Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against sentence - Application to admit other evidence - Possession of an unlicensed firearm - Possession of methylamphetamine with intent to sell or supply - Whether trial judge made an error in a finding of fact - Whether trial judge erred in imposing a total effective sentence that infringed the first limb of the totality principle - Whether sentence imposed was manifestly excessive

Criminal Appeals Act 2004 (WA), s 27(2), s 27(3), s 39(1), s 40(1)(e)

Firearms Act 1973 (WA), s 19(1), s 19(1)(ac)

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

Farquhar v The State of Western Australia [2005] WASCA 49

Hiron v The Queen [2003] WASCA 310

Huynh v The State of Western Australia [2012] WASCA 8

Riley v Smirk [2011] WASCA 200

Rinaldi v The State of Western Australia [2007] WASCA 53

Roffey v The State of Western Australia [2007] WASCA 246

Sakkers v Thornton [2009] WASC 175

Staker v The State of Western Australia [2012] WASCA 63

Stone v The State of Western Australia [2010] WASCA 80

Wilson v The State of Western Australia [2010] WASCA 82

2 MAZZA JA: This is an application for leave to appeal against sentence. Accompanying it is an application to admit evidence which was not before the sentencing judge pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA).

3 The appellant was charged on indictment with two offences alleged to have been committed at the appellant's home on 28 August 2010. Count 1 charged the appellant with being in possession of an unlicensed firearm, the identification number of which had been removed and its design altered, contrary to s 19(1) and (1ac) of the Firearms Act 1973 (WA). This offence carries a maximum penalty of 7 years' imprisonment. Count 2 charged the appellant with having in his possession, with intent to sell or supply it to another, 104.23 g of methylamphetamine with a purity varying between 23% and 24%, contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA). This offence carries a maximum penalty of a fine of $100,000 and/or imprisonment for 25 years.

4 The appellant entered pleas of not guilty to these charges. A trial was listed to commence in the District Court on 1 August 2011. On 27 July 2011, the appellant indicated that he would plead guilty to the offences, but said he disputed some of the facts alleged by the prosecution.

5 On 2 August 2011, the appellant entered his pleas of guilty: ts 63. Staude DCJ ordered that pre-sentence and psychological reports be prepared, and the matter was adjourned to 20 September 2011: ts 68. This hearing was later vacated. The matter was called on before Martino CJDC on 4 November 2011 and then again on 10 November 2011. On this day, both the prosecutor and defence counsel agreed that a trial of the issues was not required: ts 6. The matter was then adjourned to 22 December 2011.

6 On 22 December 2011, after hearing sentencing submissions, Staude DCJ sentenced the appellant to 12 months' imprisonment on count 1 and 5 years' imprisonment on count 2. His Honour ordered that the sentences be served cumulatively. Thus, the total effective sentence imposed upon the appellant was 6 years' imprisonment. His Honour made a parole eligibility order.

7 On the morning of 28 August 2010, police attended at the home where the appellant and his de facto partner resided, following a call from the de facto partner.

8 On entering the premises, police officers found, on the main kitchen bench, a plastic container in which were 181 rounds of live ammunition and an unlicensed 9 mm Glock handgun. The identifying details of the firearm had been ground off and the trigger mechanism had been modified so that it fired fully automatically. The ammunition was capable of being fired from the handgun.

9 Some hours later, the police searched the appellant's home pursuant to a search warrant issued under the Misuse of Drugs Act.

10 In the appellant's garage the police found a wall unit. One of the shelves of the unit was capable of being removed and, when it was removed, revealed a cavity. One of the items found inside the cavity was a sealed plastic package which contained the methylamphetamine that is the subject of count 2. In the same location the police found a package of white powder which contained, in total, 72.84 g of dimethyl sulfone, a cutting agent used for the purpose of diluting the purity of methylamphetamine, a process called 'bulking up' or 'cutting' the drug. Two 'tick lists' indicating substantial monetary amounts, as well as some more ammunition were also discovered.

11 Other items found in the garage included a metal telescopic baton, a mobile phone jammer, a firearm cleaning kit, at least one bulletproof vest, a vacuum-style heat sealing machine, two boxes of plastic clipseal bags and a money counting machine.

