ITALIANO -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 115 (27 July 2020)

1. On 25 February 2019, the appellant pleaded guilty to both charges. Vernon DCJ sentenced him on that date to 4 years 3 months' immediate imprisonment for count 1 and 6 months' immediate imprisonment for count 2. The sentence for count 2 would have been 12 months' immediate imprisonment, but was reduced by her Honour in the application of the totality principle. The individual sentences were ordered to be served cumulatively. The total effective sentence was therefore 4 years 9 months' immediate imprisonment. The total effective sentence was backdated to 17 July 2018 and the appellant was made eligible for parole.
2. The appellant requires an extension of time within which to appeal. The appellant's delay in filing his appeal notice has not been fully explained, but his appeal has merit. In the circumstances, we would grant the appellant an extension of time.
3. Leave to appeal should be granted and the appeal should be allowed. The sentencing judge's sentencing decision should be set aside and the appellant should be resentenced by this court. Our reasons are as follows.

1. As to count 1, on 1 March 2018, the police executed a search warrant at the appellant's home in Margaret River. During the search the police found, in the appellant's toolbox, 11.7 g of methylamphetamine at 81% purity. The police also found hundreds of unused small clip seal bags; a tick list; about 10 g of cannabis; cannabis resin; about 75 cannabis seeds; and a knuckle duster.
2. The estimated value of the methylamphetamine was between $5,000 and $20,000 depending on whether it was sold in point form or by the gram.
3. As to count 2, on 18 June 2018 at 5.08 pm, the appellant sent three text messages to Ms Wilkerson, who was his former partner. At the time, Ms Wilkerson was at the Busselton Health Campus. The text messages stated:

(a) 'I'm going to get you for this, Sarah. I'm going to wait for you at your parents' place. I'm going to kill you for this now. You have pushed me too far. You are going to die, cunt'.

(c) 'You're dead in my eyes [now], Sarah. You're fucking dead. I'm going to get everyone onto you for this now. You now will see what I can do to you now. I will be there ready for you tonight'.

1. When the appellant committed count 2 he was on bail for count 1.
2. On 24 June 2018 at 6.10 pm, the appellant was stopped by the police while he was driving a motor vehicle within 2 km of Ms Wilkerson's parents' home. The appellant had travelled from Margaret River.
3. The appellant participated in an electronically recorded interview with police. He made admissions to the effect that he had sent the text messages to Ms Wilkerson.

The appellant's personal circumstances and antecedents

1. The appellant was aged 48 when he committed the offences and was aged 49 when sentenced. He was born in Western Australia and moved to Margaret River as a baby with his parents and three brothers. At school, he performed well academically and, after leaving school, completed a motor vehicle mechanic's apprenticeship. The appellant has worked in that industry for most of his adult life. He made a success of his business endeavours and investment properties he acquired.
2. The appellant's fortunes changed during the 2009 global financial crisis. His financial position deteriorated. The appellant's 16‑year relationship with his partner ended in 2012 while the couple was living in Queensland. The appellant returned to Western Australia and found contract employment as a mechanic.
3. The appellant began using cannabis as a teenager and was convicted of its possession a number of times. His methylamphetamine use began in about 2012 after he returned from Queensland. The appellant told Steve Jobson, a psychologist who wrote a report dated 16 January 2019 for her Honour, that he used methylamphetamine as a stimulant to improve his productivity so that he might return to his former financial position. Mr Jobson assessed the appellant's methylamphetamine dependence as 'significant'.
4. Mr Jobson analysed the appellant's offending behaviour as follows:

There appear to be a number of possible underlying influencing factors to Mr Italiano's offending behaviour: first, it is apparent that he had a significant methamphetamine dependence, with him clearly identifying this, and his previous behaviour purchasing larger quantities of this drug to provide for his own apparent dependence. It is further hypothesised that the dissolution of his intimate relationship appears to have triggered some mental health issues, further resulting in a significantly dysfunctional, and at times, chaotic lifestyle, with minimal [stability] in any area of his life.

