Abbott v The State of Western Australia
[2018] WASCA 45
•6 APRIL 2018
| [2018] WASCA 45 |
| JURISDICTION |
| SUPREME COURT OF WESTERN AUSTRALIA |
| TITLE OF COURT THE COURT OF APPEAL (WA) |
| CITATION CORAM |
| ABBOTT -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 45 |
| BUSS P |
| MAZZA JA |
| HEARD |
| 20 DECEMBER 2017 6 APRIL 2018 |
| DELIVERED FILE NO/S BETWEEN |
| CACR 60 of 2017 |
| DAVID MICHAEL ABBOTT |
| Appellant |
| AND |
| THE STATE OF WESTERN AUSTRALIA Respondent |
ON APPEAL FROM: |
| Jurisdiction Coram |
| : DISTRICT COURT OF WESTERN AUSTRALIA : SWEENEY DCJ |
| File Number |
| : IND 1998 of 2015 |
Catchwords: |
| Criminal law - Appeal against sentence - Appellant convicted after trial of multiple counts of dealing in prohibited drugs - Total effective sentence of 11 years' imprisonment - Totality principle - Manifest excess - Parity principle |
| Page 1 |
| [2018] WASCA 45 |
Legislation: |
| Criminal Code (WA), s 417(1) Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(c), s 34(1)(a), s 34(2)(a) |
Result: |
| Leave to appeal refused Appeal dismissed |
| Category: B Representation: Counsel: |
| Appellant |
| : In person |
| Respondent : No appearance |
Solicitors: |
| Appellant |
| : In person |
| Respondent : Director of Public Prosecutions (WA) |
Case(s) referred to in judgment(s): |
| Al-Rafei v The State of Western Australia [2017] WASCA 4 Bahn v The State of Western Australia [2008] WASCA 40 Barnden v The State of Western Australia [2014] WASCA 161 Barton v The State of Western Australia [2016] WASCA 196 Bees v The State of Western Australia [2017] WASCA 202 Benter v The State of Western Australia [2005] WASCA 245 Bond v The State of Western Australia [2011] WASCA 123 Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 Chen v The State of Western Australia [2017] WASCA 114 Chen v The State of Western Australia [2017] WASCA 99 Civello v The State of Western Australia [No 2] [2008] WASCA 163 |
| Page 2 |
| [2018] WASCA 45 |
| Cohen v The State of Western Australia [No 2] [2007] WASCA 279; (2007) 180 A Crim R 348 Colangelo v The State of Western Australia [2004] WASCA 294 Dann v The State of Western Australia [2006] WASCA 254 Dao v The State of Western Australia [2007] WASCA 237 Delovski v The Queen [2002] WASCA 88 |
| Dias v The State of Western Australia [2017] WASCA 49 Dixon v The State of Western Australia [2006] WASCA 255 Galbraith v The State of Western Australia [2011] WASCA 70 Gaskell v The State of Western Australia [2018] WASCA 8 Giglia v The State of Western Australia [2010] WASCA 9 Haasy v The State of Western Australia [2010] WASCA 207 Halmi v The State of Western Australia [2013] WASCA 229 Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522 Kobeissi v The State of Western Australia [2016] WASCA 188 Koncurat v The State of Western Australia [2010] WASCA 184 Lai v The State of Western Australia [2012] WASCA 181; (2012) 225 A Crim R 218 Lam v The State of Western Australia [2010] WASCA 61 Le v The State of Western Australia [2014] WASCA 120 Le v The State of Western Australia [2015] WASCA 73 Lynch v The State of Western Australia [2011] WASCA 243 Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55 Mather v The State of Western Australia [2017] WASCA 148 Monument v The State of Western Australia [2007] WASCA 239 Moreton v The State of Western Australia [2011] WASCA 258 My v The State of Western Australia [2018] WASCA 1 Nelis v The Queen [2000] WASCA 194 Nguyen v The State of Western Australia [2017] WASCA 35 Pham v The State of Western Australia [2011] WASCA 244 Phan v The State of Western Australia [2014] WASCA 144 Quach v The Queen [1999] WASCA 210 Roffey v The State of Western Australia [2007] WASCA 246 Sabau v The State of Western Australia [2010] WASCA 3 Separovic v The State of Western Australia [2018] WASCA 36 Stapleton v The Queen [2004] WASCA 130 Tanner v The State of Western Australia [2013] WASCA 142 Tema v The State of Western Australia [2011] WASCA 41; (2011) 206 A Crim R 104 The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 199 |
| The State of Western Australia v Charles [2016] WASCA 108 |
| Page 3 |
| [2018] WASCA 45 |
| The State of Western Australia v Littlefair [2013] WASCA 177 |
| The State of Western Australia v Toothill [2007] WASCA 236 Tran v The State of Western Australia [2016] WASCA 37 Urbano v The State of Western Australia [2006] WASCA 147 Vagh v The State of Western Australia [2007] WASCA 17 Yiu v The State of Western Australia [2016] WASCA 172 |
