Criminal law - Appeal against sentence - Two counts of possession of a prohibited drug with intent to sell or supply - Whether total effective sentence of 4 years 6 months' immediate imprisonment infringed first limb of totality principle - Whether sentence imposed on count 2 was manifestly excessive as to type and length

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 9, s 11, s 34(2)(a)

Sentencing Act 1995 (WA), s 39, s 76(3)(b)

Alford v The State of Western Australia [2018] WASCA 186

Gaskell v The State of Western Australia [2018] WASCA 8

Giglia v The State of Western Australia [2010] WASCA 9

Harvey v The State of Western Australia [2017] WASCA 149

Lester v The State of Western Australia [2011] WASCA 128

McAlpine v The State of Western Australia [2018] WASCA 195

Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32

Towler v The State of Western Australia [2018] WASCA 141

1. This is an appeal against sentence.
2. The appellant was charged on indictment in the District Court with two offences. Count 1 alleged that on 3 March 2016, at Gooseberry Hill, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. Count 2 alleged that on the same date and at the same place, the appellant had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another. Both offences are contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).
3. The appellant stood trial before Birmingham DCJ and a jury, commencing on 19 June 2017. On arraignment, the appellant pleaded guilty to count 2 and was duly convicted. On 21 June 2017, the appellant was found guilty of count 1 and was duly convicted.[1]
4. Later on 21 June 2017, his Honour sentenced the appellant to 4 years' immediate imprisonment on count 1 and 6 months' immediate imprisonment on count 2 (reduced from 1 year 3 months' immediate imprisonment for totality). His Honour ordered that the sentences be served cumulatively. Thus, the total effective sentence imposed upon the appellant was 4 years 6 months' immediate imprisonment. This sentence was backdated to commence on 19 June 2017, and the appellant was made eligible for parole.[2]
5. Originally, no challenge was made to the individual sentences. Instead, the appellant relied on one ground of appeal, namely that the total effective sentence infringed the first limb of the totality principle.[3] Couched in this way, the ground was confined, as the appellant's counsel acknowledged, to whether there was an implied error in his Honour cumulating the 6-month sentence given on count 2 with the sentence on count 1.[4] The question of leave to appeal in respect of this ground was referred to the hearing of the appeal.[5] At the hearing, the appellant was granted leave to amend his grounds of appeal by adding a second ground which alleged that the sentence imposed in respect of count 2 was manifestly excessive.[6]

1. The appellant takes no issue with the facts of his offending. They may be summarised as follows.
2. On 3 March 2015, the police executed a search warrant at the appellant's property in Gooseberry Hill. In the course of the search, the police found, relevantly to count 1, 32.1 g of methylamphetamine with a purity of 85%.[7] Relevantly to count 2, they found 5.46 g of cannabis.[8]
3. The police also seized from the appellant's car a number of items, including two sets of scales on which were found traces of methylamphetamine and cannabis.[9]
4. At trial, the appellant argued that he possessed the methylamphetamine for his own use. Consistently with the verdict of the jury, his Honour did not accept this proposition, although he accepted that at the time the offences were committed, the appellant was a user of illicit drugs.[10]
5. His Honour found, based on the evidence the appellant gave at trial, that the appellant dealt cannabis in varying amounts, including 1 oz quantities. He rejected the proposition that the appellant only supplied the drug to his friends.[11]
6. With respect to the methylamphetamine, his Honour found that the high purity suggested that the appellant was close to the source, and seemingly trusted to be supplied with drugs of such purity for sale.[12] By reason of the high purity of the methylamphetamine, the learned sentencing judge concluded that it was 'almost inevitable that those drugs would have been diluted'.[13]

1. The appellant was aged 48 years at the time he committed the offences and 49 when he was sentenced. Up until about 2015, the appellant had generally been employed on a regular basis. After he became unemployed, he began dealing in cannabis on a commercial basis.[14]
2. The appellant has a prior criminal history, including convictions for possession of prohibited drugs, namely cannabis and methylamphetamine, as well as various traffic offences.[15] The learned sentencing judge noted that the appellant was on bail for the present offences when, on 18 June 2016, he was found in possession of cannabis, for which he was later charged, convicted and fined.[16]
3. The appellant has undertaken counselling for his illicit drug use in the past and, prior to being sentenced, he had participated in a 12-week men's group program at Holyoake.

