VIDICH -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 171 (23 October 2020)

Possession of money ($21,095) reasonably suspected to have been unlawfully obtained

Possession of money ($81,650) reasonably suspected to have been unlawfully obtained

1. The appellant was convicted of the offences charged in counts 9 and 11 on his plea of guilty. He was convicted of the other offences after trial by jury.
2. The appellant now appeals against his sentences on two grounds. Ground 1 contends that the trial judge erred in sentencing the appellant on the basis that he was selling drugs on his own account. Ground 2 contends that the total effective sentence infringes the first limb of the totality principle. The application for leave to appeal on these grounds, and an application for an extension of time within which to appeal, have been referred to the hearing of the appeal.
3. For the following reasons, while an extension of time should be granted, leave to appeal should be refused and the appeal dismissed.

1. The trial judge made the following findings as to the circumstances of the appellant's offending.[1]
2. On 14 September 2017, the appellant was contacted by his cousin, Bradley Vidich. Bradley Vidich told the appellant that he had negotiated the sale of two ounces of methylamphetamine to Kurt Papp for $11,950. Bradley Vidich asked the appellant to go to Mr Papp's house in Gosnells and deliver the methylamphetamine in exchange for the cash payment.
3. The appellant met Bradley Vidich, who gave him the 55.2 g of methylamphetamine (61% purity). The appellant then drove to Mr Papp's house and gave him the drugs in exchange for $11,950 in $50 notes (count 5). Mr Papp subsequently gave the methylamphetamine to Russell Pilgrim, who in turn gave the drugs to an undercover police officer who had paid $15,000 for the drugs. Mr Papp had retained $3,050 of that $15,000 for himself. There was no evidence as to what, if anything, the appellant expected to receive from the sale to Mr Papp, and it may be that he did not expect to receive any remuneration from the sale.
4. After the appellant delivered the drugs to Mr Papp, he drove to the home of Tain Breedon in Morley. The appellant had previously sold methylamphetamine to Mr Breedon in four-ounce quantities. After the appellant arrived at Mr Breedon's unit, police forced entry to the unit and arrested the appellant in Mr Breedon's garage. At the time of his arrest, the appellant was in possession of 111 g of methylamphetamine (76% purity) which he intended to sell to Mr Breedon (count 8). $23,000 was also found in Mr Breedon's garage, under a cable stripping machine. Although the trial judge could not make a finding as to whether this money was for payment for the 111 g of methylamphetamine or was a payment for a previous sale of methylamphetamine, the latter was likely.
5. The trial judge concluded (in a finding challenged by ground 1) that the appellant was selling drugs to Mr Breedon on his own account.
6. A search of the car which the appellant drove to Mr Breedon's address located the $11,950 the appellant received from Mr Papp in the storage well of the driver's front door (count 9). In addition, $21,095 was found concealed in the dashboard of the car (count 10). A search of the appellant's unit in Forrestfield later that day found $81,650 cash in various locations (count 11).
7. The money referred to above was the proceeds of drug dealing. At the time of the offending, the appellant was, and had for some time been, in the business of commercial dealing in trafficable quantities of methylamphetamine.

1. The trial judge made the following findings as to the appellant's personal circumstances.[2]
2. The appellant was 35 or 36 years old at the date of sentencing. He was born in Western Australia. After his parents separated when the appellant was 12 years old, he lived with his father and had an ongoing relationship with his mother. He has three sisters and five brothers with whom he is close. The appellant had an uneventful upbringing in a supportive family, who remained supportive of him.
3. The appellant was in a relationship which produced five children (aged between 5 and 14 years at the date of sentencing). The relationship ended about 5 years before the date of sentence, which was difficult for the appellant.
4. The appellant completed school to year 10 and subsequently worked in various roles until the business he had worked for closed in 2015. Since then, he had been unemployed, save for casual employment at a greyhound track.
5. The appellant did not have any mental or physical health issues. At the time of the offending, the appellant was smoking methylamphetamine, but was not a daily user, and he did not use other drugs. The appellant claimed to be drug free while in prison. Although he had something of a drug habit, the motivation for the appellant's dealing in drugs was to generate income, rather than to support that habit.
6. The appellant had a prior record of convictions for traffic offences, common assault and possession of drug paraphernalia, for which he was fined. He was not remorseful for the current offending, continuing to deny the offences of which he was convicted after trial.