12 Inside the house, the police found a cavity above the door leading into the study. This cavity contained a further quantity of ammunition and other items, including a USB thumb drive which was later found to have on it photographs of a sum of money estimated to be in the vicinity of $480,000. Later, the police found a baked beans tin with a false bottom. When the false bottom was removed, the tin was found to contain 246 g of dimethyl sulfone.

13 The garage in which the methylamphetamine was discovered was protected by a closed-circuit television surveillance system.

14 After the appellant's arrest, he was remanded in Hakea prison. While in custody, the appellant was recorded having telephone conversations in which he organised for the collection of substantial amounts of money owing to him: ts 112.

The appellant's explanation as to the circumstances of his offending

15 From the bar table, the appellant asserted that notwithstanding all that was found by the police at his premises, the appellant was not engaged in any ongoing drug dealing: ts 90. Defence counsel put forward various innocent explanations for the items found in addition to the drugs.

16 Defence counsel told his Honour that the appellant had been addicted, for some years, to methylamphetamine. As a result of his involvement in drugs, he met a man named Luke Marenic. Marenic owed his drug dealers $10,000. The appellant lent Marenic this sum, on the basis that it would be repaid in '12 months or so': ts 88. However, Marenic was unable to repay the appellant.

17 Defence counsel explained that, in order for the appellant to recoup this debt, the appellant provided Marenic with another $12,000 to purchase an ounce of methylamphetamine. Marenic bought this amount of the drug and cut it in the appellant's garage to arrive at the quantity the police found there. The appellant's plan was to sell the whole quantity of methylamphetamine found by the police to a person who would, presumably, on sell it. The appellant's professed intention was to recover the money owed to him by Marenic and the $12,000 he outlaid to purchase the drugs: ts 104.

18 The State prosecutor did not challenge the version of events proffered by defence counsel and did not seek a trial of the issues. In particular, the State informed his Honour that it did not allege that the appellant was engaged in an ongoing business selling methylamphetamine: ts 104. All of this is surprising, having regard to what was found at the appellant's house. However, as the court's procedure for applications of this kind does not require the respondent to be present at the hearing, little more can be said, save that the handling of this aspect of the case by the office of the DPP ought be reviewed, having regard to what was said in Staker v The State of Western Australia [2012] WASCA 63 [36].

His Honour's findings as to the nature of the appellant's offending

19 In light of the position adopted by the State, the appellant was not sentenced on the basis that he was involved in the selling of methylamphetamine on an ongoing basis. Of course, this does not mean that the appellant's offending was not serious. His Honour characterised the appellant's drug offending as 'one of very serious commercial dealing involving ... a large quantity of drugs for a large amount of money': ts 113.

... looking at the bare facts and those facts which are admitted by you, there are really no mitigating features in the circumstances of the offending. The total amount of the drugs of which you were in possession at the time was just over 100 g, it was at a level of purity which would have enabled that quantity to be bulked up for street sale and whilst it may not be shown that you were aware of the purity of the methylamphetamine it is conceded that you were selling it in a substantial amount to a person +who would onsell and so it may have been expected that that quantity would be at least bulked up by the person to whom you intended to sell it.

The facts indicate to me that you were engaged in mid to low level commercial distribution, but I don't need to go further in terms of drawing any inferences from the items of significance which the prosecution have evidenced.

It's clear that you were selling drugs purely to recoup money that you were owed, so it was a transaction that was intended to make a substantial profit, so there's really no mitigation to be found in those circumstances at all: ts 113 - 114.

His Honour's findings as to the firearm offence

21 His Honour rejected the submission of defence counsel that the appellant possessed a handgun for sporting purposes. Instead, his Honour found the appellant's possession of the firearm to be 'sinister': ts 117.

22 At the time he was sentenced, the appellant was 42 years of age. He had a lengthy record of offending as an adult, but only in courts of summary jurisdiction. His record comprised mostly of offences involving illicit drug use, possession of prohibited weapons, traffic offences and offences against public order. Although the offences for which he was sentenced by Staude DCJ were the first indictable offences he had committed, the record shows a persistent disregard of the law.

