Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Appellant convicted after trial on two counts of possession of cannabis with intent to sell or supply and one count of conspiracy to sell or supply cannabis - Total effective sentence of 6 years' imprisonment - Totality principle - Parity principle

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(c), s 33(2), s 34(1)(a), s 34(1)(b), s 34(2)(a)

Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186

Bowman v The Queen (1993) 69 A Crim R 530

Brown v The State of Western Australia [2008] WASCA 48

Day v The Queen [2001] WASCA 284; (2001) 127 A Crim R 403

Eacott v The State of Western Australia [2009] WASCA 112

Fazari v The Queen (Unreported, WASCA, Library No 960651, 14 November 1996)

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

Kennedy v The Queen (Unreported, WASCA, Library No 980145, 3 April 1998)

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

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

Noble v The Queen [2003] WASCA 83

Poole v The Queen [1999] WASCA 46; (1999) 106 A Crim R 459

R v Lyon [2001] WASCA 120; (2001) 121 A Crim R 440

Rodi v The State of Western Australia [No 2] [2014] WASCA 233

Stoysich v The State of Western Australia [2014] WASCA 208

The State of Western Australia v Malone [2015] WASCA 188

Trajkoski v The State of Western Australia [2008] WASCA 130

3 The appellant was charged on indictment with three counts.

4 Count 1 alleged that between 2 January 2013 and 31 January 2013, at South Lake, the appellant had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act).

5 Count 2 alleged that between 16 January 2013 and 31 January 2013, at South Lake, the appellant and his brother, Keaton John McRobb, had in their possession a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act.

6 Count 3 alleged that between 1 January 2013 and 31 January 2013, at Perth, the appellant and Mr Keaton McRobb conspired together to sell or supply a prohibited drug, namely cannabis, to another or others, contrary to s 6(1)(c) read with s 33(2) of the Act.

7 The appellant pleaded not guilty. After a trial in the District Court, before Keen DCJ and a jury, he was convicted on all counts.

8 The maximum penalty for each of counts 1 and 2 is 10 years' imprisonment or a fine of $20,000 or both. See s 34(2)(a) read with s 34(1)(a) of the Act. The maximum penalty for count 3 is 20 years' imprisonment or a fine of $75,000 or both. See s 34(1)(b) read with s 33(2) of the Act.

9 On 23 March 2015, the trial judge imposed individual sentences, as follows:

10 His Honour reduced the sentence he would otherwise have imposed on count 1 from 4 years' immediate imprisonment to 2 years' immediate imprisonment in the application of the totality principle (ts 964 - 965).

11 The trial judge ordered that the sentences for counts 1 and 2 be served cumulatively and that the sentence for count 3 be served

concurrently. The total effective sentence was therefore 6 years' imprisonment. His Honour backdated the sentence to 3 March 2015. A parole eligibility order was made.

13 Ground 1 alleges in essence that the total effective sentence infringed the first limb of the totality principle.

14 Ground 2 alleges in essence that the total effective sentence infringed the parity principle or the principle of equal justice in that the disparity between the total effective sentence imposed on the appellant and the total effective sentence imposed on a related offender, Daniel Martin Malone, was in all the circumstances such as to give rise to a justifiable sense of grievance on the appellant's part.

15 None of the individual sentences is challenged. It is not contended that the trial judge made any express error.

16 On 14 June 2015, Mazza JA referred the application for leave to appeal on each ground to the hearing of the appeal.

The facts and circumstances of the offending

17 The facts and circumstances of the offending, as found by the trial judge, were, in summary, as follows.

18 During 2012 and 2013 cannabis was being imported into Western Australia from South Australia. The importation was achieved by packaging the drugs into cardboard boxes, which were then sent by courier from South Australia to Western Australia. Upon arrival in Perth, the boxes were delivered to premises in Wembley.

19 Mr Malone was the 'primary importer' into Western Australia.

20 The boxes contained cannabis which had been cryo-packed in one pound lots. Each box held about 10 kg of the drug.

21 As to count 1, on 3 January 2013 Mr Malone collected two boxes from the Wembley premises. He then delivered one of the boxes to the appellant's home in South Lake. His Honour was satisfied that the box would have contained about 10 kg of cannabis.

22 As to count 3, on 6 January 2013 the appellant left Western Australia to travel for an extended holiday of about six weeks in South America. Before he travelled to South America, the appellant made an agreement with Mr Keaton McRobb that Keaton would, in the appellant's absence, look after and run the appellant's business of selling cannabis.

23 The trial judge was satisfied that, before his departure, the appellant prepared and gave Mr Keaton McRobb a document that was headed 'Routine' on one side and 'Money' on the other. The document contained instructions from the appellant to Mr Keaton McRobb as to how to run the drug business. The document listed nine customers. The document referred to the distribution of cannabis in various quantities, namely pound lots, at different prices depending upon the particular customer. The price was described within a range between $4,400 and $4,800 per pound. The document also stated, '[n]eed to keep turnover at min 40 wk try for 44'. The document stated under the heading 'Money':

You Can Pull out $3K/wk + Stash.