1. The trial judge expressed the view that the appellant's prior record was 'a largely neutral factor', in that while it could not be said that the appellant is of good character his history of offending did not indicate any additional need for personal deterrence.[3] Her Honour allowed a 5% discount under s 9AA of the Sentencing Act 1995 (WA) in respect of counts 9 and 11, to which the appellant pleaded guilty.[4]
2. The trial judge referred to the harm which dealing in methylamphetamine causes to the community, and the significance of personal and general deterrence as primary sentencing considerations. Her Honour said:[5]

The fact that I have found, beyond reasonable doubt, that you were dealing for commercial gain in trafficable quantities of methylamphetamine is an aggravating factor. You played a significant role in the distribution of the drug into the community.

1. The trial judge then referred to issues of parity with the sentences received by the appellant's co-offenders. It is unnecessary to detail those comments, given that the appellant's grounds of appeal do not allege infringement of the parity principle. Her Honour then imposed the sentences referred to in the above table.

1. By ground 1, the appellant contends that the trial judge erred when she sentenced the appellant on the basis that he was selling drugs 'on his own account'. This ground relates to the proposed sale of the 111 g of methylamphetamine to Mr Breedon, and the finding that the appellant was in the business of commercial dealing in trafficable quantities of methylamphetamine. The ground does not relate to the sale of the 55.2 g of methylamphetamine to Mr Papp, which the trial judge found was a sale by Bradley Vidich to Mr Papp in which the appellant's role was delivering the drugs to Mr Papp (without any finding the appellant would be rewarded for doing so).

Evidence as to the appellant's role in the sale to Mr Breedon

1. The following is a summary of the evidence led at trial of principal relevance to the appellant's role in the proposed sale of 111 g of methylamphetamine to Mr Breedon, and the issue of whether the appellant was conducting a drug dealing business on his own account.

1. A search of the appellant's vehicle parked outside Mr Breedon's address located the $11,950 from the transaction with Mr Papp in the storage compartment of the driver's door, which was the subject of count 9. $21,095, in bundles of $20 and $50 notes held together by elastic bands, was hidden behind the front dashboard of the vehicle, and was the subject of count 10.[6]

1. Police conducted a search of the appellant's home, a unit in a Forrestfield caravan park, on 14 September 2017. Items found at that address included:[7]

(1) The $81,650 in cash which was the subject of count 11, generally comprising $50 notes bundled together with elastic bands in various locations.

(6) Rolls of vacuum seal plastic, clip seal bags and rubber bands.

1. The 'tick lists' found at the appellant's home appeared to show the amounts of drugs delivered to and money owed by eight persons, who were identified by initials. The tick lists appeared to indicate that a person designated 'T', who the prosecution alleged to be Tain Breedon, had been supplied with three lots of 4 ounces, for $12,200, $22,400 and $22,400 respectively.[8]
2. Detective Roberts gave evidence that the above items were commonly associated with drug dealing, that methylamphetamine was commonly sold in ounces, and that the average price for an ounce of methylamphetamine in September 2017 was $7,000.[9]
3. The police search did not locate any methylamphetamine at the appellant's home.[10]

1. A search of Bradley Vidich's home in Harrisdale located about $50,000 in cash and about 1 kg of methamphetamine hidden in various locations, as well as other items associated with drug dealing.[11] In a previous search of Bradley Vidich's house, police had located and seized about $200,000 in cash.[12] There was no evidence to suggest that the appellant was residing at the Harrisdale address.[13]

1. The following Facebook messages between the appellant and Mr Breedon were found by police on Mr Breedon's phone, sent on 13 - 14 September 2017:[14]

Wednesday, 13 September 2017

Breedon: Sup yo??

Appellant: Hey bud

Breedon: Hey bro catch up in abit?

Appellant: Sorry bud nothing I can do tonight

Breedon: Ok bro too easy!!

