Court of Appeal (WA)|2007-11-08|Before: Wheeler JA

THE STATE OF WESTERN AUSTRALIA -v- TOOTHILL [2007] WASCA 236 (8 November 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- TOOTHILL [2007] WASCA 236

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

File No : IND 112 of 2005, IND 434 of 2005

Criminal law - Sentencing - State appeal against sentence - Whether head sentence manifestly inadequate - Whether sentences ought to have been concurrent - Totality principle - Turns on own facts

Sentencing Legislation Amendment and Repeal Act (WA), Sch 1

2 MILLER JA: The relevant facts and circumstances of the respondent's offences are fully set out in the judgment of Le Miere AJA and it is unnecessary to repeat them.

3 I agree with Le Miere AJA that the sentence of 4 years 8 months' imprisonment imposed by the learned sentencing judge on the respondent for possession of 499 grams of methylamphetamine with intent to sell or supply was manifestly inadequate. That sentence should be increased to one of 6 years' imprisonment.

4 I would allow the second ground of appeal to the extent that the sentence of 18 months' imprisonment for the offence of possession of 11.4 grams of MDMA with intent to sell or supply should be ordered to be served cumulatively upon the sentence of 6 years' imprisonment.

5 As Le Miere AJA points out at [48], the respondent was convicted of three offences which did not contain any common elements. The imposition of cumulative sentences would not therefore have the effect of punishing the respondent twice for the commission of elements that were common. Further, the three offences do not arise out of the one criminal enterprise, transaction or episode.

6 The matter is one of totality. This is recognised by Le Miere AJA at [50]. I differ from his Honour's conclusion that a total aggregate sentence of 6 years' imprisonment is a just and appropriate measure of the total criminality involved in this case. In my opinion, a total aggregate sentence of 7 years 6 months' imprisonment would properly reflect that criminality. I respectfully adopt the following passage in the judgment of Ipp J in Jarvis v The Queen (1993) 20 WAR 201, 207:

The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct: see Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; Evangelista v The Queen; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika [1986] NTSC 32; (1986) 83 FLR 312.

7 I conclude that a fair and just reflection of the total criminality of the respondent's conduct would lead to one of the two offences of possession with intent to sell or supply of lesser quantities of drugs being made cumulative upon the 6-year sentence imposed for possession with intent to sell or supply of the 499 grams of methylamphetamine.

8 The respondent may have had a longstanding drug habit and may have befriended his co-offender to obtain drugs, but the fact remains that he committed three separate and distinct offences which would ordinarily call for accumulation unless the totality principle was breached. In all the circumstances of the case, I cannot see that a sentence of 7 years 6 months would be a crushing sentence. It is the equivalent of a sentence of 11 years 3 months prior to the application of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), but it must be appreciated that the respondent pleaded not guilty to the count of possession with intent to sell or supply of 499 grams of methylamphetamine and had no option but to plead guilty to the two offences of possession with intent to sell or supply of the lesser quantities of drugs.

9 The respondent had been given the benefit of suspended sentences of imprisonment for those offences when dealt with in the District Court at Perth on 7 December 2005, but, just over two months later, he had been charged with further drug offences. They were offences of a minor nature, but drug offences they were. Having been given the chance to rehabilitate himself, the respondent failed to take the opportunity afforded to him. Further, he committed the two minor drug offences which breached the suspended sentences only two months or so prior to his trial for the major offence of possession with intent to sell or supply of 499 grams of methylamphetamine.

10 I would allow this appeal on ground 1 and increase the sentence of 4 years 8 months to one of 6 years. I would also allow the appeal on ground 2 and impose the sentence of 18 months for possession with intent to sell or supply of 11.4 grams of MDMA cumulatively upon the sentence of 6 years' imprisonment imposed for the major offence. That would make an aggregate sentence of 7 years 6 months, which I consider to be an appropriate measure of the respondent's criminality.

11 LE MIERE AJA: The appellant appeals pursuant to leave granted on 29 September 2006 against the sentences imposed on the respondent by a judge of the District Court on 5 July 2006.

12 The respondent was charged with the following offences:

(a) possession of 499 g of methylamphetamine with intent to sell or supply;

(b) possession of 11.4 g of 3,4-Methylenydioxy-N, alpha-dymethylphenylethylamine (MDMA) with intent to sell or supply; and

contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).

13 The facts and circumstances giving rise to the offences are as follows.

14 On 26 July 2004 a warrant under the Telecommunications (Interception) Act 1979 (Cth) enabling the interception of a mobile telephone service used by Leigh Andrew Barry Monument was obtained. The intercept was part of an operation which included surveillance by members of the WA Police Service.

