RAMSDEN -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 179 (15 November 2019)

(3) Possession of a prohibited drug (49.98 g of methylamphetamine) with intent to sell or supply it to another, contrary to s 6(1)(a) of the Drugs Act, for which the appellant received an individual sentence of 4 years' imprisonment.

The appellant was made eligible for parole and his sentence was backdated to 28 February 2019 to take account of time spent in custody.

1. The appellant now seeks leave to appeal against his sentences. He is self-represented, and his grounds of appeal and submissions are not separately expressed. In essence, the Appellant's Case raises two issues. First, the appellant contends that the trial judge sentenced him on an incorrect factual basis, namely that he was a 'medium level drug dealer'. Secondly, the appellant in substance asks the court to infer error on the basis that the total effective sentence of 7 years 6 months' imprisonment is unreasonable or plainly unjust.
2. For the following reasons, the Appellant's Case does not advance any reasonably arguable grounds of appeal. Leave to appeal should be refused on all grounds and the appeal should be dismissed.

1. The appellant was convicted after trial. The trial judge made the following findings of fact as to the circumstances of the offending.
2. At about lunchtime on Friday, 18 September 2015, the appellant was stopped by police in relation to a traffic matter. He was alone in his BMW four-wheel drive. He was driving whilst disqualified and was arrested. In the course of his arrest, the BMW was searched. Several clipseal bags containing small amounts of methylamphetamine and ecstasy were found in a sunglasses case located in a driver's door compartment. A search of the appellant at the police station located $5,085 cash in his pants pocket.[1]
3. Police then conducted a search of the Mount Pleasant unit in which the appellant was living at the time.[2]
4. A total of 309.71 g of ecstasy was found hidden in two locations on the unit's balcony: an Otis box located behind some cushions on an outdoor lounge and a plain black pouch secured underneath the top of a footstool. The ecstasy was found in both tablet and powder form. Empty capsules capable of being filled with ecstasy powder were also located. The appellant's DNA profile was located on the inside and outside of the black pouch, on elastic bands found inside the black pouch, and on the outside of the Otis box. If sold in 0.3 g amounts, the ecstasy was worth between $36,054 and $51,950. This ecstasy was the subject of count 1 on the indictment.[3]
5. Although the trial judge did not make any express finding as to the purity of the ecstasy, certificates of analysis tendered at trial indicated that the purity ranged from 11 - 24%.[4]
6. The search of the appellant's unit also located a total of 49.98 g of methylamphetamine (78 - 80% purity) in three clipseal bags inside a grey bag attached to the hot water unit in a locked storage room associated with the appellant's unit. The appellant's DNA profile was located on the inside and outside of the grey bag. If sold in 1 g amounts, the methylamphetamine was worth between $19,600 and $24,500. This methylamphetamine was the subject of count 3 on the indictment.[5]
7. Police also located other indicia of drug dealing, namely digital scales, clipseal bags, a food saver machine, multiple mobile phones, a money counting machine as well as the cash referred to below.[6]
8. The cash that was the subject of count 2 on the indictment was the $5,058 found on the appellant's person and $40,850 found in four locations in the appellant's bedroom.[7]
9. The trial judge accepted the appellant's evidence that he had some large gambling winnings. While noting that there was no evidence as to the amounts that the appellant was spending on gambling, the trial judge inferred that his investment must have been significant. Her Honour also noted that the appellant had not worked since some time after filing his 2013/2014 tax return, and had expenses including his share of $650 per week in rent, and other day to day living expenses. In July and September 2015, the appellant had purchased a $32,000 car in cash, two business class airfares to Mauritius, a business class airfare to Phuket and airfares and accommodation to Broome for himself and his girlfriend.[8]
10. In the passage challenged by the appellant in this appeal, the trial judge concluded:[9]

So whilst I am not able to attribute any particular amount to your winnings and what amount related to your drug dealing activities, given the drugs in your possession, your drug dealing was capable of deriving considerable profits.