Underlying these more obvious external factors to his offending however, there appears to be a disordered personality style which is likely to be indirectly linked to his illicit substance use, unstable lifestyle, and the inappropriate behaviour toward his ex-partner.

1. Mr Jobson noted in his report that, prior to the commission of count 2, the appellant was served with a violence restraining order with Ms Wilkerson as the protected person.
2. The appellant's prior criminal record includes convictions for traffic offences; common assault; possession of prohibited drugs (multiple offences); possession of stolen or unlawfully obtained property; possession of a prohibited weapon; and breaches of bail.
3. On 17 October 2014, the appellant was convicted, on his early pleas of guilty, of two counts of possession of methylamphetamine with intent to sell or supply. He received a total effective sentence of 2 years 6 months' immediate imprisonment. On 9 January 2014, the appellant was in possession of 5.97 g of methylamphetamine at 62% to 68% purity, a tick list and electronic scales. On 21 February 2014, he was in possession of 1.85 g of methylamphetamine of low purity and 17.2 g of methylamphetamine at 69% purity together with various items associated with the sale of drugs. His grant of parole for those offences was cancelled after he breached its conditions.

1. The sentencing judge noted, correctly, that the maximum penalty for count 1 (the drug offence) was 25 years' imprisonment or a fine of $100,000 or both and the maximum penalty for count 2 (the threat unlawfully to kill) was 7 years' imprisonment.
2. Her Honour recounted the facts and circumstances of the offending and observed that the State's statement of material facts had been accepted by defence counsel.
3. The sentencing judge said that the appellant had told Mr Jobson and the author of a pre‑sentence report that he thought the methylamphetamine the subject of count 1 had been in his toolbox for some time and that he did not know the drug was there. Defence counsel did not rely upon that assertion at the sentencing hearing. Her Honour said that the assertion was 'not credible given the quantity of the drug and its purity and the evidence of [the appellant's] drug dealing and it [was] inconsistent in any event with [the appellant's] plea' (ts 11). The appellant was selling methylamphetamine for commercial gain.
4. Her Honour found that the threats made by the appellant to Ms Wilkerson were intended to terrify her. Ms Wilkerson's victim impact statement revealed that she believed the appellant was going to kill her. Ms Wilkerson said she was afraid of the appellant. Her Honour found that the offending against Ms Wilkerson had seriously affected her life and 'kept her away from her own son for fear of making him unsafe as well' (ts 11). Her Honour also made these comments about the offending the subject of count 2:

I'm told that you were travelling ... to [Ms Wilkerson's] parents' place to collect property from her parents' place. Whether or not I accept that, turning up after you had made those threats to her ... in your text messages, you would have been aware that turning up to her parents' place whatever your reason for doing so would further terrify her (ts 11).

1. The sentencing judge referred to the appellant's personal circumstances and antecedents.
2. Her Honour noted that, during his pre-sentence report assessment, the appellant had minimised his offending. He tended to blame Ms Wilkerson for his behaviour.
3. Mr Jobson expressed the view in his report that the appellant was at a moderate risk of reoffending due to his antisocial attitudes and beliefs; his association with antisocial individuals; his considerable use of methylamphetamine and cannabis; his recent unstable work history; and the considerable difficulties he had displayed in his intimate relationship.
4. The sentencing judge found that the appellant was not genuinely remorseful and that his risk of reoffending was at least moderate, if not higher.
5. Her Honour commented, in the course of imposing sentence, that she had reduced the sentence she would otherwise have imposed for count 2 from 12 months' immediate imprisonment to 6 months' immediate imprisonment in the application of the totality principle.
6. After her Honour completed her sentencing remarks, defence counsel drew her Honour's attention to the fact that she had not made any comment about any discount afforded to the appellant for his pleas of guilty.
7. The sentencing judge then said that she had discounted the head sentence she would otherwise have imposed for each individual sentence by 20%, pursuant to s 9AA of the Sentencing Act 1995 (WA), on account of the pleas of guilty.

