TURNER -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 132 (28 July 2021)

(1) 41.88 g of cannabis in a clip seal bag within a vacuum seal bag;

(3) 26.4 g and 14.07 g of cannabis in a clip seal bag within two vacuum seal bags;

(4) 8.57 g of MDMA powder in a vacuum seal bag; and

(5) 4.96 g of methylamphetamine in a clip seal bag.

1. The sentencing judge did not accept the appellant's evidence, at a trial of the issues, to the effect that he intended to sell only a small quantity of the drugs and the rest were for his personal use. The sentencing judge made the following findings as to the appellant's role:[3]

I find that he was a regular user of drugs.

I find it highly likely he either sold or supplied drugs to others within his circle and had done so previously. I find that whilst it is likely that he intended to use some of the drugs in his possession, he also intended to sell or supply the majority of it, and whilst I cannot precisely say how much he would have sold, as opposed to supply it - and I don't need to do so because of the deeming provisions - I'm not necessarily satisfied that he was making large profits or dealing in very large quantities. And I would regard him as a low to mid-level user/dealer.

1. The appellant was 27 years old at the time of offending, and 28 years old at the date of sentencing. He had a 10-year-old son who was in the appellant's vehicle at the time it was stopped by police with the drugs inside.[4]
2. The appellant grew up in Mandurah and attended Narrogin High School, which he left in year 10. The appellant had worked consistently, doing gardening and handyman work. He became a father at 17 years of age, but had separated from the boy's mother shortly after his son's birth. The appellant's own parents separated when the appellant was 18 years old.[5]
3. The appellant had prior convictions, including for aggravated burglary in 2012 ‑ 2013, for which he received conditionally suspended imprisonment orders and community-based orders. He spent time in prison on remand for these offences, but was not ultimately sentenced to immediate imprisonment and successfully completed the orders.[6]
4. The appellant was not remorseful. He presented as someone for whom taking drugs and sharing drugs with friends was just a normal way of life. He pleaded guilty on the first day listed for his trial, for which he received a discount of 5% under s 9AA of the Sentencing Act 1995 (WA).[7]

1. As the grounds of appeal allege inferred rather than express error, it is unnecessary to refer to the sentencing judge's reasons in any detail. The sentencing judge noted that the appellant was interviewed by police and answered some of their questions.[8] He was entitled to some credit for his cooperation. Her Honour noted the harmful effects of prohibited drugs and the need for the appellant to address his use of drugs to cope with his emotions.[9] The sentencing judge referred to the need to give effect to considerations of personal and general deterrence.[10] The judge observed that there was little by way of mitigation.[11]
2. The sentencing judge was satisfied that immediate imprisonment was the only appropriate sentence for the offences. Her Honour considered the appropriate sentences for the individual offences to be 2 years 8 months' immediate imprisonment for each of the MDMA and cannabis offences, and 3 years 6 months' immediate imprisonment for the methylamphetamine offence. Applying the totality principle, the judge reduced the sentence for the MDMA offence to 18 months and ordered that sentence to be served cumulatively upon the sentence for the methylamphetamine offence. The sentencing judge ordered the sentence for the cannabis offence to be served concurrently, resulting in a total effective sentence of 5 years' imprisonment.[12]
3. The appellant was made eligible for parole, and his sentence was backdated by one day to take account of time spent in custody on remand.[13]

1. The grounds of appeal assert inferred, rather than express, error. The relevant principles are well established, and were summarised in Kabambi v The State of Western Australia:[14]

(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. It is convenient to begin by considering ground 1, insofar as it alleges that the individual sentence of 2 years 8 months' immediate imprisonment for the cannabis offence was manifestly excessive.

1. The maximum penalty for the cannabis offence was 10 years' imprisonment and/or a fine of $20,000.

1. The general sentencing considerations for serious drug offences are well established, and were summarised in Gaskell v The State of Western Australia in the following terms:[15]

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. That is because it can be presumed that the greater the quantity and the purity, the greater the harm which may be done to the community. 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 almost always be subsidiary considerations, but they are not completely irrelevant.