Put the rest back into the system.

Always check where the money in the system is up to. Just Base the return on $300.

I expect it should be near 100 000 by the time I get back.

24 His Honour said it was 'by no means clear' from this document 'how much profit [the appellant was] making' and his Honour 'would not be prepared to speculate on this' (ts 959).

25 As to count 2, during the subsistence of the conspiracy alleged in count 3, and while the appellant was overseas, another related offender, Nichola Cooper, met Mr Malone at the Wembley premises at the request of another related offender, Daniel Said. On 17 January 2013, Ms Cooper collected two boxes (each box containing about 10 kg of cannabis) from Mr Malone. She delivered them to the appellant's home in South Lake. The appellant had procured Mr Keaton McRobb to possess the cannabis in the boxes with a common intent to sell or supply it to another or others while the appellant was overseas.

26 The appellant knew Mr Said. They worked together from time to time and socialised from time to time. Mr Said and Ms Cooper knew Mr Malone and his partner and they socialised from time to time.

27 The appellant was a dealer in cannabis who had a number of customers. He took possession of cannabis in one pound packages and sold them to his customers at prices between $4,400 and $4,800 per pound. The appellant carried on his drug dealing business purely for commercial purposes. The business involved 'not insignificant amounts of money' (ts 956).

28 The trial judge was satisfied that the appellant's level in the drug distribution hierarchy was below that of Mr Malone, but was 'still substantial'. The appellant was 'clearly more than just a street dealer in cannabis' (ts 956).

29 His Honour found that the appellant was 'not far removed from the source of [the] drugs in South Australia'. The extent of his drug dealing business was demonstrated by the fact that, when Mr Keaton McRobb was arrested, he was in possession of about $70,000 cash. His Honour was satisfied that the money came from the appellant's drug dealing business and that Mr Keaton McRobb was collecting money on the appellant's behalf during his absence overseas. His Honour was unable to determine how much of the cash of about $70,000 was profit and how much was ultimately to be returned to the syndicate in South Australia. However, his Honour said it was 'clear' from the document which the appellant had prepared and given to Mr Keaton McRobb that the appellant was 'dealing in fairly large quantities of cannabis' (ts 958 - 959).

30 The trial judge commented that the document had 'all the language and all the hallmarks of an established drug distribution business rather than one that merely arose from the delivery on 3 January [2013]', the subject of count 1 (ts 963). However, he could 'put it no higher than it creates a suspicion' (ts 963).

31 The appellant was aged 27 at the time of the offending and was 29 when sentenced. He was a carpenter and joiner and had run his own construction business for seven years. He did not take any prohibited drugs and he did not have any prior convictions.

32 The appellant did not show any remorse. He continued to deny his guilt.

33 Mr Malone was charged on indictment with numerous drug offences.

34 Counts 1 to 15 inclusive alleged that on various dates between 18 October 2012 and 23 January 2013, at Wembley, Mr Malone had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act.

35 Count 16 alleged that between 1 January 2013 and 2 February 2013, at Perth, Mr Malone attempted to possess a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the Act.

36 Counts 1 to 15 inclusive concerned 15 separate and distinct offences committed between 18 October 2012 and 23 January 2013. On each occasion Mr Malone received a significant quantity of cannabis from an interstate cannabis trafficking syndicate which was carrying on business from South Australia.

37 Count 16 concerned an offence committed between 1 January 2013 and 2 February 2013. On this occasion Mr Malone did not receive the cannabis because he had been arrested and the police intercepted the box containing the drug.

38 The quantity of cannabis received by Mr Malone on each occasion varied. In some cases, it was about 10 kg and, on others, about 40 kg. Mr Malone then on-sold the cannabis through his associates. One associate was Mr Said, who acted as an intermediary in certain transactions for various Western Australian customers. Mr Said's partner, Ms Cooper, assisted him occasionally by collecting boxes containing cannabis.

39 The total estimated weight of the cannabis involved in counts 1 to 16 inclusive was about 330 kg. It had an estimated street value of about $2.9 million. These estimates appear to have been conservative.

40 Mr Malone paid for the cannabis by sending large amounts of cash to the syndicate through the Australia Post system. The police identified 14 occasions on which Mr Malone sent money to the syndicate. On eight of these occasions the amounts were able to be established and they ranged between $90,050 and $199,230. Overall, Mr Malone sent well in excess of $800,000 to the syndicate in payment for the cannabis he had received.

