detectives executed a search warrant at the place where the appellant was living. They found three quantities of methylamphetamine in clipseal bags totalling 40.57 g at a purity of between 2% and 26% and 4.42 g of heroin at 55% purity (counts 1 and 2). The appellant was granted bail for these offences. Thus, the subsequent offences were committed whilst the appellant was serving a term of suspended imprisonment and was on bail in relation to counts 1 and 2.

8 On 18 February 2010, the appellant sold to another 55.7 g of heroin (count 3). On 2 March 2010 the appellant sold 27.9 g of heroin at a purity of 53% (count 4).

9 On 23 March 2010, the appellant sold to a police undercover operative 56.8 g of heroin at 54% purity and 27.5 g of methylamphetamine at 63% purity (counts 5 and 6). The appellant told the police operative that the heroin could be cut with an agent to three times its weight and the amphetamine to twice its weight. After these transactions and conversation had occurred, police raided the premises. The appellant left the premises and jumped over a fence into a neighbouring property. He dropped the handgun the subject of count 9 and a pencil case containing 100.57 g of heroin at a purity ranging between 45% to 51% (count 7) and 18.35 g of methylamphetamine at a purity of 45% to 55% (count 8).

10 The firearms the subject of counts 9 and 10 were in the possession of the appellant at the time he conducted the transaction the subject of counts 5 and 6. The firearm the subject of count 9 was a Beretta Tomcat handgun loaded with seven rounds. The firearm the subject of count 10 was a BBM 313 handgun loaded with four rounds. The appellant showed the two handguns to the police operative. They were concealed in the pockets of the appellant's pants.

11 The sentencing judge found that the appellant was in the business of selling relatively large amounts of heroin and methylamphetamine and was a high-level dealer in the local market. He continued:

The weights and purities of the drugs sold indicate that you were close to the source of production or importation. Effectively ... you were a wholesaler of the drugs.

You armed yourself for your protection during drug deals. This gives some indication of the level at which you were operating and that there was a degree of sophistication in your activities ... in that you foresaw and guarded against its associated risks (ts 116).

12 The appellant was aged 45 when he committed the offences. He was born in Vietnam. He went to Thailand in 1987, living in a refugee camp near the border of Thailand and Cambodia until he was granted refugee status by the United Nations in 1989. He came to Australia in 1990. From about 2007, the appellant developed problems with depression and a gambling habit.

13 As to his pleas of guilty, the sentencing judge said:

Some allowance needs to be made for your pleas of guilty even though they were entered at a later stage, only a few days before your scheduled trial and the fact that the case against you was very strong (ts 122).

14 The sentencing judge reduced the total sentence from 11 years to 10 years to reflect the late pleas of guilty.

15 For the breach of the suspended imprisonment order, the sentencing judge imposed a sentence of 3 years' imprisonment and, for totality reasons, ordered that it be served concurrently with the other sentences he had imposed. The appellant was made eligible for parole.

16 The appellant must establish that the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess depends upon establishing the implication of an error from the sentence itself.

17 The maximum penalty for the firearm offences committed by the appellant is 7 years' imprisonment. The appellant relies on the sentences imposed in six cases which have come before this court on appeal in which the sentences imposed ranged between 6 - 12 months' imprisonment: Hiron v The Queen [2003] WASCA 310; Farquhar v The State of Western Australia [2005] WASCA 49; Roffey v The State of Western Australia [2007] WASCA 246; Sakkers v Thornton [2008] WASC 175; Stone v The State of Western Australia [2010] WASCA 80 and Riley v Smirk [2011] WASCA 200. In none of these cases was this court called upon to consider or rule upon the range of terms of imprisonment customarily imposed for breaches of the relevant provisions of the Firearms Act.

18 The circumstances of the offences in this case are at the high end of the scale of seriousness. The sentencing judge found that the appellant was in possession of the unlicensed firearms for the purpose of protecting himself against the risks associated with his other criminal conduct. Save for the late plea of guilty, there is no significant mitigation in the appellant's offending. In all the circumstances, the appellant has no reasonable prospect of establishing that the sentence of 2 years' imprisonment for the firearm offences is outside the range of a sound exercise of the sentencing discretion.

19 This ground is also without merit. It is clear from the sentencing judge's reasons that the orders for concurrence and cumulation were made with an eye to the need to achieve the mathematical outcome identified as the appropriate total sentence for the appellant's criminal conduct as a

whole: Nguyen v The State of Western Australia [2009] WASCA 8 [27]. Having regard to the very serious nature of the appellant's offending conduct, the fact that the offences were committed whilst he was serving a suspended term of imprisonment for an earlier drug dealing offence and that offences 3 - 10 were committed whilst he was on bail for offences the subject of counts 1 and 2, the appellant has no prospect of establishing that a different total sentence should have been imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).

20 The appellant contends that the reduction for the pleas of guilty is inadequate. That is in substance a claim that the sentencing judge failed to give adequate weight to the pleas of guilty. A bare claim of that nature does not give rise to an appealable error: Vagh v The State of Western Australia [2007] WASCA 17 [76].

21 The appellant has no reasonable prospect of establishing that the sentencing judge erred in the exercise of his discretion in relation to the extent of the discount given for the appellant's late pleas of guilty. The sentencing judge made the unchallenged finding that the appellant could have indicated early pleas of guilty to counts 1 - 10 notwithstanding the negotiations in relation to counts 11 and 12. Further, there was no express finding that the pleas of guilty were indicative of remorse. The appellant's claims of remorse and scope for rehabilitation do not at all sit comfortably with his contemptuous breach of the suspended imprisonment order and his offending whilst on bail.

22 As the grounds have no prospect of succeeding, leave should be refused and the appeal dismissed.