| Page 4 |
| [2018] WASCA 45 |
| JUDGMENT OF THE COURT |
| 1 2 |
| JUDGMENT OF THE COURT: The appellant has applied for leave to appeal against sentence. |
| On 16 December 2016, the appellant was convicted, after a trial in the District Court before Sweeney DCJ and a jury, of eight counts in an indictment. |
| 3 4 |
| Count 1 alleged that on 19 December 2014, at Wattleup, the appellant offered to sell or supply cannabis to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the MD Act). |
| Each of counts 2, 3, 4 and 5 alleged that on a specified date between 25 December 2014 and 6 January 2015, at Wattleup, the appellant offered to sell or supply methylamphetamine to another, contrary to s 6(1)(c) of the MD Act. |
| 5 6 |
| Each of counts 6 and 7 alleged that on 7 January 2015, at Wattleup, the appellant had in his possession methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act. |
| Count 8 alleged that on 7 January 2015, at Wattleup, the appellant was in possession of a thing capable of being stolen, namely a sum of money, that was reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) (the Code). |
| 7 |
| On 10 February 2017, the trial judge imposed individual sentences of immediate imprisonment as follows: |
| (a) (b) (c) (d) (e) (f) |
| count 1: 3 months; count 2: 6 months; count 3: 12 months; count 4: 2 years; count 5: 2 years; count 6: 4 years; count 7: 9 years; and count 8: 18 months. |
| (g) (h) |
| 8 |
| Her Honour ordered that the individual sentence for count 4 be served cumulatively upon the individual sentence for count 7 and that the other |
| Page 5 |
| [2018] WASCA 45 |
| JUDGMENT OF THE COURT |
| sentences be served concurrently with each other and concurrently with the sentence for count 7. The total effective sentence was therefore 11 years' imprisonment. A parole eligibility order was made. |
| 9 |
| We would refuse leave to appeal and dismiss the appeal. Our reasons are as follows. |
| The facts and circumstances of the offending |
| 10 11 |
| The facts and circumstances of the offending, as found by the trial judge in her sentencing remarks or not in dispute, were as follows. |
| In December 2014 and January 2015, police were investigating the appellant and Paul Burchardt in connection with drug dealing. As from 19 December 2014, police intercepted the appellant's telephone. At that time the appellant was in the business of dealing in illegal drugs. He dealt predominantly in methylamphetamine but also in cannabis. |
| 12 13 14 15 |
| The appellant lived in a semi-rural property in Wattleup. A number of buildings were on the property. The appellant lived in stables which had been converted to living accommodation including a bedroom. Apart from dealing in illegal drugs in his own right, the appellant permitted Mr Burchardt to attend from time to time and leave illegal drugs at the property. |
| On 20 December 2014, Mr Burchardt left a message for the appellant to |
| telephone him. |
| When the appellant responded by telephone, |
| Mr Burchardt told the appellant in effect that he had buried some drugs at a specified location on the Wattleup property. At Mr Burchardt's request, the appellant dug up and retrieved the drugs. Her Honour found that Mr Burchardt 'totally trusted' the appellant. |
| As to count 1, on 19 December 2014, an unidentified woman asked the appellant if she could obtain a stick of cannabis from him 'on tick'. The appellant agreed to supply the cannabis. However, the transaction was not completed. Her Honour found that it was clearly contemplated that payment would be made for the sale or supply of the cannabis and that the woman had previously dealt with the appellant in relation to drugs. |
| As to count 2, on 25 December 2014, the appellant received a text message from an unidentified man. The message said the man wanted |
| to purchase a 'half weight' (0.5 g) of methylamphetamine. |
| The |
| appellant agreed to sell or supply the drug. Her Honour was satisfied |
| Page 6 |
| [2018] WASCA 45 |
| JUDGMENT OF THE COURT |
| beyond reasonable doubt that 'money would be expected to change hands' in connection with the sale or supply of the drug. |
| 16 |
