Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - State appeal - Whether sentence manifestly inadequate - Possession of methylamphetamine with intent to sell and supply - Evidence of drug dealing business - Appeal allowed - Sentence increased

Criminal Appeals Act 2004 (WA), s 31(4)

Misuse of Drugs Act 1981 (WA), s 5, s 6(1)(a), s 34(1)(a)

Sentencing Act 1995 (WA), s 32

Sentence imposed by Deane DCJ set aside and substituted with sentence of 5 years 6 months' immediate imprisonment effective from 9 June 2013

All other sentences and order for concurrency stand

Borbil v The State of Western Australia [2007] WASCA 24

Bosworth v The State of Western Australia [2007] WASCA 144

Cant v The State of Western Australia [2009] WASCA 188

Chu v The State of Western Australia [2012] WASCA 135

Colangelo v The State of Western Australia [2004] WASCA 294

Dao v The State of Western Australia [2007] WASCA 237

Dixon v The State of Western Australia [2006] WASCA 255

Haasy v The State of Western Australia [2010] WASCA 207

House v The King [1936] HCA 40; (1936) 55 CLR 499

Lynch v The State of Western Australia [2011] WASCA 243

Moreton v The State of Western Australia [2011] WASCA 258

Nelis v The State of Western Australia [2000] WASCA 194

The State of Western Australia v Atherton [2009] WASCA 148

The State of Western Australia v Fleming [2010] WASCA 162

The State of Western Australia v Littlefair [2013] WASCA 177

TLM v The State of Western Australia [2009] WASCA 106

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

1 MARTIN CJ: This State appeal against sentence should be allowed for the reasons given by Mazza JA, with which I agree. The sentence imposed upon the respondent for the offence of possessing methylamphetamine with intent to sell or supply to another (count 1 on the indictment) should be set aside and instead the respondent sentenced to 5 years and 6 months imprisonment, to take effect from 9 June 2013, with eligibility for parole. All other sentences imposed upon the respondent, including the order for concurrency, should remain.

3 MAZZA JA: This is a State appeal against sentence.

4 On 13 June 2013, the respondent was convicted after trial in the District Court of two counts of possession of methylamphetamine with intent to sell or supply to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).

5 On 7 August 2013, the respondent appeared for sentence in respect of these offences and three relatively minor drug offences which were before the court pursuant to a notice under s 32 of the Sentencing Act 1995 (WA). She was sentenced as follows:

Possession of methylamphetamine with intent to sell or supply to another

Possession of prohibited drug with intent to sell or supply to another

Count 1 on s 32 notice

Count 2 on s 32 notice

Count 3 on s 32 notice

6 The learned sentencing judge ordered that all of the sentences of imprisonment be served concurrently with the sentence imposed on count 1 on the indictment. Accordingly, the total effective sentence imposed upon the respondent was 3 years 8 months' imprisonment. The respondent was made eligible for parole and her Honour ordered that the terms of imprisonment commence from 9 June 2013.

7 There is one ground of appeal. Leave to appeal has been granted in relation to it. The appellant alleges that the sentence imposed on count 1 of the indictment was manifestly inadequate.

8 On 14 September 2011, police executed a search warrant at a house in Ellenbrook occupied at that time solely by the respondent. The respondent's long term partner, Mr Colin Riley, who usually lived at the premises with the respondent, was not present, having been incarcerated on or about 10 August 2011.

9 In the walk-in wardrobe of the master bedroom, the police discovered, inside a plastic tub, the methylamphetamine the subject of count 1 on the indictment. The drug was split up into four plastic bags weighing a total of 110.9 g. Bag 1 contained 27.7 g of methylamphetamine at 42% purity; bag 2 contained 27.8 g of methylamphetamine at 50% purity; bag 3 contained 27.7 g of methylamphetamine at 50% purity; and bag 4 contained 27.7 g of methylamphetamine at 53% purity. The value of each bag of methylamphetamine was approximately $14,000.

10 The police also found a safe in the walk-in wardrobe. The respondent provided the combination to unlock the safe. Inside it, police discovered $38,500 in cash and a total of 5.22 g of methylamphetamine in two plastic bags: one containing 2.13 g of methylamphetamine at 82% purity and another containing 3.09 g of methylamphetamine at 27% purity. The methylamphetamine inside the safe was the subject of count 2 on the indictment.

