Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

File No : IND 112 of 2005, IND 444 of 2004

Criminal law - Appeal - Sentencing - Parity - Totality - Turns on own facts

Misuse of Drugs Act 1981 (WA), s 6(1)(a)

1 The appellant was convicted by his own pleas of guilty of one count of possession of methylamphetamine with intent to sell or supply ("count 1") and one count of possession of somatropin with intent to sell or supply ("count 2"). Both offences arise from s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The appellant was sentenced to 6 years' imprisonment in relation to the first count and 1 year's imprisonment in relation to the second count. The sentences were ordered to be served cumulatively, giving rise to an aggregate sentence of 7 years.

2 This appellant appeals against the sentences on two grounds, leave having been refused in respect of proposed grounds 1 and 3, but granted in respect of grounds 2 and 4. One ground (ground 2) raises a parity issue in relation to the appellant's co-offender Toothill. Ground 4 asserts that the cumulative structure of the individual sentences was contrary to the totality principle.

3 The relevant facts were set out by the learned sentencing judge and can be summarised as follows. The appellant was the subject of undercover police surveillance and an interception warrant in relation to his mobile telephone. Intercepted conversations between the appellant and his co-offender, Toothill, made it clear that there was going to be a journey to Balcatta on 23 August 2004 to collect a large quantity of methylamphetamine.

4 On 23 August, the two men had a number of telephone discussions about the manner in which the drugs were to be collected and the place where they were going to be left. Later that day, the appellant travelled to a street in Balcatta in a vehicle driven by Toothill. The appellant then took a bicycle from the vehicle and rode it to a prearranged meeting point with an unknown associate while Toothill drove to a nearby service station.

5 Some minutes later, the appellant was observed riding the bicycle to the service station with a backpack which he did not have when he first left the vehicle. He deposited the backpack in some shrubs in a nearby street before leaving the scene. The backpack was later found to contain 499 grams of methylamphetamine which had a purity of 78%.

6 Later that night, the police searched the appellant's home and found some items connected with the sale and distribution of drugs, including approximately $22,860 in cash, a set of scales and numerous notes containing information indicating drug deals. The police also searched the business premises and place of residence of another co-accused, Dwight, and found 24 boxes of somatropin in the refrigerator. Somatropin is a prescribed human growth hormone which is intended only for children and is obtainable on prescription. If used in an uncontrolled way, it can have deleterious effects. There were telephone intercepts in which the appellant referred to selling that drug. It appears that half of the somatropin would be used by the appellant in an attempt to alleviate his neck pain, while the other half would be sold.

7 The appellant surrendered himself to the police later that day. In relation to count 1, the appellant pleaded guilty after a listing date for trial had been given, but some time before the trial date. The guilty plea in relation to count 2 was entered before the matter was listed for trial.

The appellant's role and personal circumstances

8 The appellant was 37 years old at the time of sentencing and had a relatively minor prior record of driving offences. He had been in gainful employment for much of his adult life, and shared with his former partner the custody of their young daughter. The appellant played professional football until 1997, when a work-related injury put an end to his football career and significantly affected his ability to work. Following that injury, it seems that the appellant started to use amphetamines.

9 While the sentencing judge considered that the offences were "out of character", his Honour noted that the appellant played an important role in their commission (ts 296):

In relation to the ... methylamphetamine, that role could be determined by listening to the telephone intercepts and the other material on the brief and from the undercover officers. Your role was an important one in the distribution. You obviously weren't the manufacturer but you were close to people who were close to the manufacturer because they trusted you to pick up this extremely large amount and very valuable amount of methylamphetamine.

...

As to the somatropin, that was a drug that you with your co-offender, Dwight, decided to use to give you some relief from the pain in relation to your neck and it was decided that you would use half of it and sell the other half to cover the cost and that's clear, as I said, from some of the telephone intercepts ...

10 It is not clear precisely what discount his Honour applied to the sentences. However, the learned sentencing judge expressly referred to the mitigatory factors which he took into account - namely, the appellant's guilty pleas, co-operation with authorities and lack of relevant prior convictions. His Honour also referred to material which the appellant's trial counsel brought to the court's attention, and which indicated remorse and a realisation of the harm that the appellant had caused to himself and others. His Honour had regard to the fact that the declaration that the appellant was a drug trafficker would result in the deprivation of property which had not been derived from the commission of these offences (or apparently from the commission of any offences).