| As to count 3, on 29 December 2014, an unidentified man telephoned the appellant. The man said he was with a good friend and the friend was interested in purchasing a 'quart'. Her Honour found that an agreement was made for the sale by the appellant to the man of a quarter of an ounce (7 g) of methylamphetamine. Her Honour also found that the appellant had previously dealt with the man who was himself a drug dealer. |
| 17 |
| As to count 4, on 3 January 2015, an unidentified man telephoned the appellant. During the conversation the appellant offered to sell or supply half an ounce of methylamphetamine to the man for $5,250. The man told the appellant that he would let the appellant know later whether he wanted the drug. |
| 18 19 |
| As to count 5, on 6 January 2015, an unidentified woman telephoned the appellant. During the conversation the appellant offered to sell or supply half an ounce of methylamphetamine to the woman for $5,500. |
| As to counts 6 and 7, on the night of 6 January 2015, Mr Burchardt was apprehended by police. He was in possession of methylamphetamine. Mr Burchardt told the police that 'a bloke called Dave' (that is, the appellant) had possession of 'a couple of kilos of meth'. Mr Burchardt described the appellant and his living arrangements. |
| 20 |
| At 11.53 pm on 6 January 2015, the appellant's mother telephoned the appellant from the Wattleup property and told him that the police were in the backyard 'banging on things'. The appellant responded: |
| Oh shit. Fuck, I'm in trouble, mum, I can't come home. |
| 21 22 |
| Immediately after that telephone conversation, the appellant telephoned his brother, George, and asked him to ascertain what was happening at the Wattleup property. |
| At a couple of minutes past midnight, the appellant's mother telephoned the appellant and told him that the police had 'smashed everything down'. The appellant told his mother to 'let them go'. The mother asked: |
| What happens about me if there's shit under the shed? |
| Page 7 |
| [2018] WASCA 45 |
| JUDGMENT OF THE COURT |
| The appellant responded that there was nothing under the shed and that she should not say anything to the police. The appellant also told his mother that he would return home and 'put [his] hand up', but he did not want to return home immediately. |
| 23 |
| At nine minutes past midnight, the appellant telephoned the unidentified man to whom he had earlier offered to sell half an ounce of methylamphetamine, and told him that he was being 'raided' and was not at home. The man asked: |
| Are they going to find anything? The appellant responded: |
| I don't know whether they'll find it. |
| 24 25 |
| At about this time the appellant attempted unsuccessfully to contact Mr Burchardt. The appellant was unsuccessful because Mr Burchardt was in police custody and not answering his telephone. |
| At 26 minutes past midnight, the appellant told his mother that he would not be returning home, but he would 'put [his] hand up' for anything the police found. The mother asked: |
| Is there anything under that tank? The appellant responded: |
| Yes, mum, but don't think - don't talk about it. The mother asked: |
| Well, can you get hold of Paul? |
The appellant responded: |
| Don't talk about it. |
| The appellant was becoming increasingly agitated with his mother. |
| 26 |
| At 52 minutes past midnight, the appellant spoke again to his mother who was distressed. The appellant told her that the police '[could not] do nothing [sic] to her because it was all [me] no matter what'. The appellant asked his mother whether the police were going to search her house. She responded: |
| Not at the moment, no. |
| Page 8 |
| [2018] WASCA 45 |
| JUDGMENT OF THE COURT |
| The appellant asked: Where's that money? The mother responded: In my bedroom. |
| The appellant instructed his mother to tell the police she knew nothing about the money and she did not know what the appellant did. |
| 27 28 |
| At 1.08 am on 7 January 2015, the appellant told an unidentified man by telephone that he was not at home, his 'joint' had been 'raided', the police had smashed their way into his room and there was a chance the police would find something because 'there's a couple in there somewhere'. |
| The police noticed, while searching the appellant's bedroom in the converted stables, that the bed base had been interfered with and part of the base had been excised. The police located a black belted travel bag inside the bed. The bag contained eight bags of methylamphetamine. The total weight of the drugs was 68.7 g. Most of the drugs had a |