11 In addition to the cash, the police discovered a number of items which are commonly associated with drug dealing, namely:

(a) A quantity of MSM powder, a substance often used to cut or dilute methylamphetamine.

(b) Two notebooks which contained notations that clearly suggest sales of drugs over a period of months before the search. One of the notebooks belonged to the respondent. In it were noted names, dates and large sums of money (including some figures in excess of $100,000).

(c) A system of CCTV cameras was installed around the house linked to a television in the master bedroom. The CCTV system had been installed after Mr Riley's incarceration (appeal ts 5).

12 Other relevant items were also found in the house, including two sets of scales and numerous plastic clipseal bags. A note written by the respondent was discovered in the walk-in wardrobe, very close to the plastic tub containing the drugs the subject of count 1, which contained a reference to 'five ounces'.

13 The State's case, which the learned sentencing judge appeared to accept for the purpose of sentencing, was that Mr Riley was 'the main player' in a commercial drug business that also involved the appellant. After his incarceration, the respondent continued to conduct that business (ts 308 - 309).

14 At the time she was sentenced, the respondent was 42 years of age. She had what her Honour described as an 'unusual' upbringing. At the age of three, her mother placed her in the care of friends. When she was eight she returned to live with her mother, but that was short-lived. Eventually, she was cared for by other family friends. Later, she again moved in with her mother and stepfather, the latter being physically violent towards her. The respondent left home at the age of 15. Her formal education is limited. She married and has a child from that relationship who has now grown up.

15 Since her mid-20s the respondent has been a habitual user of illicit substances, including heroin and amphetamine. She also has a long term alcohol problem. The respondent and Mr Riley have been in a relationship for approximately 11 years. While he is a controlling and dominant individual who also uses illicit substances, the respondent regards her relationship with him as good and views him as her main support in life. She intends to resume her relationship with him when she is released from custody.

16 A psychological report prepared for the respondent's sentencing described the respondent as being at a 'pre-contemplative' stage, in terms of her motivation to change. The author of the report noted that '[the respondent] appears not to have any appreciation for risk factors or the potential for problems upon her release (and eventual return to her partner)'.

17 Although the respondent expressed the desire to 'turn over a new leaf', the reports before her Honour expressed caution as to the respondent's capacity to address the problematic issues in her life, principally her illicit drug use.

18 The respondent has a prior criminal history of mostly dishonesty and drug offences commencing in 1998. Significantly, on 27 November 2009, she was sentenced in the District Court to a 12-month intensive supervision order for wilfully destroying evidence. The circumstances of that offence were that she attempted to dispose of a bag containing a quantity of cocaine in order to avoid detection by the police. The bag was retrieved and found to contain 22 g of the drug with a purity of 25%.

19 References were handed to the sentencing judge which spoke positively about the respondent. She has artistic talent, particularly in photography and graphic art, and has used that talent to assist others. She had, prior to being sentenced, undertaken several sessions of psychological treatment designed to deal with issues of depression, anxiety and to explore the factors contributing to her contact with the justice system.

20 As the ground of appeal alleges implied error, I will not summarise in great detail her Honour's sentencing remarks. It is sufficient to note that her Honour:

(a) acknowledged the need to impose a sentence that emphasised deterrence and punishment. Accordingly, she said personal factors favourable to the respondent carried less weight;

(b) found that the respondent's offending 'had a very distinct commercial element to it or a potentially distinct commercial element';

(c) said the use of CCTV cameras and the keeping of records revealed that 'a degree of planning and forethought went into the enterprise';

(d) found the money in the safe was money derived from drug dealing; and

(e) said, having regard to the respondent's criminal history, that some emphasis had to be given to personal deterrence.

21 Her Honour accepted that Mr Riley had a dominant personality. She said that while that provided, in part, some explanation for the respondent's drug use and ongoing connections with the drug culture, it could not be used as an excuse to justify the respondent's offending.

The general principles applicable to this appeal

22 The general principles applicable to this appeal are well established. This court cannot intervene merely because it would have exercised the sentencing discretion in a manner different to the sentencing judge. This court is only entitled to intervene if it established that the sentencer erred in some material way. The appellant alleges implied error on the part of the learned sentencing judge. What must be demonstrated is that the sentence was unreasonable or plainly unjust: House v The King [1936] HCA 40; (1936) 55 CLR 499, 555. The accepted approach to the determination of whether a sentence is manifestly inadequate (or excessive) is to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question and the personal circumstances and antecedents of the offender.