It is clear from the amount of drugs found in your possession, the purity, the circumstances of their location, together with the large sum of money that you had, that you were involved in the distribution of drugs at least at the mid-level.

Further, given your lack of employment and notwithstanding your successful gambling, this was clearly a commercial enterprise.

(emphasis added)

1. Later, the trial judge observed:[10]

[Y]our participation was for commercial reasons. You may well have used drugs, but your profits, no doubt, went some considerable way to funding, not only your gambling habit, but also your lifestyle.

1. The trial judge made the following unchallenged findings as to the appellant's personal circumstances.
2. The appellant was 27 years old at the time of offending and 30 years old at the time of sentence. He was one of four children, whose parents separated shortly after the family moved to Darkan when the appellant was 4 years old. The appellant was raised predominantly by his mother, and resented his father's absence. He attended primary school in Darkan and high school in Como, where he completed year 10.[11]
3. After school, the appellant returned to Darkan and worked as a shearer until he injured his knee, and so moved to Perth where he worked as a fly-in/fly-out serviceman. His injured knee eventually required surgery, and it was then that the appellant discovered online gambling. Shortly prior to the offending, the appellant had done some work as a market functions coordinator. Since being charged, the appellant completed a personal training course and did labouring and basic carpentry work with a renovation company. He had also worked for another company doing concreting. The appellant had good references from family members and past and current employers.[12]
4. The appellant's only prior offences were traffic related, for which he had received fines and driving disqualifications.[13] The appellant had not offended in any way in the 3.5 years since he was arrested on 18 September 2015. The trial judge appeared to accept that the appellant had learned from the matter and was unlikely to offend in a similar way again.[14]

Issue 1: factual findings Finding facts for the purposes of sentencing after trial: general principles

1. The general principles governing finding facts for the purposes of sentencing are well established, and were summarised in RMM v The State of Western Australia[15] in the following terms.
2. The respective roles of the trial judge and a jury were explained by the plurality in Cheung v The Queen:[16]

The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender's conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and in so far as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability.

1. Generally speaking,[17] a judge is not required to sentence on a view of the facts most favourable to an offender, but should make his or her own findings as to the aggravating and mitigating circumstances of the offence of which the offender has been convicted.[18]
2. Section 15 of the Sentencing Act 1995 (WA) provides:

To decide on the proper sentence to be imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit.

1. Section 15 empowers a sentencing judge to receive information which is not admissible under the law of evidence. However, the discretionary power under s 15 must be exercised:

(a) in a manner which is consistent with, and does not prejudice or detract from, the integrity of the judicial process; and

(b) in accordance with the rules of procedural fairness.[19]

1. So, for example, s 15 does not authorise a sentencing judge to take into account, in sentencing an offender, information he or she has obtained without reference to the parties and without giving them an opportunity to be heard in relation to it.[20]
2. If the prosecution or an offender seeks to have the sentencing judge take a fact or circumstance into account when passing sentence, it will be for the party relying on the fact or circumstance to bring it to the judge's attention and, if necessary, call evidence about it. The calling of evidence will only be required if the asserted fact or circumstance is disputed or if the judge is not prepared to act on the assertion.[21]
3. Notwithstanding s 15 of the Sentencing Act, where an offender disputes facts or circumstances asserted by the prosecution, the facts or circumstances must be established according to the strict rules of evidence.[22]
4. A sentencing judge may not take disputed facts or circumstances into account in a way that is adverse to the interests of the offender unless those facts or circumstances have been established beyond reasonable doubt. However, a sentencing judge may take into account disputed facts or circumstances which are in the offender's favour if those facts or circumstances are proved on the balance of probabilities.[23]
5. Where the prosecution fails to prove a fact or circumstances which is adverse to an offender, but an alternate fact or circumstances favourable to the offender has not been established on the balance of probabilities, a sentencing judge is not bound to sentence the offender on the basis of the more favourable version. In such a case, the sentencing judge may sentence the offender on the basis that neither of the competing possibilities is known.[24]

1. The appellant's submissions do not challenge any of the trial judge's primary findings of fact as to the items located on the appellant, in his BMW or in his unit. Nor does the appellant contest the primary findings of fact as to his level of expenditure.
2. Rather, the appellant points to the absence of evidence of what he refers to as tools of the drug trade. He notes that police did not locate any 'tick lists', encrypted phones, or messages on his phone, iPad or computer evidencing drug dealing. He submits that the two sets of scales found in his kitchen were used for cooking, and no traces of drugs were found on either set of scales. He says that the cash found in his apartment was readily accounted for by the evidence of his gambling winnings.