1. The sole ground of appeal contends that the sentence for count 1 was manifestly excessive having regard to 'the appellant's circumstances both aggravating and mitigating and the usual sentencing range for such offences'.
2. On 29 October 2019, Buss P referred the application for leave to appeal to the hearing of the appeal.

1. Counsel for the appellant submitted that the sentence for count 1 was higher than sentences imposed for comparable offending in a number of cases including Pellew v The State of Western Australia;[1] Howard v The State of Western Australia;[2] and Merai v The State of Western Australia.[3]
2. Further, it was submitted that sentences of similar duration and for similar offending to the appellant's in a number of cases, including Cartwright v The State of Western Australia;[4] Tran v The State of Western Australia;[5] and Towler v The State of Western Australia,[6] were imposed after a trial, whereas the appellant had pleaded guilty.
3. Counsel contended that, although the appellant had little mitigation, and personal and general deterrence were significant factors, the sentence of 4 years 3 months' immediate imprisonment for count 1 was manifestly excessive having regard to the appellant's personal circumstances and the range of sentences customarily imposed.

1. Counsel for the State submitted that the appellant's only mitigating factor was his plea of guilty, for which he received a 20% discount. Although the sentence for count 1 was 'high', and 'perhaps at the upper limit of a sound exercise of sentencing discretion', the sentence had not been shown to be unreasonable or plainly unjust.
2. Counsel referred to a number of cases including Davies v The State of Western Australia.[7]
3. It was submitted that if the court was to find that the sentence for count 1 was manifestly excessive and proceeded to resentence the appellant, the court should vary the sentence for count 2, pursuant to s 41(2) of the Criminal Appeals Act 2004 (WA), so that the sentence for count 2 is commensurate with the seriousness of the charged offence.

1. A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of 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 in question, and the personal circumstances of the offender.
2. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
3. The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual offences. See Roffey v The State of Western Australia.[8] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia.[9]
4. The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
5. A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or a total effective sentence infringes the first limb of the totality principle. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
6. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
7. If, in a particular case where manifest excess is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sentence is or is not manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sentence. However, previous sentencing ranges are only one pointer to the adequacy of a sentence. See Munda v The State of Western Australia;[10] The State of Western Australia v Doyle.[11]
8. Similarly, if, in a particular case where an infringement of the first limb of the totality principle is alleged, there are no directly comparable cases, this court is not precluded from deciding that a total effective sentence does or does not infringe the first limb of the totality principle. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to judge the adequacy of the total effective sentence imposed at first instance. See Moore v The State of Western Australia.[12]
9. Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law. See Barbaro v The Queen.[13]
10. In the present case, the sentencing judge was obliged to sentence the appellant in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act.
11. The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[14]
12. At the material time, the maximum penalty for possessing less than a trafficable quantity of methylamphetamine (that is, a quantity of methylamphetamine less than 28 g), with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, was 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(aa) of the MD Act.
13. The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs 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 commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
14. We have had regard to the sentencing dispositions in a range of cases including:

(a) the cases cited by counsel for the appellant and counsel for the State; and

(b) Potaka v The State of Western Australia;[15] Leckie v The State of Western Australia;[16] Kirkup v The State of Western Australia;[17] Donaldson v The State of Western Australia;[18] Mrsa v The State of Western Australia;[19] Gallagher v The State of Western Australia;[20] Phan v The State of Western of Australia;[21] and Dinh v The State of Western Australia.[22]