The submissions of the parties in the appeal

23 The appellant submitted that the sentence imposed on count 1 in the indictment did not properly reflect the overall circumstances of the case. In particular, it was not a proper reflection of the seriousness of the offending and did not give effect to the paramount sentencing consideration in offences of this type, namely, deterrence. Further, it was said, the sentence was inconsistent with similar cases. It was submitted that the respondent's personal circumstances were unfavourable and could not properly justify lenience. It was submitted that this court should intervene in order to maintain proper standards of sentencing for offences of this type.

24 The respondent submitted that her role in the drug dealing enterprise was 'secondary' to that of her partner, Mr Riley. It was also submitted that her criminality was 'tempered' by her dependence upon Mr Riley, her drug addiction and her desire to maintain a ready supply of drugs for herself. It was submitted that the respondent was subservient to Mr Riley's 'dominant and bullying character' and that his dominance and her emotional dependence upon him were 'highly mitigating'. Ultimately, the respondent submitted that while the sentence for 3 years 8 months' imprisonment may be considered to be at the lower end of the scale, it was not manifestly inadequate.

25 The maximum penalty for an offence of possession of methylamphetamine with intent to sell or supply it to another is 25 years' imprisonment or a fine of $100,000 or both: Misuse of Drugs Act s 34(1)(a).

26 The sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction were described in The State of Western Australia v Atherton [2009] WASCA 148 [125] as follows:

The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. See Bellissimo v The Queen (1996) 84 A Crim R 465, 471. 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 solely for commercial gain. See Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [67] - [70]; Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [50]; Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [52]. The degree of purity is often regarded as significant. See The State of Western Australia v Tran [2008] WASCA 183 [9]. Matters personal to an offender will almost always be a very limited consideration, but they are not completely irrelevant. See Bellissimo, (469); Tulloh [12], [43], [46].

27 The respondent's offending was clearly serious. She was found in possession of a substantial quantity of methylamphetamine which was relatively pure and could have been 'cut' further to increase its bulk and thus the amount available for sale. Although the respondent was a user of methylamphetamine, the scale of the operation was such that its overwhelming purpose was to make money. This is particularly evident from the entries in two notebooks and the large sum of cash that was found in the safe. The fact that records were kept and the presence of a CCTV camera system at the house reveals a degree of planning and sophistication. Although Mr Riley was the principal in the operation before his incarceration, the respondent was also involved. After his incarceration, she took over the operation of the drug dealing business.

28 It may be accepted that Mr Riley had a dominant personality, but there is nothing to support the proposition that he dominated and bullied the respondent into drug dealing against her wishes. No finding to that effect was made by her Honour. The respondent's drug dealing after Mr Riley's incarceration contradicts this submission.

29 The respondent's offending was not a 'one-off' aberration. It was an offence committed in the context of an ongoing drug dealing business which had been in existence for some months.

30 I now turn to a consideration of comparable cases. Comparable cases are a yardstick against which to measure the sentence under consideration, with the aim of achieving broadly consistent outcomes in comparable cases. This said, each case must be determined upon its own facts and circumstances. The range of sentences customarily imposed does not fix the range of a sound sentencing discretion. The mere fact that a sentence comes within or is outside the range of sentences imposed in the past does not necessarily establish error.

31 In support of the contention that the sentence imposed upon the respondent was manifestly inadequate, the appellant cited the following cases: Nelis v The State of Western Australia [2000] WASCA 194; Colangelo v The State of Western Australia [2004] WASCA 294; Dixon v The State of Western Australia [2006] WASCA 255; Borbil v The State of Western Australia [2007] WASCA 24; Bosworth v The State of Western Australia [2007] WASCA 144; Dao v The State of Western Australia [2007] WASCA 237; TLM v The State of Western Australia [2009] WASCA 106; Cant v The State of Western Australia [2009] WASCA 188; Wilson v The State of Western Australia [2010] WASCA 82; The State of Western Australia v Fleming [2010] WASCA 162; Haasy v The State of Western Australia [2010] WASCA 207; Lynch v The State of Western Australia [2011] WASCA 243; Moreton v The State of Western Australia [2011] WASCA 258; Chu v The State of Western Australia [2012] WASCA 135 and The State of Western Australia v Littlefair [2013] WASCA 177.

32 It is unnecessary to describe in detail the circumstances of these cases and the sentences that were imposed. It is sufficient for me to say that I have read these cases. A consideration of them reveals that the sentence here is inconsistent with the range of sentences imposed in those cases and points towards manifest inadequacy.

