Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

File No : IND 1079 of 2007, IND 1279 of 2007

Criminal law - Sentencing - Possession of methylamphetamine with intent to sell or supply - First count involving 87.74 g, second count involving 11.07 g - Sentences of 4 years 6 months and 1 year 6 months respectively - Sentences to be served cumulatively - Aggregate sentence 6 years - Whether totality principle infringed - Whether proper discount in relation to second count

Sentencing Act 1995 (WA), s 32

1 STEYTLER P: I agree with Miller JA. His reasons express my own for joining in the decision of the court to dismiss the application for leave to appeal.

3 MILLER JA: This is an application for leave to appeal against sentence. At the hearing of the appeal on 16 April 2008 the court unanimously dismissed the application and undertook to provide reasons at a later date. These are my reasons for joining in the decision to dismiss the application for leave.

4 The appellant was charged on two separate indictments with two counts of possession of a prohibited drug (methylamphetamine) with intent to sell or supply it to another. The first indictment alleged an offence on 7 July 2006 and the second an offence on 9 May 2007. There were also charges of possession of ammunition and possession of cannabis with intent to sell or supply in relation to which the appellant asked to be dealt with pursuant to the provisions of s 32 of the Sentencing Act 1995 (WA).

5 The appellant pleaded guilty to the two indictments and to the s 32 matters in the District Court at Perth on 9 October 2007. He was sentenced to 4 years 6 months' imprisonment in relation to the first indictment and 1 year 6 months in relation to the second. These sentences were ordered to be served cumulatively, giving an aggregate term of 6 years' imprisonment. On each of the s 32 matters, sentences of 3 months' imprisonment to be served concurrently and concurrently with the sentences imposed on the indictable matters were imposed.

6 On 27 December 2007 Wheeler JA ordered that the appellant's application for leave to appeal should be heard together with the appeal. There are two proposed grounds of appeal, they being:

1. The learned Judge erred in imposing a total effective sentence which infringed the principle of totality, 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 personally.

1. The sentencing Judge erred when he afforded the Appellant no discount for either the transitional provisions or the plea of guilty on the Second Indictment.

7 The relevant facts were related to the court by the prosecutor on 9 October 2007. The first offence occurred at about 7.25 am on 7 July 2006. The appellant was a passenger in a vehicle being driven in a southerly direction on Brookton Highway, Illawarra. The vehicle was stopped by police. A search of the vehicle located a set of electronic scales and $5,000 in cash. The appellant was arrested and taken to Armadale Police Station. He was searched and when he removed his socks a small metal tin fell to the ground. It contained three small clip-seal bags which were analysed to contain a total of 5.04 g of methylamphetamine with a purity of between 30% - 48%. The appellant then removed his underwear and in consequence a package wrapped in black tape was found. It contained a clip-seal bag containing 82.7 g of methylamphetamine with a purity of approximately 51%.

8 The facts relating to the second indictment occurred on 9 May 2007. Police attended at the appellant's premises in Lange Way, Esperance and executed a search warrant. When the appellant was searched he produced a small container from his left tracksuit pocket. It contained a small clip-seal bag within which was another bag containing 4.58 g of methylamphetamine with a purity of 30%. A further bag containing methylamphetamine was found in seven separate clip-seal bags in the rear shed of the premises. They were concealed in a film canister hidden in a box. Each bag contained approximately 1 g. The total weight of the seven clip-seal bags was 6.49 g with a purity between 25% - 34%. The total weight of the methylamphetamine seized was 11.07 g and its purity varied between 25% - 34%. A large amount of cash was also found. It totalled $8,070. There were also scales; numerous clip-seal bags; and a paper with numbers on it.

9 The matters the subject of the s 32 notice included an offence of possession of cannabis with intent to sell or supply. This offence was committed on 7 July 2006 when police went to the appellant's premises. At those premises they found a total of 318.5 g of cannabis bud material, and 6.5 g of cannabis seed material. It was located in different places and in different quantities.

10 The sentencing judge made reference to the fact underlying each of the indictments. She observed that 82.7 g of 51% pure methylamphetamine was 'very high', commenting that 'street level is about 10%'. In total the 87.74 g ranged between 30% - 51%.