23 The appellant has a long history of cannabis use and a more recent history of methylamphetamine use.

24 The author of the court-ordered psychological report, Ms Claire Lynn, was unable to properly assess the appellant's psychological functioning because of his lack of self-awareness and unreliable psychometric test response. However, she noted that his interpersonal style and the test responses he gave 'were indicative of a lack of psychological mindedness and [an] inability to feel moved by or appreciate the implications of his decisions': Ms Lynn's report, p 2. She observed that 'a lack of psychological mindedness typically limits the capacity to meaningfully engage in therapeutic interventions': Ms Lynn's report, p 2.

The learned sentencing Judge erred when he found the Appellant would further cut the methylamphetamine in his possession and increase its quantity ('the finding');

1.1 The finding was based on relevant 'street level' purity being 10 per cent at or around the time of the offending;

1.2 There was no evidence before the Court to support the finding.

The learned trial Judge erred in imposing a total effective sentence that infringed the first limb of the totality principle, having regard to the overall criminality involved in the various offences viewed in their entirety and all the circumstances of the case including those referable to the Appellant.

The term imposed for count two, the firearm offence was, in all the circumstances, manifestly excessive:

3.1 The plea of guilty;

3.2 The Appellant's antecedents;

3.3 The criminality involved;

3.4 Sentences imposed in broadly comparable cases.

26 Ground 1 alleges an express error by the learned sentencing judge. Grounds 2 and 3 allege implied errors.

27 This court must not give leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding. Unless at least one of the proposed grounds attracts a grant of leave, the appeal is taken to have been dismissed: s 27(2) and (3) of the Criminal Appeals Act.

28 The general principles applicable to appellate review of sentences are well known. They are set out in the reasons of McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2] and do not require repetition.

29 Section 39(1) of the Criminal Appeals Act requires this court to decide an appeal on the evidence and material that was before the lower court. This requirement is subject to the power in s 40(1)(e) of the Act to allow the admission of evidence which was not before the lower court. While the discretion in s 40(1)(e) is expressed widely, it is most improbable that the provision was intended to be construed in such a way as to have the practical effect of obliterating the distinction between original and appellate jurisdiction: Rinaldi v The State of Western Australia [2007] WASCA 53 [84].

30 The evidence sought to be adduced on behalf of the appellant was contained in an affidavit sworn by his solicitor. The affidavit referred to a newspaper article from The West Australian published on 16 March 2012, about material provided by the ChemCentre of Western Australia to the WA Police in response to a question posed by the Hon L Ravlich in the course of an Estimates and Financial Operations Committee meeting. That material (which was included in the affidavit) showed that the median purity of methylamphetamine analysed by the ChemCentre in the 2010/11 financial year was 34%, compared with 17% in the 2009/2010 financial year. The figures provided by the ChemCentre did not refer to street level purity. They refer only to drug seizures provided to it by the WA Police weighing greater than 2 g.

Merits of the proposed grounds of appeal Ground 1

31 The appellant submitted that his Honour erred in finding that the methylamphetamine possessed by the appellant was of a purity which was capable of being 'bulked up'. It is submitted that his Honour made this finding in the absence of any evidence to support it. The appellant also submits that, in light of the proposed evidence, the drug found in the appellant's possession was below street level purity and could not have been bulked up.

32 Further, the appellant submits that the learned sentencing judge erred by finding that the appellant himself intended to further bulk up the methylamphetamine in his possession and thereby increase its quantity.

33 His Honour did not make the errors alleged by the appellant.

34 On 2 August 2011, when the appellant entered his pleas of guilty, the prosecutor tendered a number of items to the learned sentencing judge, including the prosecution brief. Among the materials in the prosecution brief was a deposition by Detective Senior Constable Andrew James Broadley. Detective Broadley has extensive experience in the investigation of drug offences and the drug trade generally. He deposed that the 'average street level purity of methylamphetamine in Western Australia is generally about 10 to 15%': Brief for Prosecution p 75. No objection was taken to Detective Broadley's statement and thus his Honour was entitled to take it into account. The contents of Detective Broadley's deposition was sufficient to enable his Honour to conclude that the methylamphetamine found in the appellant's possession was capable of being bulked up.