As this court has recently observed, while categorisation of the role of an offender may promote consistency, the utility of such an exercise is often limited by the extent of the available information. Such a characterisation is not an essential task to be undertaken in every case, regardless of whether it is possible or appropriate. The characterisation of an offender's role, even when possible, must not obscure an assessment of what the offender did. (citations omitted)

1. In Lester v The State of Western Australia,[16] McLure P observed:

The court has since 2001 repeatedly stated that it takes a more serious view of the threat the cannabis trade poses to society and the increased prevalence of it. The risk correlation between the use of cannabis and mental illness and progression to harder drugs is a familiar theme in sentencing materials in more recent times.

Deterrence is the main sentencing consideration for dealing in prohibited drugs, including cannabis, and matters personal to the offender are accorded correspondingly less weight. In the past five years at least there has been a tangible, incremental firming up in the sentences imposed for dealing in other types of prohibited drugs. That is not obviously so in the sentencing of offenders for dealing in cannabis, notwithstanding the identified need.

1. As this court noted in Rillotta v The State of Western Australia,[17] these observations have been adopted and applied by this court. The general sentencing patterns for dealing in cannabis were reviewed in Rillotta.[18] Given the quantity of cannabis involved in this case and the nature and degree of commerciality of the appellant's dealing, the length of the 2 year 8 month sentence of imprisonment is significantly greater than sentences generally imposed for this kind of offending. The respondent accepted that this is so.
2. This is illustrated by this court's decision in Harvey v The State of Western Australia.[19] In that case the 24-year-old offender attempted to purchase 909 g of cannabis, located at a house which was searched by police, for $8,000. The offender had previously purchased cannabis from the occupier of the premises. He intended to keep about 57 g of cannabis for himself and sell the rest for a profit within his social circle. The offender pleaded guilty and received a discount of 15% under s 9AA of the Sentencing Act.
3. In Harvey, this court held a sentence of 2 years' immediate imprisonment to be manifestly excessive, and resentenced the offender to 12 months' immediate imprisonment. In doing so, the court summarised some previous decisions in the following terms:[20]

In Rodi v The State of Western Australia [[2014] WASCA 233], the offender, a mature man without criminal record, was sentenced to 12 months' immediate imprisonment after trial for possessing about 925 g of cannabis as part of a 'fairly lucrative cash business'. In that case the sentencing judge had been mistaken as to the applicable maximum penalty. This court regarded a term of 12 months' immediate imprisonment as an appropriate sentence having regard to the quantity of cannabis possessed, that it was possessed for the purpose of commercial dealing and that the appellant was found to be a mid-level dealer. Rodi's appeal was dismissed on the basis that, despite the sentencing judge's error of law, there was no basis for concluding that a different sentence should have been imposed. That is, the court did not merely decide Rodi on the basis that the sentence imposed was not manifestly excessive.

In Lester, a mature offender who established a relatively sophisticated cultivation operation, and was found in possession of 2 kg of cannabis head material, received a sentence of 18 months' immediate imprisonment. ... Lester was a regular cannabis user. He had a minor record of simple drug related offences, and pleaded guilty at the first reasonable opportunity.

In Sandwell [v The State of Western Australia [2012] WASCA 15], the offender received a 12 month sentence of immediate imprisonment, on a plea of guilty, for possessing about 2.5 kg of cannabis and 147 cannabis seedlings. He was sentenced on the basis that he cultivated and possessed the cannabis with the intention of using it himself and distributing it to a small number of his friends. While Sandwell was not engaged in a commercial enterprise, he was in possession of a much larger quantity of cannabis than the appellant, and was responsible for its cultivation.

Although he played only a very minor role in harvesting a hydroponic crop, the offender in HNA [v The State of Western Australia [2016] WASCA 165] received a 9 month sentence of immediate imprisonment.

In Miles v The State of Western Australia [[2016] WASCA 138], a total effective sentence of 22 months' immediate imprisonment was upheld in respect of possession of about 421 g of cannabis with intent to sell or supply, together with possession of dexamphetamine tablets and $27,500 in cash reasonably suspected of being unlawfully obtained. The sentence imposed for the cannabis offence was 11 months' immediate imprisonment. The impact of the totality principle means, however, that the individual sentence for the cannabis offence needs to be treated with some caution.