15 On 22 August 2004 Monument telephoned the respondent. In the conversation Monument referred to 'moving yours on straightaway if you can'. Monument also referred to something which was to occur 'tomorrow night'. There was an arrangement to speak the next day.

16 On the following day, 23 August 2004, there was a further conversation between the respondent and Monument. A meeting was arranged later that evening. Later that evening Monument telephoned the respondent and told him to obtain a bicycle helmet. A bike was also obtained and Monument and the respondent drove in Monument's vehicle to Balcatta with the bike being carried in the vehicle. The vehicle was stopped and Monument then rode off on the bicycle. He was subsequently observed with a backpack. At 7.29 pm Monument's vehicle, being driven by the respondent, was seen at a service station. At 7.38 pm Monument was seen riding the bicycle and wearing the backpack. He was later seen disposing of the backpack by throwing it off towards some bushes. At 7.39 pm the respondent telephoned Monument and told him that he believed that he (the respondent) was under surveillance.

17 The respondent was subsequently apprehended by police. The backpack was found by police to contain a large plastic bag which contained methylamphetamine. Analysis revealed that the weight of the material was 499 g and that it was approximately 78% pure. That is a very high degree of purity. The sentencing judge observed that that sort of percentage purity is normally associated with manufacture.

18 At about 9.35 pm the police executed a Misuse of Drugs search warrant on the respondent's home. During the search police located drugs that were later analysed and found to be 11.4 g of MDMA or ecstasy at 27% purity and 3.36 g of methylamphetamine at 34% purity.

19 On 7 December 2005 in the District Court at Perth the respondent pleaded guilty to an indictment which reflected the charges in referred to in (b) and (c) above. This indictment was dated 6 April 2005. The sentencing judge sentenced the respondent to 18 months' imprisonment on each charge and suspended those sentences for a period of 24 months. Although her Honour made no express order in this regard, under s 88(2) of the Sentencing Act 1995 (WA), the sentences were to be served concurrently with each other.

20 On 22 February 2006, while still serving the suspended sentences, the respondent was charged pursuant to s 6(2) of the Misuse of Drugs Act, with being in possession of just over 1 g of cannabis and pursuant to s 5(1)(d)(i) of the Act, to possession of a smoking implement. On 7 March 2006 the respondent pleaded guilty in the Perth Magistrates Court, was fined $150 for possession of cannabis, and fined $100 for possession of the smoking implement, namely a pipe.

21 On 5 May 2006, following a four day trial in the District Court, the respondent was convicted by a jury on the charge of possession of 499 g of methylamphetamine with intent to sell or supply. This charge was contained in a separate indictment dated 14 April 2005. Sentencing was adjourned to 22 June 2006.

22 On 22 June 2006 the respondent pleaded guilty to a breach of the suspended sentences, and after hearing submissions from counsel, the judge adjourned sentencing to 5 July 2006.

23 On 5 July 2006 the sentencing judge sentenced the respondent in relation to all three charges referred to as follows:

(a) possession of 499 g of methylamphetamine with intent to sell or supply - 4 years eight months' imprisonment with eligibility for parole, backdated to 5 May 2006;

(b) possession of 11.4 g of MDMA with intent to sell or supply - 18 months' imprisonment with eligibility for parole, to be served concurrently with the sentence in (a).

(c) possession of 3.363 g methylamphetamine with intent to sell or supply - 18 months' imprisonment with eligibility for parole to be served concurrently with the sentence in (a).

The aggregate effective sentence was 4 years and 8 months' imprisonment with eligibility for parole and backdated to 5 May 2006.

24 On 2 June 2006 in the District Court, a different District Court Judge sentenced the respondent's co-offender Leigh Andrew Barry Monument to 6 years' imprisonment for the offence of possession of 499 g of methylamphetamine with intent to sell or supply. Monument had pleaded guilty to the charge prior to the commencement of the respondent's trial and had offered to assist the prosecution at the trial by giving evidence against the respondent, which offer was refused. There were other mitigatory factors involved in Monument's case including a history of poor health. Monument's plea of guilty, offer to assist the prosecution and health problems were all factors that the court in sentencing him was entitled to take into account in discounting the sentence to be imposed.

25 The sentencing judge remarked that whilst the respondent was involved in assisting Monument to move the drugs, the respondent's involvement was not as the principal in the transaction. Monument had arranged for the collection of the backpack and it was he who involved the respondent in the activities of 23 August 2004. It was Monument who arranged for the collection of the drugs and it was Monument's idea to use the bicycle. It was Monument who disposed of the backpack. The State accepted that the respondent played a lesser role in the offence than Monument. The sentencing judge accepted that the respondent's role was less significant than that of Monument. The respondent was the follower.