| purity ranging from 73% to 86%. |
| The value of the |
| methylamphetamine, if sold as packaged, was about $34,000. Her Honour was satisfied that the drugs came from the source of manufacture. The methylamphetamine in question was the subject of count 6. |
| 29 30 |
| Police also located in the appellant's bedroom $11,700 cash in $100 and $50 denominations. The cash was in a box that could be locked. In addition, the police found $100 in a drawer. |
| At 1.43 am on 7 January 2015, the appellant sent a text message to an unidentified man. The appellant asked the man to 'save [him] some stuff'. Her Honour said this was an obvious reference to drugs. A little while later, the appellant received a response from the man who asked whether the appellant should be using his telephone and suggesting that he obtain a telephone and a SIM card from a service station. |
| 31 |
| At 2.10 am on 7 January 2015, the appellant sent the following text message to Mr Burchardt: |
| Don't go anywhere near my place. |
| Page 9 |
| [2018] WASCA 45 |
| JUDGMENT OF THE COURT |
| 32 |
| At 2.17 am on 7 January 2015, the appellant's mother telephoned the appellant again. She told him he had to return home because the police were not going to leave until he did. The appellant replied that he was not returning home and that she should not panic. |
| 33 |
| At 2.55 am on 7 January 2015, police located a large blue plastic container buried under an unused rainwater tank on the Wattleup property. Inside the container were two bags. Inside each bag was a vacuum sealed package containing methylamphetamine. One package contained 1.05 kg of methylamphetamine with a purity of 80%. The other package contained 560 g of methylamphetamine with a purity of 78%. The total weight of the drugs was 1.61 kg. Her Honour was satisfied that the drugs came from the source of manufacture. The methylamphetamine in question was the subject of count 7. |
| 34 35 |
| Her Honour found that if the 1.61 kg had been sold in one ounce lots it was worth nearly $650,000. If the drugs had been sold in 1 g lots they would have been worth nearly $1.3 million. |
| The police intercepted telephone calls between the appellant's mother and his sister. During these conversations the mother requested the sister to collect from her a bag of money belonging to the appellant. The sister did so. Later, the mother arranged for the sister to return the bag to the Wattleup property. The bag contained two vacuum sealed packages. Inside the bags was a total of $29,950 cash. |
| 36 37 38 39 |
| The total amount seized by the police was $41,750 (being the $11,800 found in the converted stables and the $29,950 found in the fabric bag). The cash was the subject of count 8. |
| The trial judge was satisfied that the drugs located by the police in the appellant's bedroom were solely in his possession and were for the purpose of dealing commercially in methylamphetamine. |
| Her Honour accepted that at the time the appellant was using drugs, but noted that this was not mitigating. The appellant was 'certainly more than a user/dealer'. |
| The trial judge did not accept that the appellant was merely aiding Mr Burchardt in the sense of permitting him to store illegal drugs under the rainwater tank. All of the evidence at trial led to the irresistible conclusion that the appellant was dealing in drugs on a very regular basis and in amounts of half ounces and quarter ounces. |
| Page 10 |
| [2018] WASCA 45 |
| JUDGMENT OF THE COURT |
| 40 |
| The appellant was found with significant amounts of cash, two vacuum sealing machines (consistent with the appellant packaging drugs including the drugs under the rainwater tank and, also, packaging his cash) and tick lists (evidencing drug transactions in thousands of dollars). The intercepted conversations between the appellant and his mother made it 'very plain that this was the business [the appellant was] in and [his mother] knew about it'. |
| 41 42 |
| Her Honour was satisfied that the appellant knew the quantity of the methylamphetamine that was stored under the rainwater tank. That was why the appellant was devastated when his mother told him that the drugs had been found. The appellant was 'actively involved in the stashing of those drugs under that tank'. |