1. It is unnecessary to reproduce the facts and the sentencing dispositions in those cases.
2. The appellant's offending was serious. It involved the possession, with intent to sell or supply, of 11.7 g of methylamphetamine with a high degree of purity. The appellant was a dealer as well as a user of the drug. The appellant was selling methylamphetamine for commercial gain. Dealers in methylamphetamine who are also addicted to the drug are not treated more leniently merely because the motive for their dealing is wholly or in part the need for money to finance their addiction. The possession of methylamphetamine with intent to sell or supply for the purpose of financing an addiction or reducing a drug debt is not mitigatory. It still involves selling or supplying a prohibited drug for a commercial purpose. See Chu v The State of Western Australia.[23]
3. The appellant was not youthful or inexperienced for sentencing purposes.
4. As we have mentioned, the appellant had a prior criminal record. The fact that the appellant had a prior criminal record and that previous sentences had not achieved the purpose for which they were imposed did not aggravate the seriousness of the offence in question. However, the appellant's previous convictions demonstrated that he was not otherwise of good character. More significantly, the appellant's conviction on 17 October 2014 on two counts of possession of methylamphetamine, with intent to sell or supply, underscored the importance of personal and general deterrence as sentencing factors.
5. The appellant's offending was not mitigated by any matter of any significance apart from his pleas of guilty. As we have mentioned, the sentencing judge said that she had afforded the appellant a 20% discount, pursuant to s 9AA of the Sentencing Act, for each of his pleas.
6. However, in our opinion, the sentence of 4 years 3 months' immediate imprisonment for count 1 is not broadly consistent with the pattern of sentencing revealed by previous decisions of this court with at least some features comparable to the facts and circumstances of the appellant's offending and the appellant's personal circumstances. The sentence imposed on the appellant by her Honour would have been within the range open on a proper exercise of the sentencing discretion if the appellant had been convicted after a trial, but not in circumstances where he had pleaded guilty and was afforded a 20% discount for the plea.
7. We are satisfied that, having regard to the maximum penalty for count 1; the objective seriousness of the offending; the importance of personal and general deterrence; the general standards of sentencing applicable to the offence in question; all aggravating factors; the plea of guilty; and the appellant's personal circumstances and antecedents, that the sentence of 4 years 3 months' immediate imprisonment was unreasonable or plainly unjust.
8. The ground of appeal has been made out.

1. Section 31(3) of the Criminal Appeals Act provides that, unless under s 31(4), this court allows an appeal against sentence, this court must dismiss the appeal.
2. By s 31(4)(a), this court may allow an appeal against sentence if, in its opinion, a different sentence should have been imposed.
3. Section 31(5) provides that if this court allows an appeal against sentence, it must set aside the sentence and:

(a) may instead impose a new sentence that is either more or less severe; or

(b) may send the charge back to the court that imposed the sentence to be dealt with further.

1. Section 41(2) of the Criminal Appeals Act provides, relevantly, that if under the Act this court varies or sets aside a sentence (sentence A), it may vary any other sentence:

