Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty - Serious drugs and firearms offences - Total effective sentence of 8 years 6 months' imprisonment - No infringement of the totality principle

Firearms Act 1973 (WA), s 19(1), s 19(1ab)(b), s 19(1ad)

Misuse of Drugs Act 1981 (WA), s 5(1)(d), s 6(1)(a), s 6(2), s 34(1)(d), s 34(1)(e)

Weapons Act 1999 (WA), s 6(1), s 7(1)

Bellissimo v The Queen (1996) 84 A Crim R 465

Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152

Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49

Huynh v The State of Western Australia [2012] WASCA 8

Karakuyu v The State of Western Australia [2012] WASCA 75

Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522

Monument v The State of Western Australia [2007] WASCA 239

Ricciardi v The State of Western Australia [2012] WASCA 106

Smith v The State of Western Australia [2012] WASCA 91

Stapleton v The Queen [2004] WASCA 130

The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119

The State of Western Australia v Tran [2008] WASCA 183

Tran v The State of Western Australia [2010] WASCA 38

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

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

1 BUSS JA: The appellant has applied to this court for leave to appeal against sentence.

(a) two counts of possession of methylamphetamine with intent to sell or supply (counts 1 and 7);

(b) two counts of possession of LSD with intent to sell or supply (counts 2 and 8);

(c) one count of possession of cocaine with intent to sell or supply (count 3);

(d) two counts of possession of dimethyltryptamine with intent to sell or supply (counts 4 and 9);

(e) one count of possession of six firearms while not being the holder of a licence or permit (count 5); and

(f) one count of possession of an explosive substance (count 6).

3 The counts of possessing prohibited drugs with intent to sell or supply were contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act). The count of possession of six firearms while not being the holder of a licence or permit was contrary to s 19(1) read with s 19(1ab)(b) of the Firearms Act 1973 (WA). The count of possession of an explosive substance was contrary to s 557(1) of the Criminal Code (WA).

4 The appellant was also charged with a number of other offences, namely:

(b) four counts of possession of a prohibited drug;

(c) six counts of possession of unlicensed ammunition;

(d) three counts of possession of a controlled weapon;

(e) four counts of possession of a prohibited weapon; and

The appellant requested that these charges be dealt with by the District Court pursuant to s 32 of the Sentencing Act 1995 (WA).

5 The offence of receiving was contrary to s 414 of the Criminal Code. The offences of possession of a prohibited drug were contrary to s 6(2) of the MD Act and the offence of possession of a smoking utensil was contrary to s 5(1)(d) of that Act. The offences of possession of unlicensed ammunition were contrary to s 19(1) read with s 19(1ad) of the Firearms Act. The offences of possession of a controlled weapon were contrary to s 7(1) of the Weapons Act 1999 (WA) and the offences of possession of a prohibited weapon were contrary to s 6(1) of that Act.

6 The appellant pleaded guilty to the counts in the indictment and the charges in the s 32 notice at the first reasonable opportunity.

7 On 13 March 2012, Sweeney DCJ sentenced the appellant.

8 Her Honour imposed individual sentences of immediate imprisonment on the counts in the indictment, as follows:

9 The sentencing judge ordered that the sentences for counts 1, 5 and 8 be served cumulatively on each other and on the sentence for count 7. The sentences for the other counts were ordered to be served concurrently with each other and concurrently with the sentence for count 7.

10 The charges the subject of the s 32 notice attracted sentences of immediate imprisonment ranging from 2 months to 8 months.

11 Her Honour ordered that the sentences imposed on these charges be served concurrently with each other and concurrently with the sentence for count 7 in the indictment.

12 The total effective sentence was therefore 8 years 6 months' imprisonment. A parole eligibility order was made.

The facts and circumstances of the offending

13 The offences related to items found by police during a search of the appellant's home on 31 January 2011 and a search of his luggage at Karratha Airport on 3 February 2011.

14 The relevant weights and purities of each drug the subject of the indictment were as follows:

15 The total weight of the methylamphetamine, the subject of counts 1 and 7, was 107.37 g with an average purity of about 68%.

16 The relevant weights and purities of each drug the subject of the charges of possession under the s 32 notice were as follows:

17 On 31 January 2011, police executed a search warrant at the appellant's home. The appellant was present during the search. The police found quantities of various prohibited drugs hidden throughout the house, a number of loaded firearms and a quantity of ammunition. Also, they located a large amount of MSM, unused clipseal bags and two sets of digital scales with traces of methylamphetamine. Further, the police found several 'tick' lists indicating that up to $13,000 was owing to the appellant.

18 It was apparent, when the search warrant was executed, that the appellant was in the process of installing security cameras, with the premises hard wired and cameras facing the front yard and door.

