O'MALLEY -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 8 (14 January 2021)

(1) the appellant did not have an intention to sell or supply the methylamphetamine other than to supply approximately 8.3 g to each of his co‑purchasers;[15] and

(2) the appellant made a 'profit measured more in terms of the actual drug itself than in dollar notes' by getting a 'one‑third share of the drugs at a heavily discounted price [$800] even if expenses of travelling to and from Perth are allowed'.[16]

1. The appellant was aged 35 when he committed the offence and 36 when he was sentenced. He left school at the end of year 10 and has a Certificate 3 in Warehousing and Distribution. He has been employed as a mechanic and spray‑painter. More recently, he has conducted his own business in the automotive and bodywork industry.[17]
2. The appellant has a child from a prior relationship. The appellant's current partner has a young daughter and together they are expecting a baby in early 2021.[18]
3. The appellant has a history of illicit drug use which began with cannabis in his teenage years and progressed to methylamphetamine in his twenties. In his thirties, the appellant used methylamphetamine on a daily basis.[19] In the past, the appellant had unsuccessfully sought help from a general practitioner to stop using methylamphetamine.[20] More recently, the appellant had taken some steps towards his rehabilitation by attending alcohol and drug counselling and, in March 2019, self‑reporting to a psychologist for further help.[21]
4. While the appellant has taken some steps towards addressing his illicit drug use, it is clear that his rehabilitation is by no means complete. The appellant accepted that he was using methylamphetamine two weeks prior to being interviewed by the author of the pre‑sentence report that was provided to the sentencing judge.[22]
5. The appellant has a lengthy criminal history for traffic, firearm and public disorder offences. Significantly, the appellant has prior convictions for drug offences including, in 2013, for possession of methylamphetamine with intent to sell or supply, and supplying methylamphetamine for which he was fined $1,000 and $500, respectively.[23]
6. A psychological report tendered to the sentencing judge revealed that the appellant does not have any thought or perceptual abnormalities.[24]
7. Apart from coeliac disease, which has been treated with a change of diet, the appellant otherwise appears to be in good physical health.[25]

1. The most significant mitigating factor identified by his Honour was the appellant's plea of guilty. Pursuant to s 9AA of the Sentencing Act 1995 (WA), his Honour gave a reduction of 20% for the plea of guilty. In addition, his Honour found that the appellant was remorseful and that he had taken some steps towards his rehabilitation.[26]
2. His Honour found that the appellant, on his own admission, intended to distribute two lots of methylamphetamine weighing approximately 8.3 g each to the co‑purchasers of the methylamphetamine. His Honour observed that the appellant could not have been sure what the co‑purchasers would have done with the drugs. The sentencing judge accepted that the appellant's offending was 'really to sustain [his] drug habit' and that there was no feature of the offence 'which particularly aggravates it'.[27]
3. His Honour gave prominence to the well‑known sentencing objectives for offences of drug trafficking of general and personal deterrence, as well as community protection.[28]

1. The general principles governing appeals which, as in this case, allege inferred error on the basis that an individual sentence is manifestly excessive or that a total effective sentence infringes the totality principle are well established. We adopt, without repetition, the statement of these general principles made by this court in Kabambi v The State of Western Australia.[29]
2. It is also well established that for offences of dealing or trafficking in dangerous drugs such as methylamphetamine, the major sentencing considerations are general and personal deterrence. Matters personal to an offender, while not irrelevant, will almost always be subsidiary considerations.[30]

1. Counsel for the appellant accepted that the sentence imposed by his Honour fell within the range of sentences customarily imposed for offences of the kind committed by the appellant. However, counsel submitted that the offending lacked the commerciality frequently seen in other cases and that, in such circumstances, the sentence imposed upon the appellant was manifestly excessive.[31]

1. In our opinion, it is not reasonably arguable that the sentence of 3 years 6 months' immediate imprisonment was unreasonable or plainly unjust.
2. We begin with a consideration of the comparable cases. We have reviewed the sentencing cases referred to in the appellant's written submissions, including Cartwright v The State of Western Australia;[32] Dinh v The State of Western Australia;[33] The State of Western Australia v Delaney[34] and Italiano v The State of Western Australia,[35] along with other relevant cases including Stewart v The State of Western Australia;[36] Potaka v The State of Western Australia;[37] Leckie v The State of Western Australia[38] and Towler v The State of Western Australia.[39] It is unnecessary to set out the facts and circumstances of these authorities. As counsel for the appellant correctly accepted, the sentence imposed in the present case is not outside the range of sentences customarily imposed. Of course, this does not inexorably lead to the conclusion that leave to appeal should be refused and the appeal dismissed. Each case must be decided on its own particular facts and circumstances. The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion in a particular case.
3. The appellant submitted that what particularly distinguishes the present case from other cases decided by this court is the absence of any finding that the appellant engaged in the distribution of methylamphetamine for commercial gain, that is, to make a profit.[40]
4. Had the sentencing judge found that the appellant's offending was motivated to any significant degree by the desire to make a profit, that would have been an aggravating factor. However, the absence of this aggravating factor does not mean that the appellant's offending was not serious.
5. The appellant travelled to Perth where he purchased a substantial quantity of methylamphetamine for $4,800 with the intention of transporting it back to Geraldton where he and the co‑purchasers resided. The offence involved planning and organisation. It cannot be overlooked that the appellant intended to supply to each of his co‑purchasers approximately 8.3 g of methylamphetamine. There remained a real risk that the drugs supplied to the co‑purchasers would be further supplied into the community. Even if the methylamphetamine was to be used by the co‑purchasers themselves, the drug's deleterious effect posed a significant risk to the health of the co‑purchasers and potentially a risk to the public, given the negative effect methylamphetamine has on the behaviour of many who consume it.
6. Moreover, it cannot be said that the appellant did not obtain some commercial benefit for what he did. The appellant, as his Honour found, profited in the sense that he got his one‑third portion of the methylamphetamine at a heavily discounted price, even allowing for the expense of travelling to and from Perth.[41]
7. Apart from the plea of guilty, there was little mitigation to be found in the appellant's case. He did not have the advantage of youth or prior good character. Although his prior convictions were not aggravating, the drug trafficking offences referred to in [18], along with the appellant's admitted prior drug dealing referred to in [12], underscored the need for the sentence to properly reflect the objectives of personal deterrence and public protection. While the appellant's efforts towards rehabilitation are commendable, he is, at best, only at the beginning of that process, and it cannot yet be said that he has made significant progress towards ceasing his longstanding illicit drug use.
8. The maximum penalty for the offence committed by the appellant is 25 years' imprisonment and/or a fine of $100,000. The maximum penalty applies even if the appellant possessed the methylamphetamine with an intent only to supply the drug to another. Having regard to the maximum penalty, the standards of sentencing customarily imposed, the serious circumstances of the offence, the appellant's personal circumstances and the mitigating factors, most significantly the plea of guilty, it cannot reasonably be inferred that the sentencing judge erred in imposing a sentence of 3 years 6 months' immediate imprisonment. The sentence that was imposed, having regard to all of the relevant circumstances, was commensurate with the seriousness of the offence. It was not unreasonable or plainly unjust.

1. The orders that we would make are as follows:
   1. Leave to appeal is refused.
   2. The appeal is dismissed.

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

[29] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[30] Staiger v The State of Western Australia [2020] WASCA 99 [14].

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

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

[34] The State of Western Australia v Delaney [2020] WASCA 93.

[35] Italiano v The State of Western Australia [2020] WASCA 115.

[36] Stewart v The State of Western Australia [2014] WASCA 195.

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

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

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