Appellant: Sorry man, I can see u tomorrow lunch time

Breedon: Ok bro all good I understand

Thursday, 14 September 2017

Breedon: Heybro, how's ya day going?

Appellant: Hey man I'm just going to my cousins place I can pop in after that if u want

Breedon: Yeah awesome bro! Roughly?

They killing me lol

Appellant: Real rough bout an hour or 1ish

Breedon: Mmmmm ok bro

Appellant: I've got to do one quick stop

Breedon: Ok bro

Appellant: on my way to yours now

Breedon: Champion

(underlining in original)

1. The appellant's phone was seized but was locked with a passcode. The appellant gave police a code which did not work.[15] Records from the service provider showed that a phone number of Bradley Vidich unsuccessfully tried calling the appellant's phone at 11.28 am on 14 September 2017, and the appellant's phone returned the call at 11.29 am.[16]

1. The trial judge noted that the appellant was found in Mr Breedon's garage in possession of 111 g of methylamphetamine, which was one gram short of four ounces. Her Honour also referred to the evidence of Detective Roberts that one of the weights drug dealers commonly sell methylamphetamine is by an ounce, or multiples of an ounce.[17]
2. The trial judge also referred to the list which was found at the appellant's unit, which she accepted was a 'tick list' showing that the appellant had sold three quantities of 4 ounces of methylamphetamine to Mr Breedon for $22,400 (or around $5,750 an ounce).[18]
3. The trial judge inferred from Facebook communications between the appellant and Mr Breedon on 13 September 2017 that Mr Breedon wanted the appellant to supply drugs to him and that the appellant was unable to do so until after he went to see Bradley Vidich who had significant quantities of methylamphetamine.[19]
4. The trial judge made findings as to the appellant's role in the proposed sale to Mr Breedon in the following terms:[20]

Your counsel has submitted to me that you should be sentenced on the basis, essentially, that you were a trusted courier in your cousin's business, rather than engaging in dealing in your own right.

The evidence that points to you engaging and dealing in your own right is the evidence of the Facebook communications I've referred to, the quantities of cash in your possession other than the $11,950, which was from the sale of the drugs the subject of count 5, those quantities being the $81,650 found at your unit and $21,095 found hidden in the dash of your car. The tick list, I've already referred to, as well as the clipseal bags, elastic bands, small electronic scales, vacuum sealing equipment, cutting agent, in form of MSM, and glass smoking pipes found at your unit, and Detective Roberts's evidence that these items are commonly found in the possession of people who are in the business of selling illicit drugs.

The evidence that points against you being in that business on your own account is that you did not negotiate the sale of drugs to Mr Papp, although you carried out that sale for Bradley Vidich.

However, there is no evidence that Bradley Vidich had anything to do with your dealing with [Mr Breedon]. And the evidence is compelling, in my view, of your drug dealing on your own account, in addition to conducting sales for Bradley Vidich.

I consider that it is beyond reasonable doubt that you were carrying out the sale to [Mr Breedon] on your own account. However, even if you were not engaged in that sale on your own account, but having obtained supply from Mr Vidich, and possessed the 111 grams to sell on Mr Vidich's behalf, on the evidence that I have referred to, you were involved in his business well beyond that of a mere courier, as suggested by your counsel, trusted or not.

And the cash in your possession evidences that you were receiving significant reward for your involvement. In either case you were further down the distribution chain than Bradley Vidich. But I do not consider the distinction makes any significant difference in sentencing you.

In either case it is beyond reasonable doubt that on 14 September 2017 you were in the business of commercial dealing in trafficable quantities of methylamphetamine, and that this aggravates your offending.