(original emphasis)

1. In Savory v The State of Western Australia,[21] a 43‑year‑old offender received a package of what he thought was approximately 1.3 kg of cannabis (which police had substituted with an inert substance after intercepting the package) at his post office box. He had a prior history of drug offending, and was on bail for drug offences when he committed the subject offence. The offender received a 15% discount for his plea of guilty, under s 9AA of the Sentencing Act, and was sentenced to 20 months' immediate imprisonment. This court, whilst indicating they would increase the discount to 20% under s 9AA, considered a sentence of 20 months' immediate imprisonment was appropriate in all the circumstances and dismissed the appeal.
2. In Griffin v The State of Western Australia,[22] the 53-year-old offender was convicted after trial of cultivating 20 cannabis plants and possessing about 1.8 kg of cannabis (including head, leaf and stem material) with intent to sell or supply it to another. The offender operated a hydroponic set-up in his home, and was sentenced on the basis that there was no commerciality involved in the supply of cannabis to his social circle. Leave was refused to appeal against the individual sentences of 2 years' immediate imprisonment for each of the cultivation and possession offences, and the total effective sentence of 2 years' immediate imprisonment.

1. In the present case, the appellant possessed a lesser quantity of cannabis than the offenders in any of the above cases. The element of commerciality involved in the offending was limited.
2. However, the offending was not fleeting, unplanned or out of character. The appellant engaged in a course of distributing three different types of prohibited drug. While he dealt with drug users known to him, he did so regularly and to some extent for commercial gain. It was an aggravating feature of the offending that the appellant's 10‑year‑old son was present in the vehicle the appellant used to transport the prohibited drugs.

1. There were no significant mitigating features to the appellant's case other than his plea of guilty. His late plea of guilty on the morning of the trial justified only a small discount of 5% under s 9AA of the Sentencing Act, particularly when the advantages to the State of the plea were reduced by the need for a trial of the issues in any event. The appellant did not have youth, remorse or prior good character as mitigating factors. The sentencing judge (somewhat generously) gave the appellant some credit for cooperating in answering some police questions, but his limited cooperation could justify only a very modest discount. The judge correctly recognised personal deterrence to be of significance given the appellant's poor prior record (albeit not for offences involving the sale or supply of prohibited drugs) and his views as to drug use.

1. Having regard to the maximum penalty, the circumstances of the offending, the appellant's personal circumstances, customary sentencing standards and all relevant sentencing principles, we are of the view that the individual sentence of 2 years 8 months' immediate imprisonment for the cannabis offence was unreasonable or plainly unjust.
2. In reaching this conclusion, we have not overlooked the fact that the severity of the individual sentence for the cannabis offence was moderated by the order that it be served wholly concurrently with other sentences. However, the sentence of 2 years 8 months imposed by the sentencing judge for the cannabis offence is so far in excess of that which is properly capable of being regarded as commensurate with the seriousness of the cannabis offence so as to drive us to the conclusion that the sentence is manifestly excessive, notwithstanding that it is to be served concurrently with other sentences.
3. The inferred error as to the sentence for the cannabis offence is not immaterial to the overall sentencing exercise, notwithstanding that the sentence for that offence does not increase the total effective sentence. As this court recently observed in O'Hara v The Queen:[23]

The total effective sentence reflects the overall criminality of the appellant's offending. Orders for concurrency and cumulacy or any adjustments to an individual sentence to take into account totality are informed by the sentencing judge's assessment of the overall seriousness of the offending. This assessment is, in turn, informed by the seriousness of the individual offences.

1. The inferred error in sentencing for the individual cannabis offence in the present case is at least capable of affecting the evaluation of the overall criminality informing the total effective sentence.