| The trial judge noted it was not suggested that the appellant could have afforded to purchase 1.61 kg of methylamphetamine, although 'in the drug world, of course, drugs come on tick'. Her Honour added that, in any event, possession does not equate to ownership, and it may well be that it was Mr Burchardt 'who was in a position to source such a large quantity of drugs'. However, that circumstance '[was] not particularly mitigatory', given the appellant's knowledge of and willing involvement in the storage of the drugs. |
| 43 |
| Her Honour was satisfied that the appellant and Mr Burchardt were in joint possession of the 1.61 kg of methylamphetamine as against the world. It was not possible, however, to determine the precise balance of power between the appellant and Mr Burchardt. It may well be that Mr Burchardt was the 'senior partner' who determined who the buyer of the drugs would be and for what price. The appellant's ultimate expected benefit in relation to the drugs stored under the rainwater tank may have been less than Mr Burchardt's, but her Honour was satisfied that the appellant would have acquired a benefit. |
| The appellant's personal circumstances and antecedents |
| 44 45 |
| The appellant was born on 14 August 1968. He was aged 46 at the time of the offending and was 48 when sentenced. |
| The appellant left school in year 8 at the age of 12. He commenced a five year apprenticeship as a jockey. He remained employed in the horse racing industry for many years. More recently, the appellant had worked in the hospitality industry. In 2010 he owned a petrol station. Since 2015 he has not had any form of legitimate employment. |
| Page 11 |
| [2018] WASCA 45 |
| JUDGMENT OF THE COURT |
| 46 47 |
| The appellant was raised in a loving and supportive family. He has had two serious relationships. Currently, he is single and has no children. |
| The appellant used illicit drugs before his father died in 2014. After his father's death, the appellant's illicit drug use increased. |
| 48 49 |
| Since 2015 the appellant has been in receipt of Centrelink benefits. |
| The appellant has a prior criminal record. He has previous convictions for possessing prohibited drugs, possessing a smoking utensil used for smoking prohibited drugs, cultivating a prohibited plant, possessing controlled or prohibited weapons, going armed so as to cause fear, escaping from legal custody, resisting arrest and a number of traffic offences. Her Honour found that the appellant was not of prior good character. |
| 50 |
| The trial judge accepted that the appellant was remorseful 'in terms of the way [he had] treated [his] family'. However, there was no indication of more general remorse. The appellant's defence at his trial was spurious. Defence counsel had 'some difficulty keeping up with [the appellant's] changing version of events during the trial'. |
| 51 52 |
| The author of a pre-sentence report said the appellant needed to address his illicit drug use, negative peer associations, lack of positive pro-social activity (such as employment) and pro-criminal attitude. |
| Her Honour said that the appellant had 'a taste for illicit drugs for quite some time, [his] drug habit increased … [he] formed an association with Burchardt which was to [their] mutual benefit … and which enabled [the appellant] to earn an income without the need to work, and … [the appellant was] able to access significant quantities of very high quality drugs for [his] customers'. |
| The grounds of appeal |
| 53 54 |
| The appellant relies on four grounds of appeal. The grounds read: |
| 1. |
| The sentence imposed was manifestly excessive compared to |
| sentences imposed on other persons for similar offences and circumstances. |
| Page 12 |
| [2018] WASCA 45 |
| JUDGMENT OF THE COURT |
| 2. |
| That the learned judge did not take into account the sentence received by a co-offender, Paul Raymond BURKHARDT, in relation to parity in sentencing. |
| 3. |
| That the learned judge did not consider when sentencing, to allow Count 4 to run [concurrently] with Count 7, due the nature, similarity, when the offending occurred and charges were laid. |
| 4. |
| That the learned judge may have been unaware of mitigating circumstances, that may have affected the sentence imposed on the appellant. |
| The merits of ground 1 |
| 55 |
| It is apparent from the appellant's written and oral submissions that the |