19 As to count 1, the total of 5.13 g of methylamphetamine was found in small clipseal bags located in different parts of the house.

20 As to count 2, the 0.07 g of LSD was in the form of six tablets. They were hidden in a fake Canon camera.

21 As to count 3, the 2.29 g of cocaine was in a clipseal bag and was also hidden in the fake Canon camera. The camera also contained a number of clipseal bags and a powder commonly used for cutting cocaine.

22 As to count 4, the 4.32 g of dimethyltryptamine was hidden in a metal tin on a pool table in the living area.

23 As to count 5, the police located a home made .22 calibre pen gun in a drying rack on the kitchen sink. The gun was loaded with a .22 calibre round and ready to fire. A search of a gun cabinet in the appellant's bedroom revealed a number of firearms which had been illegally modified, namely:

(a) A .22 calibre pen gun, which was loaded with a .22 calibre round and ready to fire.

(b) A sawn-off .22 calibre lever action rifle. The rifle had been modified by cutting the barrel and removing the stock. As a result, the rifle could be concealed upon one's person and used one-handed.

(c) A 12 gauge long barrelled shotgun. The shotgun had been modified by trimming the stock to permit it to be more easily hidden upon one's person.

(d) A 12 gauge sawn off shotgun, which was loaded with a 12 gauge round and ready to fire. The shotgun had been modified by shortening the barrel so that it could be concealed upon one's person.

(e) A Styer 9 mm handgun which was loaded with a 9 mm round and ready to fire.

The appellant was not the holder of a current firearm's licence and has never held a firearm's licence in this or any other State.

24 As to count 6, the police also found in the gun cabinet a stick of 'Blast Australia Power gel' in a glass container. The gel is classified as an explosive and it is illegal to possess it without a licence. The appellant did not have a licence.

25 As to count 7, 8 and 9, on 3 February 2011, police searched the appellant's luggage at Karratha Airport. His luggage comprised a duffle bag and a computer carry bag.

26 A black 'Look' document holder was found in the duffle bag. A large heat seal bag was in the holder. Two smaller heat seal bags containing methylamphetamine were in the large heat seal bag. The total weight of the methylamphetamine was 102.24 g and it had a purity ranging from 43% - 74%. The average purity was about 68%. The duffle bag also contained a number of small clipseal bags.

27 The police found 129.5 tablets in the computer bag. The tablets contained 1.72 g of LSD. The computer bag also contained 'tick' books indicating that large amounts of money were owing to the appellant.

28 The police also located within the computer bag a piece of unmarked beige card. The card weighed 0.11 g. On analysis, it was found to contain dimethyltryptamine and psilocin.

29 The sentencing judge recited in her sentencing remarks the facts and circumstances of the offending.

30 Her Honour then addressed the appellant's personal circumstances. He was born on 26 March 1981. The appellant was aged 29 when the offending occurred and was 30 at the time of sentencing. He has commenced a relationship with a long-term female friend. She continues to support him. His extended family also supports him. The appellant has no children.

31 After leaving school at the end of year 9, the appellant completed a four-year apprenticeship as a diesel fitter. He was then employed for some time as a mechanic. As from 2000 he worked on a fly-in/fly-out basis as a machinery operator and, later, as a water blaster in the mining industry for about five years. The appellant then commenced work in his parents' transport business. This business is based in Karratha. The appellant earned 'good money' while employed in the mining industry. He was able to purchase a home in Perth and had no difficulty meeting the mortgage payments. Indeed, he repaid the mortgage at a faster rate than the minimum commitment.

32 In 2007 the appellant was involved in a motor vehicle accident. He sustained several injuries including back trauma. The appellant was prescribed pain relief medication. At about this time he commenced using illicit substances.

33 The appellant told the author of a pre-sentence report dated 24 January 2012 that he was a 'functioning addict'. He had used amphetamine, methylamphetamine, cocaine and LSD. He was unable to give the author of the report a substantial explanation for his use of illicit substances, other than that he had generalized feelings of depression, relationship difficulties and he was associating with 'the wrong people'. According to the author of the report, the appellant was reticent when discussing the firearms/ammunition offences, but acknowledged having committed the drug offences. He admitted having supplied amphetamine and cannabis to others.

34 The material before the sentencing judge included a psychiatric report dated 9 March 2012 from Dr Sam Febbo, a consultant psychiatrist. Dr Febbo said that the appellant did not suffer from any major psychiatric disorder or any personality disorder, but expressed the view that the appellant had suffered a significant deterioration in his mood at certain times in his life. Dr Febbo noted that the appellant had been a heavy consumer of alcohol since the age of about 20. He expressed the view that if the appellant is able to address his substance abuse then he will be at a low risk of reoffending.