11 After stating the facts in relation to the second indictment the sentencing judge described the appellant as being 'in very serious difficulty and very serious trouble'.

12 Matters personal to the appellant were noted. A pre-sentence report revealed that he came from a good family and was a hard working person. Since his imprisonment pending sentence he had performed well in different programs. The sentencing judge described him as 'a level-headed individual' who significantly minimised the impact his substance abuse had on his life and, in particular, the contribution it was making to his offending behaviour.

13 The sentencing judge observed that methylamphetamine is 'the major curse in our community' and a major cause of violent crime. After commenting that the appellant had 'been in trouble before' (his record revealed 32 convictions between 1983 and 2005) the sentencing judge considered that the seriousness of the offence the subject of the first indictment called for a substantial term of imprisonment and imposed a sentence of 4 1/2 years. She then said in relation to the second indictment:

[B]ecause there is 11 grams here and you were on bail, the starting point is 18 months. After allowing for the transitional provisions and the fast-track plea, you are sentenced to 18 months, and that is cumulative. The total term is six years.

14 The first ground upon which leave is sought contends that the total effective sentence infringed the totality principle.

15 At the hearing of the appeal it was submitted that an aggregate sentence of 6 years' imprisonment was well in excess of the range of sentences that could have been expected in this case. Reference was made to two early cases (Nelis v The Queen [2000] WASCA 194 and R v Votano [2000] WASCA 144) where sentences of 7 years' imprisonment (pre-transitional) were imposed in cases involving 109.79 g of amphetamine and 383.9 g of amphetamine respectively. These sentences translate to 4 years 8 months' in post-transitional terms. Votano was a State appeal against sentence. A 3-year sentence was increased to 7 years. State appeals against sentence raise special considerations and in no sense can the decision in Votano be relied upon by the appellant in this case.

16 Reference was also made to Bosworth v The State of Western Australia [2007] WASCA 144. The case involved 84.17 g of methylamphetamine of 24.08% purity. Steytler P and McLure JA considered that a sentence of 5 years 10 months' imprisonment was at the high end but not outside a sound discretionary range.

17 In Bosworth I reviewed cases of possession with intent to sell or supply of both large and smaller quantities of methylamphetamine. I pointed out ([40] - [41]) that for possession with intent to sell or supply large quantities sentences of up to 10 years' imprisonment (post-transitional) could be expected. In cases involving smaller quantities (3 g - 65 g), sentences between 2 and 5 years could be expected.

18 It seems to me that the sentence of 4 years 6 months imposed by the sentencing judge in relation to the first indictment (where the amount of methylamphetamine totalled 87.74 g) was well within the range of sentences that could have been expected. The accumulation of a further 18 months for the matters the subject of the second indictment led, in my opinion, to a sentence which appropriately reflected the total criminality of the appellant's conduct: Jarvis v The Queen (1993) 20 WAR 201, 206 - 207 (Ipp J). In my opinion, there is no substance in the first ground of appeal and I would refuse leave.

19 This ground contents that the sentencing judge erred in affording the appellant no discount for either the transitional provisions or the plea of guilty on the second indictment.

20 The passage that I have quoted from the sentencing judge's reasons indicates that her Honour made an error in the third line when referring to a 'starting point' of 18 months. That is apparent because her Honour then applied discounts for the plea of guilty and the transitional provisions and yet ended up at the same figure of 18 months.

21 It is apparent that the sentencing judge meant to say in the third line that the starting point was 3 years' imprisonment. A deduction of 25% for the plea of guilty would result in a sentence of 27 months and further reduction of one-third to account for the transitional provisions would lead a resultant sentence 18 months.

22 The starting point could not have been 18 months. Were it so, the deduction for the plea of guilty and the transitional provisions would have led to a resultant sentence of only 9 months' imprisonment. This does not accord with the analysis of the cases I made in Bosworth [41]. The sentence of 18 months imposed by the sentencing judge is a little below the range of 2 to 5 years' imprisonment.

23 In my opinion there is no substance in the second ground of appeal and I would refuse leave.