1. In relation to count 1, his Honour identified as an aggravating feature the 'very significant quantity of high purity drug in crystal form' capable of being 'broken down' and distributed widely into the community.[17] He observed that the appellant's previous criminal history did not entitle him to any leniency for good character, and there was no evidence of any cooperation on the appellant's part.[18]
2. With respect to count 2, his Honour noted that the appellant pleaded guilty on the morning of the first day of the trial. He found that the plea of guilty was 'a forensic decision to try and deflect the jury's attention away from your true behaviour. That is to say the sale of methylamphetamine'.[19] His Honour found that the plea of guilty was not an expression of remorse, and that no benefit had been achieved by it. His Honour gave no discount for the plea of guilty.[20] The appellant does not challenge his Honour's approach to the plea of guilty.
3. His Honour had regard to the steps the appellant had taken towards his rehabilitation.[21]
4. In accordance with sentencing principles laid down by this court, his Honour stated that the major sentencing consideration was general and specific deterrence with the objective of stopping people from committing drug offences.[22] He observed that illicit drugs cause or materially contribute to 'a very significant proportion of the criminal offences committed in this State, either as a result of users acting under the influence of them or because of the need to finance and secure the supply of drugs'.[23] His Honour expressly had regard to the totality principle and gave it effect by imposing a sentence of 6 months' immediate imprisonment on count 2, instead of a sentence of 1 year and 3 months' immediate imprisonment.[24]
5. His Honour considered whether he should suspend the terms of imprisonment he imposed. He determined that the seriousness of the offending was such that the only appropriate disposition was terms of immediate imprisonment.[25] The appellant does not contend that his Honour erred in this regard.

1. The following principles relevant to appeals on grounds of manifest excess and totality are well-established.
2. 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 by 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 a sentencing court merely because the appellate court would have exercised the sentencing discretion differently.
3. Both grounds of appeal relied upon by the appellant assert an implied error.
4. In determining whether the sentence imposed on count 2 was manifestly excessive, it is necessary to examine it having regard to the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind, and the personal circumstances of the offender.
5. The first limb of the totality principle, which the appellant asserts has been infringed, requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences viewed in their entirety. Consideration must be given to all relevant facts and circumstances, including those referrable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases.
6. The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual sentences. Also, the severity or leniency of an individual sentence (which is nevertheless within the 'available range' of sentences) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle.[26] Where there is a range of sentences customarily imposed for a crime, that range does not fix the range of a sound exercise of a sentencing discretion in a particular case. 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 are the unifying principles which sentences imposed in comparable cases reveal and reflect.
7. 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.

1. Whether a court is sentencing an offender for dealing or trafficking in drugs such as methylamphetamine or cannabis, the major sentencing considerations are general and personal deterrence.[27] Accordingly, matters personal to an offender are accorded correspondingly less weight.[28] The weight (and where relevant, the purity) of the drug in question is not generally the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for personal gain.
2. It is convenient to deal with ground 2 first.

1. The maximum penalty for an offence against s 6(1)(a) of the Misuse of Drugs Act relating only to cannabis where sentenced in the District Court is a fine of $20,000 or a term of 10 years' imprisonment or both.[29]
2. The current sentencing practice in relation to offences against s 6(1) (and s 7(1)) of the Misuse of Drugs Act was considered in Lester and Rillotta v The State of Western Australia.[30] The analysis in those cases was expressly adopted by this court in Harvey v The State of Western Australia.[31] In none of these cases, or the cases referred to therein, has an offender convicted of being involved in a commercial cannabis operation of significant scale, been sentenced to something other than a term of immediate imprisonment. However, all of the cases have involved offences relating to much larger quantities of cannabis than the quantity the subject of the present case. All of the cases have involved quantities of cannabis of hundreds of grams or more, sometimes much more.
3. In oral argument, neither counsel was able to point to any case decided by this court or its predecessor which involved a quantity of cannabis as low as the quantity in this case. Quantities in the order of the quantity of cannabis in this case are generally dealt with in the Magistrates Court.[32] The absence of directly relevant comparators is not a barrier to this court deciding whether the sentence on count 2 is manifestly excessive.[33] This court remains able to form a judgment as to the ground, albeit without the yardstick of the outcomes in comparable cases.
4. Count 2 involved the possession of what can properly be described as a small quantity of cannabis with an intent to sell or supply it to another. The offence was committed in the context that the appellant dealt in 1 oz quantities of cannabis, and that he was a commercial dealer in the drug over a period of time. He was also dealing in cannabis at the same time as he was dealing in methylamphetamine. As McLure P pointed out in Lester, cannabis is not a harmless drug.[34] It has deleterious effects upon those who use it, and it is often associated with, or is a gateway to, more harmful drugs.
5. The appellant is not a person of prior good character. He is a man of mature years. He has a relevant record of prior convictions. Deterrence, both general and personal, were relevant sentencing considerations.
6. Given the lateness of the plea of guilty, it was not a mitigating factor. Indeed, there is very little that can be said in mitigation for the appellant, save that he had undertaken some counselling for his illicit drug use prior to being sentenced. Even that is somewhat dubious in light of the fact that while the appellant was on bail for the present offence, he was found in possession of a quantity of cannabis.
7. Despite all of these matters, it remains the fact that the appellant was found with only a small quantity of the drug. While quantity of an illicit drug is not the be all and end all, it remains an important sentencing consideration.
8. When his Honour came to sentence the appellant on count 2, he had already sentenced the appellant to an immediate term of imprisonment on count 1.[35] By reason of s 76(3)(b) of the Sentencing Act 1995 (WA), his Honour could not impose a suspended term of imprisonment for count 2. Nor was an intensive supervision order an appropriate sentencing option. Counsel submitted that a fine was the appropriate penalty in this case.
9. A court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community requires it.[36] By reason of s 39 of the Sentencing Act, his Honour could only impose a term of immediate imprisonment if he was satisfied that it was inappropriate to impose a fine. It appears from the sentencing remarks that his Honour was of that view.
10. There are two questions for this court to decide. First, was it was open to his Honour to be positively satisfied that a fine was inappropriate and that the only appropriate penalty was a term of immediate imprisonment? Secondly, if the only appropriate penalty was a term of immediate imprisonment, was it manifestly excessive in its length?
11. In our opinion, having regard to all of the particular circumstances of this case, being the maximum penalty and the matters we referred to in [32] - [35], we are of the opinion that a fine would have been an inappropriate sentencing option in this case, and that, in the circumstances of the case, the only appropriate sentencing option was a term of immediate imprisonment. As to its length, we regard the 6 months that was imposed by his Honour as being within the range of an appropriate exercise of the sentencing discretion. We have not been persuaded that the sentence was unreasonable or plainly unjust. The sentence is not manifestly excessive.
12. While we would grant leave to appeal on ground 2, we would dismiss the ground.