1. It was clearly open to the trial judge to find that the appellant was in possession of 309.71 g of ecstasy (worth between $36,054 and $51,950) and 49.98 g of methylamphetamine (worth between $19,600 and $24,500). To arrive at their verdict, the jury must have concluded that the appellant was aware of the presence of these drugs, had control or dominion over them and intended to sell or supply at least some of them to another. The amount and value of the drugs was such as to readily exclude, beyond reasonable doubt, the inference that the appellant intended only a non-commercial supply.
2. The trial judge was not able to make any finding as to what amount of the cash was derived from drugs as opposed to gambling. However, unchallenged evidence as to the appellant's unemployment and expenditure supported an inference, beyond reasonable doubt, that he was engaged in a commercial enterprise. The unchallenged primary facts found by the trial judge - particularly the quantities and value of the drugs - supported an inference, beyond reasonable doubt, that the appellant was 'involved in the distribution of drugs at least at the mid-level'. The absence of other indicia of drug dealing did not require the trial judge to have a reasonable doubt as to the commerciality of the appellant's activity.
3. Further, at the sentencing hearing, the appellant, through his counsel, accepted that he was to be sentenced on the basis that he was a commercial dealer. After the trial judge referred to the absence of evidence from the appellant (who gave evidence at trial) of personal drug use and the expenditure referred to at [12] above, the following exchange occurred between the trial judge and the appellan[25]s counsel:25

PETRUSA DCJ: He's not really working in any other significant capacity, given the evidence. So there has to be a commercial aspect to his dealing, doesn't there? That's the inevitable conclusion.

DOBSON, MR: For the purposes of sentencing, yes, your Honour.

PETRUSA DCJ: Mm.

DOBSON, MR: There could be no other finding, in fact.

That is, the trial judge's finding that the appellant was engaged in the commercial supply of prohibited drugs was not a finding as to a disputed fact.

1. As the High Court observed in Betts v The Queen:[26]

Forensic choices are made in the conduct of the offender's case at the sentence hearing, which include the material that is to be relied upon in mitigation of penalty and whether any of the facts are to be contested.

The interests of justice will generally not be served by permitting either party to make a new or different case on the hearing of the appeal.[27]

1. In our view, the appellant's challenge to the facts found by the trial judge has no reasonable prospect of succeeding.

Issue 2: inferred error Inferred error: general principles

1. The relevant principles relating to grounds alleging inferred error in the exercise of a trial judge's sentencing discretion are well established, and were summarised in Kabambi v The State of Western Australia:[28]

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

(2) In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears 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 or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(4) The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(6) Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.

1. The maximum penalty for each of the appellant's drug offences was 25 years' imprisonment or a $100,000 fine or both, at the time those offences were committed. The maximum penalty for possession of property reasonably suspected of being unlawfully obtained is 7 years' imprisonment.
2. The customary sentencing principles in relation to sentencing for commercial drug offences were summarised by this court in Carlucci v The State of Western Australia:[29]

The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. 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. The degree of purity is often regarded as significant. Matters personal to an offender will invariably be subsidiary considerations, but they are not irrelevant.