11 As I have noted, the appellant and Toothill were co-offenders in relation to the 499 grams of methylamphetamine. Toothill was charged with two additional offences relating to a much smaller quantity of methylamphetamine and a quantity of MDMA. He entered a plea of guilty in relation to the smaller quantities of drug, but was convicted after trial in relation to the 499 grams. The total effective sentence ultimately imposed upon Toothill was one of 4 years and 8 months' imprisonment, with an order for parole eligibility. However, the State appealed that sentence. That appeal was successful. In respect of the 499 grams of methylamphetamine, there was substituted for the head sentence of 4 years and 8 months, a sentence of 6 years' imprisonment .

12 It can be seen that, following the State's appeal, the sentence imposed upon this appellant is the same as that imposed upon his co-offender, Toothill. Were it not for the difference in their roles, one would have expected the appellant's sentence to be lower than that imposed upon Toothill, since the appellant entered a plea of guilty (albeit not at the first opportunity) and had relatively good antecedents.

13 However, the appellant's role in the offending relating to the 499 grams was more significant than that of Toothill. Toothill was an addict who, because of his drug addiction and low wages, would sell small amounts of drugs to friends to pay for his habit. As I have noted, the learned sentencing judge considered, in the appellant's case, that he was close to people who were close to the manufacture of methylamphetamine, and was obviously trusted to pick up what his Honour correctly described as "this extremely large amount and very valuable amount" of methylamphetamine. His Honour noted that 78% purity is a very high percentage of purity and that this drug at street level is generally dealt with at somewhere between 3% and 10% purity. His Honour further noted the drug-related material found at the appellant's house.

14 His Honour's view, which I would respectfully accept, was that the appellant had played a greater role in the offending in relation to the methylamphetamine than Toothill. In those circumstances, it is my view that there is no issue of parity which arises in relation to the sentence imposed upon Toothill. The sentence in respect of the methylamphetamine was otherwise entirely appropriate. Indeed, having regard to the appellant's role and the considerable quantity of the drug, it would have been open to his Honour to have imposed a sentence greater than that of 6 years. That observation is relevant in relation to the totality ground.

15 It is apparent from the summary of the offending, that the somatropin and the methylamphetamine offences appear to be linked only in time. There is nothing to indicate that the somatropin came from the same source, or was in any way a mere by-product of the appellant's methylamphetamine enterprise. Rather, it was the product of a discrete arrangement which he had made with Dwight. There was therefore no reason for any sentence in relation to the somatropin to be imposed other than cumulatively, totality considerations aside.

16 It is clear that his Honour expressly considered totality. In relation to the somatropin, he said that he would have imposed a sentence of 3 years' imprisonment in respect of the somatropin, but "because of totality" his Honour reduced that term to one of 1 year's imprisonment to be served cumulatively upon the 6 years already imposed.

17 In my view, this was a case in which it would have been open to his Honour, consistently with principle, to have structured the sentence in a number of ways. It would have been open to him to have taken the view that, notwithstanding that the offending in relation to the somatropin was serious, it paled into insignificance compared with the offending in respect of the methylamphetamine. It would therefore have been open to his Honour to have imposed concurrent sentences in respect of the two offences. That would have been the appropriate course if, for example, his Honour had imposed a severe sentence in respect of the methylamphetamine.

18 However, as I have indicated, the sentence imposed in respect of the methylamphetamine was, having regard to standards of sentencing appropriate for such offences, a moderate one having regard to the quantity and purity of the drug and the role played by the appellant (see Bosworth v The State of Western Australia [2007] WASCA 144, [40], [41] per Miller AJA). In those circumstances, the imposition of a concurrent sentence in respect of the somatropin would not have appropriately reflected the totality of the appellant's criminality.

19 In Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616, the majority in the High Court expressed a preference for what they called the "orthodox" method of adjusting sentences in order to take account of totality issues. That method is to fix the appropriate sentence for each offence or offences and then to make orders for concurrency, or partial concurrency, to arrive at an appropriate overall sentence (at [26]). However, their Honours acknowledged that a reduction of an otherwise proper sentence is also a permissible method of dealing with totality issues and that judges should be allowed as much flexibility in sentencing as is consonant with consistency of approach and accords with the statutory regime under which the sentence is effected. The reduction of an otherwise proper sentence in respect of the somatropin was the way in which his Honour in the present case dealt with totality issues. The overall term of 7 years' imprisonment is not disproportionate to the appellant's criminality. The appeal must therefore be dismissed.