| substance of his complaint in ground 1 is that the total effective sentence of 11 years' imprisonment infringed the first limb of the totality principle. We will, however, also consider whether the sentence of 4 years' imprisonment for count 6 or the sentence of 9 years' imprisonment for count 7 was manifestly excessive. |
| 56 |
| The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear 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 a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases. |
| 57 |
| The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the |
| individual sentences. See Roffey v The State of Western Australia. |
| 1 |
| Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the |
| totality principle. See Giglia v The State of Western Australia; Gaskell v The State of Western Australia. |
| 2 |
| 3 |
| 1 |
| Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P and Miller JA |
| agreeing). |
| 2 |
| Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA |
| agreeing). |
| Page 13 |
| [2018] WASCA 45 |
| JUDGMENT OF THE COURT |
| 58 |
| A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender. |
| 59 |
| At the material time, the maximum penalty for: |
| (a) (b) |
| the offence of offering to sell or supply cannabis to another, contrary to s 6(1)(c) of the MD Act, was 10 years' imprisonment or a fine of $20,000 or both (s 34(2)(a) of the MD Act); |
| the offence of offering to sell or supply methylamphetamine to another, contrary to s 6(1)(c) of the MD Act, was 25 years' imprisonment or a fine of $100,000 or both (s 34(1)(a) of the MD Act); |
| (c) (d) |
| the offence of possession of methylamphetamine with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, was 25 years' imprisonment or a fine of $100,000 or both (s 34(1)(a) of the MD Act); and |
| the offence of possessing a thing capable of being stolen, that is reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Code, was 7 years' imprisonment. |
| 60 |
| 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 almost always be subsidiary considerations, but they are not completely irrelevant. |
| 3 |
| Gaskell v The State of Western Australia [2018] WASCA 8 [54] - [59] (Buss P), [151] (Mazza & |
| Beech JJA). |
| Page 14 |
| [2018] WASCA 45 |
| JUDGMENT OF THE COURT |
| 61 |
| When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. |
| 62 |
| We have considered numerous prior cases of offending against s 6(1) of the MD Act which have at least some features comparable to the |
| appellant's offending on count 6. See Nelis v The Queen; The Queen; Colangelo v The State of Western Australia; The State of Western Australia; Dixon v The State of Western Australia; Vagh v The State of Western Australia; Borbil v The State of Western Australia; Bosworth v The State of Western Australia; Dao v The State of Western Australia; Cohen v The State of Western Australia [No 2]; The State of Western Australia v Atherton; Lam v The State of Western Australia; Haasy v The State of Western Australia; Lynch v The State of Western Australia; Moreton v The State of Western Australia; The State of Western Australia v Littlefair; Le v The State of Western Australia; Tran v |
| 4 |
| Marker v |
| 5 |
| 6 |
| Dann v |
| 7 |
| 8 |
| 9 |
| 10 |
| 11 |
| 12 |
| 13 |
| 14 |
| 15 |
| 16 |
| 17 |
| 18 |
| 19 |
| 20 |
| 4 5 6 7 8 9 |
| Nelis v The Queen [2000] WASCA 194. |
| Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55. Colangelo v The State of Western Australia [2004] WASCA 294. Dann v The State of Western Australia [2006] WASCA 254. Dixon v The State of Western Australia [2006] WASCA 255. Vagh v The State of Western Australia [2007] WASCA 17. |
| 10 11 12 13 14 15 16 17 18 19 20 |
| Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152. Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49. Dao v The State of Western Australia [2007] WASCA 237. Cohen v The State of Western Australia [No 2] [2007] WASCA 279; (2007) 180 A Crim R 348. The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 199. Lam v The State of Western Australia [2010] WASCA 61. 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. The State of Western Australia v Littlefair [2013] WASCA 177. Le v The State of Western Australia [2014] WASCA 120. |
| Page 15 |
| [2018] WASCA 45 |
| JUDGMENT OF THE COURT |
| The State of Western Australia; Australia; |
| 21 |
| Barton v The State of Western |
| 22 |
| and the cases reviewed in those decisions. |
| 63 |
| We have also considered numerous prior cases of offending against s 6(1) of the MD Act which have at least some features comparable to |