1. In Carlucci, the court referred to a number of cases involving sentences of 5 - 7 years' imprisonment imposed on persons engaged in a commercial drug business which involved dealing in ounces rather than kilograms of methylamphetamine.[30] Most of those cases involved pleas of guilty.
2. Ecstasy is to be treated as seriously, for the purposes of sentencing, as methylamphetamine, heroin and cocaine.[31]
3. A number of cases involving offending against s 417(1) of the Code were recently referred to in Law v The Queen.[32] In Law, this court resentenced the offender, who pleaded guilty, to 3 years' immediate imprisonment for possessing $154,950 in money reasonably suspected to have been unlawfully obtained. That individual sentence formed part of a total effective sentence of 10 years 6 months' imprisonment imposed in respect of the offence against s 417(1) and State and Commonwealth drug offences.
4. The appellant's written submissions refer to the decision of this court in Clarke v The State of Western Australia.[33] That decision does not assist the appellant. In that case, the overall seriousness of the offending was significantly greater than in the present appeal. However, the offender in Clarke received a much higher total effective sentence than the appellant. This court upheld a total effective sentence of 10 years' imprisonment, imposed after a late plea of guilty.
5. In the present case, the appellant was engaged in the commercial dealing of significant quantities of both methylamphetamine and ecstasy. Importantly for the purposes of comparing this case with others, he did not have the mitigating benefit of a plea of guilty. While there were a number of mitigating factors personal to the appellant, those factors carry less weight in light of the significance of general deterrence as a relevant sentencing consideration.
6. Some accumulation of the individual sentences was necessary in order properly to mark the seriousness of the appellant's overall offending.
7. Having regard to all of the circumstances of the case (including those personal to the appellant) and all relevant sentencing principles, it is not reasonably arguable that either the individual sentences or the total effective sentence imposed on the appellant were unreasonable or plainly unjust. Inferred error is not able to be established.

1. On 4 November 2019, the appellant filed an application to adduce additional evidence in the appeal. The only possibly relevant material sought to be adduced is a Department of Justice 'Individual Management Plan' that the appellant received in Acacia Prison. That management plan, which is advanced as indicating the appellant's progress towards rehabilitation and lower risk of reoffending, could only be relevant if error in the exercise of the trial judge's discretion or some other miscarriage of justice was established and it was necessary for this court to resentence the appellant. As error or miscarriage has not been arguably established, there is no occasion for this court to refer to the management plan. The application to adduce additional evidence in the appeal should therefore be dismissed.

1. For the above reasons, none of the appellant's grounds of appeal have any reasonable prospect of succeeding. We would make the following orders:

(2) The appellant's application filed on 4 November 2019 is dismissed.

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

[4] Exhibits 15.1 - 15.4; trial ts 616 - 618.

[15] RMM v The State of Western Australia [2018] WASCA 183 [197] - [204].

[16] Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [5].

[17] Cf Chiro v The Queen [2017] HCA 37; (2017) 260 CLR 425.

[18] Chiro [52], [70], [83] - [85]; Cheung [14] - [17], [98] - [99], [162] - [163]; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [24].

[19] Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188 [64] - [65]; Tanner v The State of Western Australia [2013] WASCA 142 [134] - [135].

[21] Olbrich [25]; Law v The State of Western Australia [2009] WASCA 193 [29] - [31].

[22] Rimington v The State of Western Australia [2015] WASCA 102 [59]; The State of Western Australia v JWRL [2010] WASCA 179 [10]; Pelemis v The State of Western Australia [2009] WASCA 151 [13]; HAS v The State of Western Australia [2005] WASCA 29 [49] - [55].

[23] Olbrich [27]; Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [64].

[26] Betts v The Queen [2016] HCA 25; (2016) 258 CLR 420 [14].

[27] DL v The Queen [2018] HCA 32; (2018) 92 ALJR 764 [38], citing Betts [16].

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

[29] Carlucci v The State of Western Australia [2019] WASCA 37 [37].

[31] The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 [111]. See also, for a recent review of sentences for commercial drug offences involving ecstasy and methylamphetamine, Tirkot v The State of Western Australia [2018] WASCA 41 [63], [71] - [79].

[32] Law v The Queen [2019] WASCA 81 [157] and cases there cited.

[33] Clarke v The State of Western Australia [2018] WASCA 190.