26 At the time of sentencing the respondent was aged 26. At the date of the commission of the offence he was 24 years of age. The respondent left home at the age of 17 years and lived in rented accommodation. At the time of sentencing he was a single man with no dependants and in good health. He had good family relations. His formal education was completed at 15 years of age. He then held a variety of positions, including kitchen hand, yard hand and delivery person. In 2002 the respondent successfully completed a communications licence. In August 2003 he commenced an apprenticeship as a refrigeration and air-conditioning mechanic. With the employer by whom he was still engaged at the time of trial he was in his third year of apprenticeship. The sentencing judge accepted that since leaving school the respondent had a good employment record and his current employer had indicated potential for a successful career as a tradesman.

27 The pre-sentence report disclosed that the respondent had a long standing drug habit involving principally cannabis and amphetamines. He started using cannabis at 16 years of age. At about the age of 22 years the respondent commenced using amphetamines. He used the drug on weekends and spent $200 per day on the drug on those occasions. In a letter to the sentencing judge the respondent said that because of his drug addiction and low wage he would sell small amounts of drugs to friends to pay for his habit. The respondent said that he had befriended Monument who supplied the respondent's habit on credit. The respondent had found himself in debt to Monument. The respondent said that he was not happy about assisting Monument but he went along with the matter. The respondent expressed remorse for his actions and for the humiliation and pain he had caused his family and the community.

28 Between June and November 2005 the respondent was involved in a substance abuse programme. Notwithstanding that programme he had continued using cannabis, although at the time of sentencing he said that he had ceased using cannabis.

29 The sentencing judge considered references which spoke highly of the respondent.

30 At the time of the commission of the offence in August 2004 the respondent had no prior convictions. He was convicted in November 2004 of two counts of possessing cannabis and possessing a smoking implement for which he was fined $200 and $150 respectively.

31 In his sentencing remarks the sentencing judge outlined the circumstances of the offence and the respondent's antecedents and personal circumstances.

32 The sentencing judge referred to the role of Monument in the offence and the sentence imposed upon Monument. The sentencing judge remarked that the judge sentencing Monument had dealt with Monument on the basis that he was a vital cog in the distribution chain between manufacturer and street distributor. Monument was sentenced to a term of imprisonment of 6 years after taking into account all of the mitigatory factors.

33 The sentencing judge said that the sentence imposed upon the respondent must be commensurate with the seriousness of the offence. The sentencing judge referred to Tulloh v The Queen [2004] WASCA 169; 147 A Crim R 107. The sentencing judge observed that, having regard to the predominance of considerations of general and personal deterrence in relation to serious drug offences, personal circumstances would generally be given very little weight.

34 The sentencing judge said that in all the circumstances and taking into account all of the matters he had mentioned, an appropriate term of imprisonment was 7 years. His Honour concluded that in view of the seriousness of the offence an immediate term of imprisonment was the only appropriate sentence to be served. His Honour observed that the term of 7 years must be reduced by one third under the provisions of the Sentencing Legislation Amendment and Repeal Act, resulting in a net term of 4 years and 8 months which was to be backdated to commence on 5 May 2006.

35 Ground 1 of the appeal is, in substance, that the sentence imposed for possession of 499 g of methylamphetamine with intent to sell or supply is manifestly inadequate.

36 In Tulloh Miller J [12] affirmed the sentencing judge's remarks in that case that the Court of Criminal Appeal had 'repeatedly said in relation to offences of drug dealing that when people are found guilty of being in possession of a large quantity of high grade methylamphetamine, the personal circumstances of the offender carried little weight in the sentencing process'. Deterrence is a major consideration in the sentencing process in such cases. Miller J [15] referred with approval to the statement by Roberts-Smith J in Kirby v The Queen [2003] WASCA 164 [143] that amphetamine trafficking is now recognised by the court to be in the higher range of seriousness in the scale of drug trafficking offences and that the major sentencing considerations for offences of trafficking in dangerous drugs of addiction such as amphetamines, cocaine and heroin are general and personal deterrence, the major objective being to stop people doing it.

In determining whether a sentence is within a sound discretionary range, it is proper to have regard to decisions in comparable cases. Indeed, part of this Court's role is to ensure an appropriate level of consistency in the sentences imposed in this State. At the same time I am mindful that the comparative exercise can be of limited utility because each case turns on its own facts and circumstances. However, where as in this case, deterrence is the dominant sentencing consideration and personal circumstances and antecedents carry little weight, the range of a legitimate variation in sentences should be materially reduced and comparisons of greater assistance. [46]

38 Both Miller J [22] - [41] and McLure J [49] reviewed a number of decisions in which sentences were imposed for offences of dealing in dangerous drugs of addiction such as amphetamines, cocaine and heroin.