41 Mr Malone made limited admissions when he was questioned by police.

42 Mr Malone was convicted, as charged, upon his pleas of guilty. The pleas were entered after he was committed to the District Court for trial, but at an early stage in the District Court proceedings. The sentencing judge, Martino CJDC, allowed a discount of 15%, pursuant to s 9AA of the Sentencing Act 1995 (WA), on the head sentence he would otherwise have imposed for each offence.

43 On 7 October 2014, Martino CJDC sentenced Mr Malone to 4 years 3 months' immediate imprisonment on each count. All of the individual sentences were ordered to be served concurrently. The total effective sentence was therefore 4 years 3 months' immediate imprisonment. His Honour backdated the sentence to 6 October 2014. A parole eligibility order was made.

44 The State appealed to this court against the total effective sentence imposed on Mr Malone. The appeal has been allowed. This court has resentenced Mr Malone to a total effective sentence of 7 years 6 months' imprisonment. See The State of Western Australia v Malone [2015] WASCA 188.

45 Mr Said and Ms Cooper were each convicted, on his or her plea of guilty in the District Court before Bowden DCJ, on one count of possession of a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act.

46 Details of the sentences imposed on Mr Said and Ms Cooper are set out in this court's reasons in Malone [60] - [66].

47 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.

48 The severity or leniency of individual sentences is relevant in evaluating whether a total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA, McLure P & Pullin JA agreeing).

49 In Lester v The State of Western Australia [2011] WASCA 128, McLure P (Newnes JA & Hall J agreeing) reviewed a number of cases in which this court or the Court of Criminal Appeal considered sentences imposed for offences involving the possession of cannabis with intent to sell or supply or the cultivation of cannabis with intent to sell or supply. The cases reviewed by her Honour included R v Lyon [2001] WASCA 120; (2001) 121 A Crim R 440; Day v The Queen [2001] WASCA 284; (2001) 127 A Crim R 403; Noble v The Queen [2003] WASCA 83; Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186; Brown v The State of Western Australia [2008] WASCA 48; Trajkoski v The State of Western Australia [2008] WASCA 130; Nguyen v The State of Western Australia [2009] WASCA 8; and Eacott v The State of Western Australia [2009] WASCA 112. See also Bowman v The Queen (1993) 69 A Crim R 530; Fazari v The Queen (Unreported, WASCA, Library No 960651, 14 November 1996); Kennedy v The Queen (Unreported, WASCA, Library No 980145, 3 April 1998); Poole v The Queen [1999] WASCA 46; (1999) 106 A Crim R 459; and Rodi v The State of Western Australia [No 2] [2014] WASCA 233.

50 It is unnecessary to reproduce the facts and circumstances of or the sentences imposed in the cases I have mentioned. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.

51 In Day, decided in 2001, Steytler J (Miller J relevantly agreeing) made the following comments about the range of sentences commonly imposed for offences involving the cultivation of cannabis plants with intent to sell or supply cannabis to another:

This Court has, more recently, taken a more serious view of the threat which the trade in cannabis poses than has previously been the case. (See Kennedy v R unreported; CCA SCt of WA; Library No 980145; 3 April 1998, per Malcolm CJ at 13 and 14). That fact, together with the increasing prevalence of commercial trafficking in cannabis, requires that there be some firming up of the sentences imposed on offenders who fall into the category of drug traffickers. (See R v Lyon [2001] WASCA 120 at [36] per Anderson J, with whom the other members of the Court were in agreement). That being so, it should not be assumed that the existing range of sentences continues to provide a reliable guide [38].

52 Similarly, in Lester, decided in 2011, McLure P said:

The court has since 2001 repeatedly stated that it takes a more serious view of the threat the cannabis trade poses to society and the increased prevalence of it. The risk correlation between the use of cannabis and mental illness and progression to harder drugs is a familiar theme in sentencing materials in more recent times.

Deterrence is the main sentencing consideration for dealing in prohibited drugs, including cannabis, and matters personal to the offender are accorded correspondingly less weight. In the past five years at least there has been a tangible, incremental firming up in the sentences imposed for dealing in other types of prohibited drugs. That is not obviously so in the sentencing of offenders for dealing in cannabis, notwithstanding the identified need [21] - [22].

53 In the present case, the appellant's offending was, no doubt, serious. Count 3 (being the conspiracy offence) was especially egregious. In particular:

(a) The appellant performed a significant function in a well-organised drug distribution operation. He carried on, within that operation, his own drug dealing business purely for commercial purposes. The business involved 'not insignificant amounts of money'. The appellant was 'not far removed from the source of [the] drugs in South Australia'. He was 'dealing in fairly large quantities of cannabis' (ts 956, 958 - 959).