I can make no finding as to how long you were in that business other than the items found in your home, in particular, the tick list and the money, indicates that you had been involved in that business for some time. That is, ... the dealing on 14 September 2017 was not your first involvement in the trade. (emphasis added)

1. The appellant submits that the passage quoted above is equivocal. Although the trial judge expressly found beyond reasonable doubt that the sale to Mr Breedon was on the appellant's own account, she went on to consider the position if that were not the case. This, in the appellant's submission, suggests that the trial judge must have 'entertained reasonable doubt as to her finding, or alternatively, should have entertained that doubt'.[21]
2. The appellant submits that there were a variety of factors which should have caused the trial judge to experience a reasonable doubt as to whether the appellant was engaged in the sale to Mr Breedon on his own account, including:[22]

1. The facts with respect to Count 5 supported a finding that, at least with respect to that Count, the Appellant was a courier; 2. Other evidence adduced during the trial indicated that the Appellant had, in the past, been a courier for Bradley [Vidich];

1. The locating of tick lists, whilst supportive of Her Honour's finding, could also indicate the Appellant keeping track of what he was couriering and receiving funds for; and

1. The lack of phone downloads of the Appellant's phone.
2. The appellant submits that the trial judge should not have been satisfied, beyond reasonable doubt, that the appellant was conducting a sale to Mr Breedon in his own right. The appellant also submits that there is a clear distinction between an offender conducting a sale in his or her own right and acting as a courier (or any roles in between). The appellant says that the trial judge erred in indicating that there was no distinction between the appellant conducting a sale in his own right, on the one hand, and being involved in Bradley Vidich's business, on the other hand. The appellant contends that the trial judge's error of fact materially impacted upon the sentencing disposition.[23]

1. There is no merit in the appellant's submission that the trial judge's factual finding was equivocal. In the impugned passage quoted at [34] above, the trial judge was responding to the submission advanced by the appellant's trial counsel that the appellant was no more than a trusted courier in his cousin's business. The trial judge expressly indicated that she was satisfied, beyond reasonable doubt, that the appellant was engaged in the sale to Mr Breedon on his own account. The trial judge then went on to provide an alternative answer to the submission. Her Honour indicated that, even if she was wrong in concluding that the appellant was acting on his own account, the evidence nevertheless established his involvement in Bradley Vidich's business to extend well beyond the role of a courier. There was no error in providing alternative reasons for rejecting the submission, and the fact that the judge did so does not indicate equivocation in the finding that the appellant proposed to sell the 111 g of methylamphetamine to Mr Breedon on his own account.
2. Further, there was ample evidence to support the conclusion that the appellant was conducting his own commercial drug dealing business and that Mr Breedon was a regular customer of that business. In contrast to the large number of communications between Bradley Vidich and Mr Papp, there was no evidence of any contact between Bradley Vidich and Mr Breedon. Mr Breedon's communications about the drugs he sought to purchase were made directly with the appellant. The 'tick lists' found in the appellant's residence indicated three previous sales of similar amounts of methylamphetamine to Mr Breedon, and a number of sales to seven other customers. The large sum of cash hidden behind the dashboard of the appellant's car and in the appellant's home were inconsistent with him being a mere courier. The other indicia of drug dealing found at the appellant's home indicated he was operating his own business and not merely acting as a courier for Bradley Vidich.
3. The matters referred to by the appellant do not negate the inference properly to be drawn from the evidence considered as a whole. Clearly, Bradley Vidich supplied the appellant with the 111 g of methylamphetamine proposed to be sold to Mr Breedon. It is also clear that the appellant delivered the 55.2 g of methylamphetamine to Mr Papp on Bradley Vidich's behalf. There were also two intercepted phone calls between Bradley Vidich and Mr Papp, on 30 July 2017 and 4 August 2017, in which Bradley Vidich suggests that the appellant will bring drugs to Mr Papp. However, the fact that the appellant delivered drugs sold by Bradley Vidich to Mr Papp on one or more occasions does not mean that all of his actions were undertaken on Bradley Vidich's behalf.
4. There was no evidence to the effect that the appellant's tick lists related to transactions in which he acted merely as a courier. There is no obvious reason for a courier to have maintained those records.
5. The fact there was an absence of incriminating evidence on his phone is of limited utility to the appellant, by reason that police could not access the phone. This is not a case where police have examined an accused's phone and found no incriminating material on it. Rather, it is a case where police could not access the appellant's phone because he gave them an incorrect passcode. It may be inferred that he did so because of concern about incriminating material on the phone.
6. Having reviewed the evidence before the trial judge, we agree with her Honour's conclusion that the evidence establishes, beyond reasonable doubt, that the appellant was conducting his own business (albeit a business for which Bradley Vidich was an upstream supplier), and that he proposed to sell the 111 g of methylamphetamine to Mr Breedon on his own account.
7. In our view, ground 1 is not established.