35 The appellant did not have any previous convictions of significance. They were confined to three minor traffic offences. The sentencing judge dealt with him, for sentencing purposes, as a first offender (ts 36).

36 The appellant recounted to Dr Febbo that in 2009, after another motor vehicle accident, he became involved with a group of people who supplied him with methylamphetamine. It is apparent that these people are organized criminals. Dr Febbo states in his report:

[The appellant] said that, as his use of methamphetamines continued, he was, ' ... introduced to some people and said they would look after me'. He said that, initially, he was given the substances without anything being required in return ('nothing to start with'). However, later, he was required to 'get rid of drugs for them' and 'store weapons for them'. He added, 'basically they started controlling what I did'.

...

[The appellant] said that on the day he was apprehended ' ... they wanted me to take a lot of drugs to Karratha'. Karratha is where his father's trucking company is located. He said, 'I didn't want to be part of it [the transfer of substances up north]'. He said that it had been out of fear that he had continued to remain involved until this time. He said, 'I didn't want to risk flying out with drugs [but] they told me I had to'.

[The appellant] said that he went to the airport that morning with the drugs in bags. However, he became ' ... very nervous about getting on the plane' and he actually missed his flight. He rebooked himself for the next available flight, checked his bags in, and then rang his friend to take him home. The flight was scheduled for two hours later.

[The appellant] said that when he got home, he did a few household chores such as washing dishes and it was at this point that he 'heard a couple of loud noises outside'. He said that he then saw individuals at the back of his house, 'the [people] that wanted me to take the drugs'. He said that he went to the front of the house and, 'they started smashing my kitchen window, trying to lift up [the] sliding door'. He ran out of the front of the house and onto someone's front yard. He said, 'that's when I called the police'. The police attended and found the drugs and firearms. The drugs in Karratha were found three days later.

...

[The appellant] said that the money he obtained from providing the substances to others was given directly to the people that provided him with substances. He did not keep any money.

[The appellant] made it clear that, at least for the last six months, he did not wish to be 'a part of it'. However, he was told that he needed to continue with his activities. He said that he knew that 'they would flog me or kill me' if he did not comply.

On specific enquiry in relation to his attitude towards the offences now, [the appellant] said, 'I wish I never started taking drugs in the first place'. He said that the individuals concerned began by, 'being your mates'; however, later considerable pressure is applied.

37 The sentencing judge was prepared to accept, for sentencing purposes, that the appellant telephoned the police when his home was broken into because he was 'truly fearful' of the organised criminals with whom he had become involved (ts 39).

You had enmeshed yourself in the drug world to a major extent and that carries with it the likelihood, in dealing with drugs at this level, that you were mixing with organised crime figures and the presence of so many weapons also supports that inference. You had a positive arsenal of weapons, many of which were loaded and ready to be fired, and many of which had been modified in a way that indicates that they are suitable for use in serious criminal offences (ts 39).

39 The sentencing judge told the appellant that she would sentence him on the basis that he was holding the firearms and ammunition on behalf of the organised criminals and that he would make the firearms and ammunition available to them, as required (ts 39).

40 Her Honour observed that the firearms and ammunition were 'clearly being kept for an entirely unlawful and, frankly, sinister purpose' (ts 40). She noted that many of the firearms had been modified to enable them to be hidden more easily and that the serial numbers on some of the firearms had been removed so that they were untraceable.

41 Although the sentencing judge accepted that the appellant had 'fallen in with a very bad crowd', this was 'not very mitigatory' (ts 40). She found, however, that the appellant 'might well have been manipulated by [the organised criminals] to some extent in the early days' (ts 40).

42 Her Honour emphasised that the appellant had put himself in the position where he could be intimidated or frightened by the organised criminals, and she noted that the appellant continued to benefit from the association:

While you may not personally have seen any financial benefit, you clearly were dealing for commercial gain and it was to your benefit that you continued to do so, to both pay [your drug] debt [to the organised criminals] and to keep on their good side. Of course, while you continued to use [illicit drugs], that debt was never going to go away (ts 41).

43 The sole proposed ground of appeal alleges that the total effective sentence of 8 years 6 months' imprisonment did not bear a proper relationship to the overall criminality involved in all of the offences, having regard to the circumstances in which the offences were committed and factors personal to the appellant.

The merits of the proposed ground of appeal

44 A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error. 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.

45 The guidance afforded by comparable cases is flexible rather than rigid. They do not fix an upper or lower limit. The mere fact that a sentence is within the range of other sentences imposed for similar offences 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 that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

46 The maximum penalty for the offence of possession of a prohibited drug with intent to sell or supply it to another is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the MD Act.