35 Further, the proposed additional evidence does not assist the appellant. As I have already observed, the material sought to be adduced does not refer to the street level purity. Very commonly, street level use of methylamphetamine concern quantities less than 2 g. The ChemCentre material relates to analyses of methylamphetamine above 2 g. I note that 2 g is the presumptive amount under the Misuse of Drugs Act for an intention to sell or supply the drug.

36 The learned sentencing judge did not find that the appellant himself would cut the methylamphetamine which he possessed. His Honour said that the drug was intended to be sold to another who might have been expected to bulk it up. Clearly, there was potential for the person to whom the drug was to be sold to bulk it up further. He did not say that it was the appellant who would do the bulking up.

37 For these reasons, ground 1 has no reasonable prospect of succeeding. The proposed additional evidence is irrelevant. Accordingly, the application to admit it must be refused.

38 Mr Watters, on behalf of the appellant, argued grounds 2 and 3 together. Ground 2 alleges that the sentence for the firearms offence was manifestly excessive, but the real issue, as argued by the appellant's counsel, is whether the total effective sentence of 6 years' imprisonment offended the first limb of the totality principle in that the sentence for the Firearms Act offence, should have been made concurrent with the sentence imposed for the drug offence: appeal ts 4.

39 The totality principle has been discussed in many cases in this court. It was accurately and succinctly described by McLure P in Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26] as follows:

The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.

The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).

The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).

40 The appellant's overall offending was very serious, even if it was not taken to have been committed in the context of an ongoing business of drug dealing. The appellant possessed a large quantity of methylamphetamine of a purity which was, as his Honour found, capable of being bulked up. The appellant's motive for possessing the drug was a commercial one. It does not matter that the money which the appellant hoped to make from the transaction was to recoup a debt and the cost of purchasing the drug. Apart from the very late plea of guilty, there was, as his Honour found, no other material mitigating circumstances. The lack of awareness and limited capacity to meaningfully engage in therapeutic interventions does not bode well for his rehabilitation.

41 The firearms offence was a serious example of its type. The learned sentencing judge found that the appellant possessed the weapon for sinister reasons. The appellant had modified it to make it more dangerous by enabling it to fire fully automatically. The identifying serial number had been ground off so that the provenance of the weapon could not be easily traced. The appellant has a number of prior convictions for possession of unlicensed weapons and ammunition, making personal deterrence a particularly relevant factor in this case. Additional punishment with respect to the offence was justified.

42 Having regard to all of the circumstances of the appellant's offending, including those referrable to the offender personally, the total effective sentence of 6 years' imprisonment reflected a proper relationship to the overall criminality involved in the offences viewed in their entirety. The appellant has no reasonable prospect of establishing that the total effective sentence offended the first limb of the totality principle.

43 For the sake of completeness, I will deal with the appellant's contention that 12 months' imprisonment for the firearms offence was manifestly excessive.

44 I have already referred to the maximum penalty and the serious nature of the circumstances in which it was committed and the appellant's personal circumstances. In Huynh v The State of Western Australia [2012] WASCA 8, McLure P, with whom Pullin JA agreed, observed at [17] that this court has not been called upon to consider or ruled upon the range of sentences customarily imposed for breaches of the Firearms Act. However, her Honour noted six cases which have come before this court where sentences, which ranged between 6 to 12 months' imprisonment, were upheld: Hiron v The Queen [2003] WASCA 310; Farquhar v The State of Western Australia [2005] WASCA 49; Roffey v The State of Western Australia; Sakkers v Thornton [2009] WASC 175; Stone v The State of Western Australia [2010] WASCA 80 and Riley v Smirk [2011] WASCA 200. In Huynh, a sentence of 2 years' imprisonment for possession of a loaded handgun was upheld.

45 General deterrence is a major consideration in relation to firearms offences. Personal deterrence, as I have already explained, was also required. The imposition of 12 months' imprisonment was well within the range of a sound exercise of his Honour's sentencing discretion. The sentence was not manifestly excessive.

46 Grounds 2 and 3 do not have any reasonable prospect of succeeding.

47 As none of the proposed grounds of appeal have a reasonable prospect of succeeding, the appeal must be dismissed. So too, must the application to admit other evidence. I would make the following orders:

(1) the application to adduce other evidence is dismissed;