1. O'Hara holds that establishment of inferred error of the kind described above in the imposition of a wholly concurrent sentence obliges this court to resentence the appellant for all the offences. This involves the court exercising afresh the sentencing discretion with respect to all counts on the indictment.[24] It is therefore unnecessary, in the present case, to deal with ground 1 so far as it asserts that the individual sentences for the MDMA and methylamphetamine offences were manifestly excessive, or with ground 2.
2. The circumstances of the offences and the appellant's personal circumstances are referred to above.
3. The maximum penalty for the MDMA and methylamphetamine offences is 25 years' imprisonment and/or a fine of $100,000. In addition to the cannabis cases referred to above, the parties have referred to a range of sentencing decisions of this court in relation to sentencing for drug offences involving MDMA[25] and methylamphetamine,[26] as well as total effective sentences for what was referred to by the appellant as 'poly‑substance offending'.[27] It is clear that a sentence of immediate imprisonment is the only appropriate kind of sentence in respect of the offending.
4. We agree with the sentencing judge that a discount of 5% under s 9AA of the Sentencing Act is appropriate, given the lateness of the plea of guilty and the need for a trial of the issues in any event. As noted above, there are no other significant mitigating factors.
5. In our view, the following individual sentences of immediate imprisonment are commensurate with the seriousness of the appellant's offending:

1. As counsel for the State submitted, in applying the totality principle some degree of accumulation is required to reflect the overall criminality involved in the possession of the three different kinds of drugs.
2. In our view, a total effective sentence of 3 years 10 months' immediate imprisonment bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances, including those referable to the appellant personally. We would give effect to that conclusion by reducing the sentence for count 1 to 12 months' immediate imprisonment for totality, and ordering the sentence for that offence to be served cumulatively upon the sentence for count 3. The sentence for count 2 should be served concurrently.
3. The appellant should remain eligible for parole, and the new sentence backdated to 26 August 2020 to take account of time already spent in custody in respect of the offending.

1. For the above reasons, we would make the following orders in the appeal:

(3) The sentences imposed by the District Court of Western Australia on indictment GER IND 98 of 2019 are set aside and the following individual sentences of immediate imprisonment are substituted:

(4) The sentence for count 1 is to be served cumulatively upon the sentence for count 3.

(5) The sentence for count 2 is to be served concurrently with the sentence for count 3.

(6) The sentence for count 3 is taken to have commenced on 26 August 2020.

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

[1] The certificates of analysis contained slightly different weights of the drugs to those as found in the various packages. The differences in weight were not significant: see sentencing ts 153.

[6] Sentencing ts 168; appellant's criminal record.

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

[15] Gaskell v The State of Western Australia [2018] WASCA 8 [128] - [129].

[16] Lester v The State of Western Australia [2011] WASCA 128 [21] ‑ [22], see also to similar effect Day v The Queen [2001] WASCA 284; (2001) 127 A Crim R 403 [38].

[17] Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32 [22].

[19] Harvey v The State of Western Australia [2017] WASCA 149.

[21] Savory v The State of Western Australia [2018] WASCA 165.

[22] Griffin v The State of Western Australia [2020] WASCA 17.

[23] O'Hara v The Queen [2021] WASCA 123 [45].

[25] The State of Western Australia v Egeland [2018] WASCA 228; (2018) 276 A Crim R 77; Gallagher v The State of Western Australia [2019] WASCA 108; Kirkup v The State of Western Australia [2018] WASCA 102; MRSA v The State of Western Australia [2018] WASCA 217; and Tran v The State of Western Australia [2019] WASCA 50.

[26] Italiano v The State of Western Australia [2020] WASCA 115; Donaldson v The State of Western Australia [2018] WASCA 143; Donaldson v The State of Western Australia [2020] WASCA 193; Potaka v The State of Western Australia [2017] WASCA 98; Dias v The State of Western Australia [2017] WASCA 49; Dinh v The State of Western Australia [2019] WASCA 167; Greenfield v The State of Western Australia [2019] WASCA 29; Towler v The State of Western Australia [2018] WASCA 141; Hickling v The State of Western Australia [2016] WASCA 124; (2016) 260 A Crim R 33; and Maric v The State of Western Australia [2015] WASCA 190.

[27] The State of Western Australia v Charles [2016] WASCA 108; Barton v The State of Western Australia [2016] WASCA 196; The State of Western Australia v Hunter [2014] WASCA 87; Phan v The State of Western Australia [2019] WASCA 131; Doherty v The State of Western Australia [2014] WASCA 142; and Jenkin v The State of Western Australia [2014] WASCA 226.