47 The maximum penalty for the offence of possession of a firearm without a licence or permit, where the person was in possession of three or more firearms, is 10 years' imprisonment. See s 19(1ab)(b) of the Firearms Act.

48 The maximum penalty for the offence of possession of an explosive substance is 14 years' imprisonment. See s 557(1) of the Criminal Code.

49 The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. See Bellissimo v The Queen (1996) 84 A Crim R 465, 471. 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. See Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [67] - [70]; Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [50]; Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [52]. The degree of purity is often regarded as significant. See The State of Western Australia v Tran [2008] WASCA 183 [9]. Matters personal to an offender will almost always be given reduced weight. See Bellissimo, (469); Tulloh [12], [43], [46].

50 As to the drug offences in the indictment, I have had regard to the sentencing dispositions in a range of cases including Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522, Stapleton v The Queen [2004] WASCA 130, Monument v The State of Western Australia [2007] WASCA 239 and Tran v The State of Western Australia [2010] WASCA 38. See also the reviews carried out in Tulloh, Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 and The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119.

51 As to the count in the indictment which alleged possession of six firearms while not being the holder of a licence or permit, contrary to s 19(1) read with s 19(1ab)(b) of the Firearms Act, I have had regard to the sentences imposed for similar kinds of offences under the Firearms Act in Huynh v The State of Western Australia [2012] WASCA 8 and Ricciardi v The State of Western Australia [2012] WASCA 106 and the other cases involving unlicensed firearms which are referred to in those decisions.

52 I should mention that I have also examined Karakuyu v The State of Western Australia [2012] WASCA 75 and Smith v The State of Western Australia [2012] WASCA 91. Each of those cases involved offenders who had committed numerous drug and some firearms offences.

53 Counsel for the appellant did not refer to any comparable cases in relation to the count in the indictment which alleged possession of an explosive substance, contrary to s 557(1) of the Criminal Code.

54 The maximum penalties for the charges dealt with pursuant to s 32 of the Sentencing Act are as follows:

s 19(1ad) Firearms Act

s 7(1) Weapons Act

s 6(1) Weapons Act

55 In the present case, the appellant committed some very serious offences. I note, in particular:

(b) The drug offences in the indictment involved the possession, with intent to sell or supply, of different types of drugs. Each possession was a separate occasion for potential harm to the community from the distribution of that drug.

(c) Counts 1 and 7 of the indictment involved, in combination, a substantial quantity of methylamphetamine (107.37 g) at a very high average purity (about 68%). The drugs the subject of these counts could have been diluted substantially to the street level purity of about 12%.

(d) The drugs the subject of the counts in the indictment were being sold for profit as part of a commercial enterprise. It is true that the appellant did not derive any personal financial gain from his drug dealing activities, apart from payments in or towards the reduction or discharge of his drug debt from time to time, but these payments were significantly to his advantage.

(e) The appellant's criminal activities were not momentary or fleeting. This is apparent from his possession of a large quantity of MSM, unused clipseal bags, two sets of digital scales with traces of methylamphetamine, several 'tick' lists, the 'tick' books and the steps being taken to install security cameras at his home.

(f) The firearms and explosive substance offences were malignant. The .22 calibre pen gun found by the police in the drying rack on the kitchen sink was loaded and ready to fire. The appellant apparently possessed that gun for use, as necessary, in his drug dealing activities. He was warehousing the other firearms for organised criminals. Three of these other firearms had been modified to permit their easy concealment on one's person and two of them were loaded and ready to fire. The serial numbers had been removed from some of the weapons. The only reasonable inference is that the organised criminals would take possession of the warehoused firearms, as and when needed, to advance their criminal operations.

(g) The appellant was, no doubt, an attractive agent for the organised criminals. He did not have a prior criminal record of any significance. This reduced the likelihood of the police discovering his unlawful conduct. These facts must have been known to the appellant.

56 In my opinion, the appellant has no reasonable prospect of establishing that the sentencing judge erred in the exercise of her discretion. The total effective sentence of 8 years 6 months' imprisonment bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant

circumstances, including those referable to the appellant personally and the various matters of mitigation mentioned in her Honour's sentencing remarks. The total effective sentence was necessary in order to achieve a just outcome in the sentencing process. It was not disproportionate to the sentencing patterns apparent from comparable cases. Condign punishment and general deterrence were important sentencing considerations.

57 The appellant does not have a reasonable prospect of establishing inferred error, on the basis of the sentencing outcome, as alleged in the proposed ground of appeal.

58 Leave to appeal should be refused and the appeal dismissed.