(a) that was imposed at or after the time when sentence A was imposed; and

1. In the present case, the sentence for count 2 was imposed at the time when the sentence for count 1 was imposed and the sentence for count 2 took into account the sentence for count 1.
2. It is the duty of this court to exercise the sentencing discretion afresh in relation to count 1 and count 2 in deciding whether different sentences should have been imposed. See Kentwell v The Queen.[24]
3. This court has the material necessary to exercise the sentencing discretion afresh.
4. As to count 1, like the sentencing judge, we would reduce the head sentence of imprisonment we would otherwise have imposed by 20%, pursuant to s 9AA of the Sentencing Act, on account of the plea.
5. After taking into account the maximum penalty for the offence; the facts and circumstances of the offending; the seriousness of the offending; the general standards of sentencing revealed by prior cases with at least some features comparable to the appellant's offending; the plea of guilty; and all other relevant sentencing factors including the appellant's personal circumstances and antecedents, we would exercise the sentencing discretion afresh in relation to count 1 by imposing a sentence of 3 years' immediate imprisonment.
6. As to count 2, like her Honour, we would reduce the head sentence of imprisonment we would otherwise have imposed by 20%, pursuant to s 9AA of the Sentencing Act, on account of the plea.
7. A review of previous sentencing dispositions in relation to the offence of threatening unlawfully to kill reveals that there are significant variations in the facts and circumstances of each offending and offender. The sentence to be imposed in each case depends on the particular facts and circumstances of the offence, having regard to the maximum penalty, the seriousness of the offence, the personal circumstances and antecedents of the offender and all other relevant sentencing factors. See Rehu v The State of Western Australia [No 2][25] and the cases there cited; Bloomfield v The State of Western Australia;[26] Cleminson v The State of Western Australia;[27] MacCauley v The State of Western Australia [No 2];[28] and Pureau v The State of Western Australia.[29]
8. After taking into account the maximum penalty for the offence; the facts and circumstances of the offending (including the fact that, when he committed count 2, the appellant was subject to a violence restraining order with Ms Wilkerson as the protected person, and the appellant was on bail for count 1); the seriousness of the offending; the vulnerability of the victim, Ms Wilkerson; the general standards of sentencing revealed by prior cases with at least some features comparable to the appellant's offending; the plea of guilty; and all other relevant sentencing factors including the appellant's personal circumstances and antecedents, we would exercise the sentencing discretion afresh in relation to count 2 by imposing a sentence of 1 year 4 months' immediate imprisonment.
9. It is necessary, in the application of the totality principle, to recognise that the offending on count 1 was separate and distinct from the offending on count 2. The seriousness of the appellant's overall offending requires that the new sentence for count 2 be served cumulatively upon the new sentence for count 1. The new total effective sentence is therefore 4 years 4 months' immediate imprisonment. The new total effective sentence should be taken to have taken effect on 17 July 2018. Like her Honour, we would make a parole eligibility order. The appellant will be eligible to be considered for release on parole when he has served 2 years 4 months in custody calculated from 17 July 2018.

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

[1] Pellew v The State of Western Australia [2008] WASCA 169.

[2] Howard v The State of Western Australia [2016] WASCA 70.

[3] Merai v The State of Western Australia [2018] WASCA 54.

[4] Cartwright v The State of Western Australia [2010] WASCA 4.

[5] Tran v The State of Western Australia [2016] WASCA 37.

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

[7] Davies v The State of Western Australia [2006] WASCA 151.

[8] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).

[9] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).

[10] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39] (French CJ, Hayne, Crennan, Kiefel, Gageler & Keane JJ).

[11] The State of Western Australia v Doyle [2017] WASCA 207 [36] (Buss P, Mazza JA & Hall J).

[12] Moore v The State of Western Australia [2019] WASCA 35 [51] (Buss P & Mazza JA).

[13] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).

[14] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).

[15] Potaka v The State of Western Australia [2017] WASCA 98.

[16] Leckie v The State of Western Australia [2018] WASCA 91.

[17] Kirkup v The State of Western Australia [2018] WASCA 102.

[18] Donaldson v The State of Western Australia [2018] WASCA 143.

[19] Mrsa v The State of Western Australia [2018] WASCA 217.

[20] Gallagher v The State of Western Australia [2019] WASCA 108.

[21] Phan v The State of Western of Australia [2019] WASCA 131.

[22] Dinh v The State of Western Australia [2019] WASCA 167.

[23] Chu v The State of Western Australia [2012] WASCA 135 [33] (Mazza JA; Buss JA agreeing).

[24] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [42] - [43] (French CJ, Hayne, Bell and Keane JJ).

[25] Rehu v The State of Western Australia [No 2] [2013] WASCA 50 [25].

[26] Bloomfield v The State of Western Australia [2017] WASCA 10.

[27] Cleminson v The State of Western Australia [2017] WASCA 58.

[28] MacCauley v The State of Western Australia [No 2] [2017] WASCA 65.

[29] Pureau v The State of Western Australia [2017] WASCA 115.