39 Having regard to the quantity and purity of the drug involved and the nature and level of the respondent's participation in the distribution of the drug, the usual range of sentences for an offence such as possession of 499 g of methylamphetamine with intent to sell or supply is 6 - 10 years' imprisonment after taking into account the one third reduction required by cl 2(1) of sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (The Sentencing Amendment Act). That was accepted by senior counsel for the respondent.

40 There is nothing about the circumstances of the offence or the respondent to justify a sentence significantly outside the usual range for an offence of the sort for which the respondent was sentenced.

41 Having regard to all of the circumstances of the offence and matters personal to the respondent, I am satisfied that the sentence of 4 years and 8 months' imprisonment falls outside a sound exercise of the discretion conferred on the sentencing judge. The sentence is manifestly inadequate.

42 I conclude that the appeal should be allowed pursuant to Criminal Appeals Act 2004 (WA) s 31(4) on the ground that a different sentence should have been imposed. The sentence should be set aside and the court should impose a new sentence pursuant to s 31(5)(a).

43 Having regard to the drug involved, including its quantity and purity, the nature and level of the respondent's participation in the offence and matters personal to the respondent, the respondent should be sentenced to a term of 6 years' imprisonment after taking into account sch 1 of the Sentencing Amendment Act. The appropriate sentence is at the lower end of the usual range of sentences for an offence of the sort for which the respondent was sentenced because of the nature and level of the respondent's involvement in the offence. The respondent was low in the hierarchy of the distribution organisation. The respondent was recruited by Monument and played a role subordinate to Monument in the collection of the methylamphetamine.

44 Having regard to all of the matters to which I have referred the only appropriate disposition is that the term of imprisonment be served immediately. The sentence should be backdated to commence on 5 May 2006. The respondent should be eligible for parole.

45 Ground 2 of the appeal is that the sentencing judge erred in ordering that the sentences imposed for possession of 11.4 g of MDMA with intent to sell or supply and possession of 3.36 g of methylamphetamine with intention to sell or supply be served concurrently with the sentence imposed in relation to the offence of possession of 499 g of methylamphetamine with intent to sell or supply as the total effective sentence was manifestly inadequate having regard to the totality of the criminality.

46 The appellant submits that the failure to order the sentence for possession of MDMA with intent to be served cumulatively demonstrates manifest error. The respondent has in effect, it is submitted, received no punishment at all for an additional serious offence involving drug dealing. The police found 3.36 g of methylamphetamine in the respondent's possession which forms no part of the 499 g found in the backpack.

47 The appellant's submission was founded upon the total aggregate sentence of 4 years and 8 months' imprisonment imposed by the sentencing judge. For the reasons stated, I would set aside the sentence imposed for the offence in relation to the 499 g of methylamphetamine and impose a sentence of 6 years' immediate imprisonment in its place. It is then necessary to consider ground 2 of the appeal on the basis that the aggregate effective sentence is 6 years' immediate imprisonment.

48 The three offences of which the respondent was convicted do not contain common elements. The imposition of cumulative sentences would not involve punishing the respondent twice for the commission of elements that are common - see Pearce v The Queen (1998) 194 CLR 610 [40].

49 The three offences do not arise out of one criminal enterprise, transaction or episode so as to attract the 'one transaction' or the 'continuing episode' rule, which rule would tend against the imposition of a cumulative sentence if applicable (see commentary in Sinagra-Brisca v The Queen [2004] WASCA 68 [28] - [30]).

50 However, the general principles concerning totality rest on a different jurisprudential basis. The totality principle has regard to the overall criminality of the offences. In Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, McHugh J said:

The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved ... The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. (307 - 308)

51 There are a number of relevant factors in considering the overall criminality of the offences. First, the three offences were of a similar nature in so far as they all involved dealing in illicit drugs. Secondly, the three offences were each committed at the same time in the sense that the respondent was found in possession of the drugs at or about the same time. Thirdly, the sentencing Judge accepted that all three offences arose out of the respondent's addiction and selling drugs to pay for his habit.

52 In all the circumstances, a total aggregate sentence of 6 years' imprisonment is a just and appropriate measure of the total criminality involved. I would dismiss ground 2 of the appeal.

53 I would grant leave to appeal on ground 1 of the appeal. For the reasons stated I would set aside the sentence imposed on the respondent in relation to the offence of possession of 499 g of methylamphetamine with intent to sell or supply and impose in its place a sentence of 6 years' immediate imprisonment backdated to commence on 5 May 2006. The respondent shall be eligible for parole. I would otherwise dismiss the appeal.

Legislation Amendment and Repeal Act 2003

(Interception) Act 1979

THE STATE OF WESTERN AUSTRALIA -v- TOOTHILL [2007] WASCA 236 (8 November 2007)

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Judgment (72 paragraphs)

THE STATE OF WESTERN AUSTRALIA -v- TOOTHILL [2007] WASCA 236 (8 November 2007)

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