LAWS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 95 (27 April 2007)

4 There are two grounds of appeal set out in the appellant's case filed on 2 April 2007. They are:

(1) that the sentencing Judge erred in not granting sufficient discount for the pleas of guilty; and

(2) that his Honour erred in not properly applying the totality principle of sentencing in imposing a head sentence of 3 years 4 months.

5 The submissions in support of ground 1 broadly are that there were many matters going in mitigation to the benefit of the appellant, but in particular, his pleas of guilty.

6 It is said on his behalf that the appellant was 38 years of age and had been in custody since 9 June 2006, namely, 7 months and 28 days; he not having been in prison prior to that. He pleaded guilty, it is said, at his earliest opportunity after changing lawyers and after the delays, his counsel says, in receiving poor legal advice previously which lost him the opportunity of a "fast-track" plea.

7 He admitted the facts and it is submitted he was remorseful. Submissions advanced on his behalf were and are that he had excellent prior credentials supported by a 20-year stable de facto relationship with a good employment record supported by numerous references and credentials. He suffered a back injury in 2001 which caused him to get into drug taking and eventually resulted in the separation from his de facto. The submission is that his drug addiction created a spiralling effect on his life and that his drug sales, the subject of the counts, were associated with his addiction and not commercial enterprise.

8 Of course I observe in passing that may be so but the offences were being in possession of prohibited drugs with intent to sell or supply. It is the introduction of the drugs further into the community which is the evil at which the legislation is directed.

9 Mr Sklarz submits that the pre-sentence report indicated the appellant had a positive attitude to rehabilitation and had little likelihood of reoffending and that he is able to resume his de facto relationship being now supported by his de facto partner's continued commitment.

10 The submission in relation to ground 1 really, it seems, comes down to this, as it is put: that his Honour is said not to have granted sufficient discount for the pleas of guilty because he sentenced the appellant without making reference to any specific discount for the pleas; that he made in relation to count 1, in any event, only a passing reference to the changes made by the sentencing legislation in 2003; and that in relation to count 2, it is said his Honour was silent in respect of those matters.

11 This is said to indicate that his Honour did not take sufficient account of the appellant's earliest pleas of guilty, he having, as it is put, previously lost the opportunity of the fast-track plea due to allegedly poor legal advice.

12 The sentencing Judge was clearly conscious the appellant had pleaded guilty. He expressly referred to that fact in his sentencing remarks. He began those remarks by acknowledging the appellant had pleaded guilty to both offences. At t/s 67 he said, having noted the appellant's age was 38 years, that:

"[Y]ou have pleaded guilty to both these charges and I accept that after some lack of willingness to accept responsibility for your offending behaviour, you now fully do so. You are by your pleas of guilty accepting responsibility for your offending behaviour and you are remorseful and I see that you are motivated not to offend again."

13 He then adumbrated a number of factors which had been put to him in mitigation. Later, in expressing his conclusion that the offences were so serious that he must impose sentences of imprisonment, his Honour said (again at t/s 67):

"[I] take into account all the matters that I have referred to."

"[T]he sentence which reflects all the matters that I have referred to and of the changes to the sentencing legislation in 2003 is 16 months' imprisonment."

15 He then went on to deal with the second count saying that the sentence which reflected those things there was 2 years' imprisonment, so that was a total of 3 years 4 months. He observed further that the commission of the second offence was aggravated by having been committed by the appellant whilst he was on bail for the first offence.

16 It is true that his Honour did not expressly quantify the reduction he had made on account of the appellant's pleas of guilty. Although it is desirable for transparency of the sentencing process for the sentencing Judge to state the actual amount of any discount given for a plea of guilty, that is not a requirement of the law (see Fullgrabe v The State of Western Australia [2006] WASCA 138 per Martin CJ at [28], Wheeler JA and myself agreeing)

17 The submissions advanced in support of ground 1 are not put on the basis that the individual sentences are outside the range of sentencing for offences of this kind, such as to indicate their manifest excess must be attributable to insufficient allowance for the pleas of guilty. They are simply that the error is revealed by the brief remarks made by his Honour and to which I have already referred. However, it is apparent from what his Honour said that he did have the appellant's pleas of guilty firmly in mind and that he made allowance for them.

18 Nothing in what he said or did not say reveals the error asserted by this ground. Applying the test in s 27(2) of the Criminal Appeals Act 2004 (WA), as explained in Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 at [50] to [60], I am not satisfied this ground has a reasonable prospect of succeeding on appeal and accordingly, leave to appeal must be refused with respect to it.

19 As to ground 2, the submission is that his Honour erred in not properly applying the totality principle when imposing a head sentence of 3 years 4 months, bearing in mind the favourable personal antecedents of the appellant, and in particular, his drug addiction during the time of both offences as outlined in the pre-sentence reports. In his sentencing remarks the Judge said (at t/s 66 - 68), after noting the maximum penalty applicable to each offence is a fine of $100,000 or 25 years' imprisonment or both, that the facts of the first offence on 24 June 2005 were that police executed a search warrant, and after the appellant made some attempt to ensure the police did not find the drug they nonetheless did discover 11.7 grams of methylamphetamine. They also found $8000 in cash and scales and clipseal bags and other amounts of drugs.

20 The appellant was then charged with that offence and apparently other offences arising out of the execution of the search warrant. He was released on bail. On 24 May 2006 police executed a search, this time in respect of a vehicle in which the appellant was. That was a search under the Misuse of Drugs Act 1981 (WA). They found 19.06 grams of methylamphetamine of 23 per cent purity, together with scales and cash in the sum of $2270.