33 To illustrate this, I cite three examples. In Littlefair, the respondent, who was a 47-year-old woman whose partner was in gaol, pleaded guilty on the fast-track system to possession, with intent to sell or supply it to another, of 96.9 g of methylamphetamine with an average purity of 40%. Unlike the respondent in this case, her personal circumstances and antecedents were reasonably good and she had taken some positive steps towards her rehabilitation. At first instance, she was sentenced to 2 years and 6 months' imprisonment. On appeal by the State, that sentence was found to be manifestly inadequate. This court substituted a sentence of 4 years' immediate imprisonment. Of course, the respondent in the present case does not have the mitigatory advantage of entering a fast-track plea of guilty.

34 In Lynch, the appellant was convicted on his fast-track plea of guilty to one count of possession of a total of 34.76 g of methylamphetamine with a purity ranging between 34% to 38% with intent to sell or supply it to another. He was 43 at the time of the offences, with good antecedents. He was sentenced to 3 years and 6 months' imprisonment. On appeal, this court found that sentence not to be manifestly excessive. Self-evidently, the appellant in Lynch received an almost identical sentence to the respondent in this case in respect of a substantially smaller quantity of methylamphetamine and after an early plea of guilty.

35 In Moreton, the appellant was convicted after trial of possession, with intent to sell or supply to another, of 27.3 g of methylamphetamine with a purity of 16%. At the time of the offence, he was on bail for a similar offence with respect to 3.76 g of methylamphetamine. The appellant was 39 years of age at the time of the offending and had a prior criminal history. The appellant in that case was sentenced to 5 years' imprisonment. This court was not persuaded that the sentence was manifestly excessive. It can be seen that the appellant in Moreton received a substantially greater sentence than the respondent. As with Lynch, the amount of the drug was much smaller than the amount possessed by the respondent.

36 The respondent's antecedents were unfavourable. Her criminal history showed that she was not a person of good character. She had committed prior relevant offences. Her antecedents afforded her little mitigation and underscored the need for personal deterrence. While the respondent has indicated a preparedness to engage in rehabilitation and had taken some small steps in that regard, it cannot be said that the respondent had made any real progress. Her addictions to alcohol and illicit substances are of long standing and appear entrenched. The psychological report indicates that she is only at a 'precontemplative' stage in dealing with these issues. Her relationship with Mr Riley continues. It is not a relationship conducive to a law-abiding future and her rehabilitation.

37 In my opinion, the appellant's submission that the sentence of 3 years and 8 months' imprisonment was, in the context of all of the relevant facts and circumstances, not a proper reflection of the serious nature of the offence has been made out. Further, I accept that the sentence failed to adequately reflect the need for personal and general deterrence and was inconsistent with the standards of sentencing customarily observed.

38 With great respect to her Honour, I am satisfied that the sentence imposed at first instance was unreasonable or plainly unjust. The sentence was not just merely lenient. It was substantially outside the range open to the trial judge to impose on a proper exercise of her discretion. Implied error has been demonstrated. The appeal must be allowed and the respondent resentenced.

39 The respondent did not contend that the residual discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) arose in this case. In any event, I can see no basis for invoking it. Appellable error has been clearly established and it is necessary for this court to intervene to maintain proper standards of sentencing for drug offending of the type committed by the respondent.

40 This court must impose a sentence commensurate with the seriousness of the offence, having regard to the maximum penalty for the offence, the circumstances of the commission of the offence and the aggravating and mitigating circumstances.

41 The circumstances of the offence which I have already described were serious. The offending occurred in the context of an ongoing drug dealing business. The respondent was not a minor or reluctant player. She, in effect, took over as the principal in the business after Mr Riley's incarceration. Her primary motive was profit. There was, in fact, little that could be said by way of mitigation. Her antecedents were not favourable and her prospects for rehabilitation are, at best, guarded.

42 I would resentence the respondent to 5 years 6 months' imprisonment with eligibility for parole. I would order that the sentence be backdated to commence on 9 June 2013.

1. The appeal is allowed.
2. The sentence imposed by Deane DCJ on 7 August 2013 is set aside and substituted with a sentence of 5 years 6 months' immediate imprisonment, effective from 9 June 2013.
3. The respondent is eligible for parole.
4. All other sentences and the order for concurrency stand.