(b) The scale of the appellant's drug dealing business is apparent from the document headed 'Routine' on one side and 'Money' on the other, which the appellant prepared and gave to Mr Keaton McRobb before the appellant departed on the extended holiday in South America. This document listed nine customers. The appellant sold cannabis to his customers in one pound lots, for between $4,400 and $4,800 a pound. The document indicated that during the six-week period when Mr Keaton McRobb was to be running the appellant's drug dealing business, the anticipated revenue was about $100,000. Indeed, when Mr Keaton McRobb was arrested, he was in possession of about $70,000 cash. This amount comprised the proceeds of cannabis sales. The trial judge was unable to determine how much of the cash of about $70,000 was profit and how much was ultimately to be returned to the syndicate in South Australia.

(c) It is true that his Honour did not make a finding that the appellant's drug dealing business was established before 3 January 2013. However, it is plain that the business was well established by 6 January 2013 (when the appellant left Western Australia for South America), and the business only ceased operating because the appellant and Mr Keaton McRobb were apprehended by the police.

54 The appellant was, of course, entitled to proceed to trial. However, he was unable to claim the mitigation that pleas of guilty would have brought.

55 The appellant evinced no remorse. He continued to deny that he committed the offences of which he was convicted.

56 The appellant was not youthful or inexperienced for sentencing purposes.

57 It is true that the appellant did not have a prior criminal record and that his antecedents were favourable. However, personal circumstances of that kind are accorded less weight in sentencing for serious drug offences.

58 The appellant is, of course, only to be punished for the offences with which he was charged and of which he was convicted. That is, he is not to be punished for other offences he may have committed but with which he was not charged.

59 In my opinion, the total effective sentence of 6 years' imprisonment was of a severity that was appropriate in all the circumstances of the case. The length of the sentence was commensurate with the seriousness of the overall offending.

60 I am satisfied, after examining all relevant facts and circumstances and all relevant sentencing factors (including all matters of mitigation), that the total effective sentence bears a proper relationship to the criminality involved in all of the offences, viewed together. The proper exercise of the trial judge's discretion required some accumulation of the individual sentences in order to mark the serious nature of the appellant's overall offending and to reflect the important sentencing considerations of personal and general deterrence. There is no basis for implying or inferring error, based on the first limb of the totality principle, from the sentencing outcome.

62 The parity principle or the principle of equal justice is described in my reasons (Martin CJ & Mazza JA agreeing) in Stoysich v The State of Western Australia [2014] WASCA 208 [39] - [45].

63 In the present case, the appellant received a total effective sentence of 6 years' imprisonment. At first instance, Mr Malone received a total effective sentence of 4 years 3 months' imprisonment. However, as I have mentioned, this court has allowed the State's appeal against Mr Malone's sentencing and his total effective sentence has been increased by this court to 7 years 6 months' imprisonment.

64 There is no doubt that the overall objective criminality of Mr Malone's offending was significantly more serious than the overall objective criminality of the appellant's offending. That is the only conclusion reasonably open when regard is had to:

(a) the total weight and total value of the cannabis the subject of their respective offending;

(b) the number of offences committed by Mr Malone compared to the number of offences committed by the appellant;

(d) Mr Malone's level in the drug distribution hierarchy compared to that of the appellant; and

(e) the very substantial profits made by Mr Malone from his criminal enterprise and the absence of a comparable finding against the appellant on that issue.

65 However, on the other hand, Mr Malone entered pleas of guilty whereas the appellant went to trial and, even after his conviction as charged, he continued to deny his criminality.

66 Also, Martino CJDC found that Mr Malone had diminished 'intellectual ability in certain significant areas' compared to 'many people in the population' (ts 51). In particular, he had an impaired capacity to communicate ideas and understand problems. His Honour's finding was not challenged by the State in its appeal to this court. No comparable finding was made by the trial judge in relation to the appellant.

67 Otherwise, the personal circumstances and antecedents of Mr Malone, viewed as a whole, were not materially different from the personal circumstances and antecedents of the appellant, viewed as a whole.

68 I am satisfied, after evaluating and weighing all relevant sentencing factors, in the context of the facts and circumstances of the overall offending by Mr Malone and the overall offending by the appellant, and after taking into account the similarities and differences between their overall offending and their personal circumstances and antecedents, that the total effective sentence imposed on the appellant by the trial judge did not infringe the parity principle or the principle of equal justice. The total effective sentence imposed on the appellant, compared to the total effective sentence imposed by this court on Mr Malone, does not reveal a marked and unjustifiable absence of disparity, that is adverse to the appellant and favourable to Mr Malone. The total effective sentence imposed on the appellant, compared to the total effective sentence imposed by this court on Mr Malone, does not give rise to a legitimate or justifiable sense of grievance on the appellant's part, and is not such as to give the appearance in the mind of an objective observer that justice has not been done as between the appellant and Mr Malone or generally.

70 I would grant leave to appeal on each ground of appeal. However, neither of the grounds has been made out. The appeal must therefore be dismissed.