21 As I have already mentioned his Honour then observed the appellant's age and noted his pleas of guilty and acceptance of responsibility and remorse. He continued to observe that what had happened in the appellant's life was that he had in many ways lived a productive life at work by driving trucks but had suffered a back injury, as a consequence of which he became caught up in drug abuse, and the possession of the drug for sale or supply on these occasions was associated with his own addiction to drugs.

22 His Honour accepted therefore that it was not a case of a commercial enterprise where the only aim was to make a profit but rather that the appellant was seeking to support his own drug habit. His Honour went on to say the fact that the appellant was addicted to drugs was not mitigating but the fact that he was motivated to rehabilitate himself and not get caught up in drug abuse again was to his credit.

23 He noted the references which had been provided to him and the appellant's de facto partner's letter of support which showed her loyalty and that at least she saw in him fine qualities that warranted her continued support notwithstanding what he had done. His Honour then acknowledged that methylamphetamine is a dreadful drug which has had a devastating impact upon the appellant's life and that every day in court one sees its consequences generally being the adverse effects caused to people who use the drug and become addicted to it. It produces consequences where people steal and commit burglaries and violent robbery offences to obtain money to support the drugs and also is involved in motor vehicle offences of dangerous driving, indeed, and accidents causing death all associated with the use of the drug. His Honour expressly adverted to these considerations and said that in arriving at the appropriate sentence he needed to consider punishing the appellant, deterring him and deterring others who attempt to distribute the drug within the community.

24 He said he had decided the offences were so serious that he had to impose sentences of imprisonment. He took into account all of the matters to which he had referred and noted also that the appellant did not have a significant record; and indeed, did not have a record of offending anywhere near as serious as the present offences but nonetheless the need for general deterrence was an important factor in the case of distributing this drug in the community. His Honour then proceeded to impose the sentences which I have mentioned.

25 There was undoubtedly much to be said in mitigation and Mr Sklarz did so. In the end, however, sentencing is the exercise of a discretion and an appeal court may not interfere merely because it may have exercised its discretion differently than the sentencing Judge did (Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]). What must be shown is that the sentence is so far outside any comparable range or so disproportionate to the circumstances that no reasonable exercise of the discretion could have produced it (House v The King [1936] HCA 40; (1936) 55 CLR 499).

26 In Regan v The State of Western Australia [2005] WASCA 240 at [10], this Court said:

"To determine whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by the law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender: R v Chan (1989) 38 A Crim R 337 at 342."

27 So far as the totality principle is concerned the court said at [11]:

"The totality principle requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307 - 308. The total sentence imposed on an offender must bear a proper relationship to the overall criminality involved in various offences, viewed in their entirety and having regard to the circumstances of the case, including those referrable to the offender personally: Woods v The Queen (1994) 14 WAR 341 at 352 per Anderson J. In assessing whether the aggregate of all the sentences is appropriate for the criminal conduct being punished, the aggregate may be seen to be inappropriately long even if the total sentence cannot be described as 'crushing': Jarvis v The Queen (1993) 20 WAR 201 at 216 per Anderson J; Johnson v The Queen [2004] HCA 15 at [22]."

28 In his submissions counsel for the appellant refers to what was said by Wheeler JA in Miller v The State of Western Australia [2006] WASCA 163 at [22] to the effect that in her Honour's view it would be preferable to apply the one-third reduction at the very end of the sentencing process:

"[I]n order to check again whether the total sentence is appropriate, some notional reconversion to equate the sentence with that which would have prevailed prior to the transitional provisions may be desirable."

29 It is not immediately apparent how, in the appellant's submissions, that is said to bear upon this ground. As I apprehend it, the complaint briefly put is that the aggregate sentence is disproportionate to the appellant's overall offending. In any event that particular remark by Wheeler JA and the proper approach to be taken to the effect of the Sentencing Act transitional provisions in respect of the totality principle when sentencing was explained in Hapke v The State of Western Australia [2006] WASCA 188 per Steytler P, at [3] - [5], and per Roberts-Smith JA at [105] - [111].

30 To deal with the point of this ground then, it is necessary to consider whether the aggregate term of 3 years 4 months can be said to be so disproportionate to the overall criminality of the appellant as to be manifestly excessive.

31 The first thing to bear in mind is that both personal and general deterrence will ordinarily override factors personal to the offender (Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 at [12]; Bellissimo (1996) 84 A Crim R 465). That is the view his Honour took here. He was entitled to do so. So far as the general range of sentences for offences of this kind is concerned, both the individual sentences and the aggregate here fall well within it by comparison with such cases as Leonard v The Queen, unreported, CCA SCt of WA; Library No 990152; 29 March 1999; Samuel v The State of Western Australia [2004] WASCA 154; Wong v The State of Western Australia [2004] WASCA 286; Koushappis v The Queen [2001] WASCA 18; Ditri v The State of Western Australia [2006] WASCA 283; Vogel v The Queen [2002] WASCA 261; Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246; Colangelo v The State of Western Australia [2004] WASCA 294; Brittain [2001] WASCA 117; (2001) 121 A Crim R 525; and Borbil v The State of Western Australia [2007] WASCA 24.

32 That list is by no means exhaustive, and of course the facts and circumstances are all different. However, I am not persuaded this ground, against or by reference to those cases at least, has a reasonable prospect of succeeding on appeal. Leave to appeal must therefore be refused in relation to it.

33 As leave to appeal is refused on each of the only two grounds sought to be advanced on this appeal the appeal will be dismissed pursuant to s 27(3) of the Criminal Appeals Act and r 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 (WA).