1. Count 1 was a serious offence of its type. Without repeating all that we have written, it is clear that the appellant possessed a reasonably substantial quantity of methylamphetamine with a high purity. The high purity is of importance because, as his Honour recognised, it gave rise to the potential for the methylamphetamine to be 'broken down', thus broadening the potential harm to the community. It is also the case that the appellant was close to the source of the methylamphetamine. The appellant possessed the drug with the intention of distributing it into the community for commercial gain.
2. As we have already said, the appellant was not a person of good character. His prior criminal record did not aggravate the current offending, but made personal (as well as general) deterrence a matter of importance. The appellant did not have the advantage of youth or the mitigation that a plea of guilty would have brought.
3. Of course, the individual sentence imposed upon the appellant for count 1 was not challenged, nor could it have reasonably been challenged having regard to all of the relevant circumstances. The sentence that was imposed was well within the range of sentences imposed in comparable cases. See Towler v The State of Western Australia.[37]
4. The question raised by ground 1 is whether his Honour impliedly erred in cumulating the 6-month sentence given on count 2 with the sentence on count 1.
5. In our opinion, he did not err. The cumulation of the 6-month sentence on count 2 with the sentence on count 1 was appropriate to reflect that the appellant was dealing with two different illicit drugs. Additional punishment was appropriate in order to properly reflect the greater criminality involved in the appellant's dealing in cannabis. We acknowledge the so-called one transaction rule. However, as this court has made clear, the so-called rule is no more than a rule of thumb and is not an immutable rule that offences which occur contemporaneously or in the one incident should receive concurrent sentences. The imposition of cumulative sentences is sometimes necessary to properly reflect an offender's total criminality.[38] The instant case is such a case.
6. In our opinion, the total effective sentence imposed did not infringe the totality principle. Implied error has not been demonstrated. The total effective sentence is not unreasonable or plainly unjust. While we would grant leave to appeal on ground 1, the ground has not been made out.

1. Neither ground of appeal has been made out. The appeal must be dismissed.
2. The orders that we would make are as follows:
   1. Leave to appeal on grounds 1 and 2 is granted.
   2. The appeal is dismissed.

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

Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

[5] Order, Mazza JA, 18 January 2018; AB 4.

[26] Giglia v The State of Western Australia [2010] WASCA 9 [39] - [40]; McAlpine v The State of Western Australia [2018] WASCA 195 [48].

[27] As to drugs such as methylamphetamine, see Gaskell v The State of Western Australia [2018] WASCA 8 [128], and as to cannabis, see Lester v The State of Western Australia [2011] WASCA 128 [22].

[29] Misuse of Drugs Act, s 34(2)(a).

[30] Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32 [20] - [34].

[31] Harvey v The State of Western Australia [2017] WASCA 149 [21].

[32] The Magistrates Court has jurisdiction to deal with quantities of cannabis of less than 500 g. See s 9 and sch III of the Misuse of Drugs Act. The amount of cannabis giving rise to the presumption of an intention to sell or supply is 100 g. See s 11 and sch V of the Misuse of Drugs Act. Where dealt with in the Magistrates Court the maximum penalty for such an offence is a fine of $5,000 or imprisonment for 4 years or both: s 34(2)(b) of the Misuse of Drugs Act.

[36] Section 6(4) of the Sentencing Act.

[37] Towler v The State of Western Australia [2018] WASCA 141 [32].

[38] See Alford v The State of Western Australia [2018] WASCA 186 [35].