1. Ground 2 contends that the total effective sentence of 7 years 6 months' imprisonment infringes the first limb of the totality principle.

1. McLure JA (Steytler P and Miller JA agreeing) summarised the totality principle in Roffey v The State of Western Australia:[24]

The legal principles relevant to the disposition of this appeal are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law.

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.

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. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.

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. 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. (citations omitted)

1. The following general principles are also well established:[25]

(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) 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.

(3) 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.

(4) The real question is whether the total effective sentence imposed on the offender is unreasonable or plainly unjust.

1. The general principles of sentencing offenders for serious drug offences are well established.[26] 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. 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 invariably be subsidiary considerations, but they are not irrelevant.

1. The appellant does not complain about any of the individual sentences. Rather, the ground of appeal is confined to alleging a breach of the first limb of the totality principle. This presents a difficulty for the appellant, as he does not challenge the 6 year individual sentence on count 8 (relating to the drugs he intended to sell to Mr Breedon). If that sentence is commensurate with the seriousness of that individual offence, it is difficult to see how a total effective sentence which is only 18 months' longer can be characterised as unreasonable or plainly unjust.
2. In Carlucci v The State of Western Australia,[27] the court noted a range of decisions where offenders, who engaged in a commercial drug dealing business which involved dealing in ounces rather than kilograms, received sentences in the range of 5 - 7 years' imprisonment. In Carlucci itself, a total effective sentence of 8 years' imprisonment was reduced to 6 years 6 months' imprisonment on appeal. A number of subsequent decisions of this court have considered sentences, in the same range for offenders conducting similar businesses, prior to the increase in the maximum penalty for an offence against s 6(1)(a) of the Drugs Act involving 28 g or more of methylamphetamine to life imprisonment.[28]
3. Having regard to the nature of the appellant's commercial enterprise, a total effective sentence of 7 years 6 months' imprisonment may be regarded as high. However, account must be taken of the fact that the appellant pleaded not guilty to most of the offences, and showed no remorse for his conduct. The large sum of cash generated by the appellant's drug dealing business, the subject of counts 10 and 11, totalled over $102,000, indicating the revenue being generated by the appellant's business.
4. Having regard to:

(1) the maximum penalties for the offences of which the appellant was convicted;

(2) the overall criminality involved in all of the appellant's offences, viewed in their entirety having regard to all relevant circumstances (including those referable to the appellant personally);

(3) the customary sentencing practices for these kind of offences; and

(4) all relevant sentencing factors and principles;

we are satisfied that the total effective sentence of 7 years 6 months' imprisonment imposed in this case was not unreasonable or plainly unjust. Ground 2 is not established.

1. The appellant requires an extension of time within which to appeal. As the delay was short and has been adequately explained, we would grant the extension sought. However, neither ground of appeal has a reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed.
2. For the above reasons, the following orders should be made in the appeal:

(1) The time for the appellant to commence this appeal is extended to 4 December 2019.

(2) Leave to appeal on both grounds of appeal is refused.

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

Research Orderly to the Honourable Justice Mitchell

[11] Exhibits 22 and 23, primary ts 349 - 367.

[16] Exhibits 36 and 49, primary ts 591 - 600.

[21] Appellant's submissions, par 30 - 32.

[22] Appellant's submissions, par 33 - 34.

[23] Appellant's submissions, par 35 - 36.

[24] Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26].

[25] See, for example, Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[26] See, for example, Jneid v The State of Western Australia [2018] WASCA 67 [81].

[27] Carlucci v The State of Western Australia [2019] WASCA 37 [39] - [42], and see the other cases referred to at [43] - [49].

[28] See Winder v The State of Western Australia [2020] WASCA 30; North v The State of Western Australia [2020] WASCA 6. For a case where a higher sentence has been imposed for more serious offending, see Dillon v The State of Western Australia [2020] WASCA 24.