| the appellant's offending on count 7. See Quach v The Queen; Delovski v The Queen; Kezkiropoulos v The Queen; Stapleton v The Queen; Benter v The State of Western Australia; Urbano v The State of Western Australia; The State of Western Australia v Toothill; Monument v The State of Western Australia; Bahn v The State of Western Australia; Civello v The State of Western Australia [No 2]; Sabau v The State of Western Australia; Koncurat v The State of Western Australia; Tema v The State of Western Australia; Galbraith v The State of Western Australia; Bond v The State of Western Australia; Pham v The State of Western Australia; Lai v The State of Western Australia; Tanner v The State of Western Australia; Halmi v The State of Western Australia; Phan v The State of Western Australia; Le v The State of Western Australia; Yiu v The State of Western Australia; Kobeissi v The State of Western Australia; Al-Rafei v The State of Western Australia; Nguyen v The State of Western Australia; Chen v The State of Western Australia; Chen v The State of Western Australia; |
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| Mather |
| 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 |
| Tran v The State of Western Australia [2016] WASCA 37. Barton v The State of Western Australia [2016] WASCA 196. Quach v The Queen [1999] WASCA 210. Delovski v The Queen [2002] WASCA 88. Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522. Stapleton v The Queen [2004] WASCA 130. |
| Benter v The State of Western Australia [2005] WASCA 245. Urbano v The State of Western Australia [2006] WASCA 147. Galbraith v The State of Western Australia [2011] WASCA 70. Bond v The State of Western Australia [2011] WASCA 123. |
| Page 16 |
| [2018] WASCA 45 |
| JUDGMENT OF THE COURT |
| v The State of Western Australia; Australia; cases reviewed in those decisions. |
| 50 |
| Bees v The State of Western |
| 51 |
| Separovic v The State of Western Australia; and the 52 |
| 64 |
| As to count 8 and the offending against s 417(1) of the Code, there are no directly comparable cases decided by this court or its predecessor. However, some guidance can be discerned from Gaskell; My v The |
| State of Western Australia; Dias v The State of Western Australia; 53 54 Barton; and The State of Western Australia v Charles. |
| 55 |
| 65 66 |
| Further, we have considered other cases cited by the appellant. |
| It is unnecessary to reproduce the facts and circumstances of the prior cases we have considered or the sentencing outcomes. There are some comparable features between some of the prior cases, on the one hand, and the present case, on the other, but there are also distinguishing features. |
| 67 68 |
| In the present case, we are satisfied that it was necessary, in order properly to mark the seriousness of the appellant's overall offending, for the individual sentences imposed on each of counts 4 and 7 to be served cumulatively. Counts 4 and 7 involved separate and distinct offending. |
| In our opinion, after taking into account: |
| (a) (b) |
| the maximum penalty for each count; |
| the very serious nature of the offending, viewed as a whole, including the unchallenged aggravating factor that the appellant was dealing commercially in methylamphetamine; |
| (c) (d) |
| the total effective sentences imposed in previous cases with at least some features comparable to the appellant's overall offending; |
| the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind; |
| 49 50 51 52 53 54 55 |
| Chen v The State of Western Australia [2017] WASCA 114. Mather v The State of Western Australia [2017] WASCA 148. Bees v The State of Western Australia [2017] WASCA 202. Separovic v The State of Western Australia [2018] WASCA 36. My v The State of Western Australia [2018] WASCA 1. Dias v The State of Western Australia [2017] WASCA 49. The State of Western Australia v Charles [2016] WASCA 108. |
| Page 17 |
| [2018] WASCA 45 |
| JUDGMENT OF THE COURT |
| (e) (f) (g) |
| the appellant's personal circumstances; the mitigating factors referred to by the trial judge; and all other relevant sentencing considerations, |
| the total effective sentence of 11 years' imprisonment was not unreasonable or plainly unjust. |
| 69 |
| The total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the appellant personally, and the total effective sentences imposed in reasonably comparable cases. |
| 70 71 |
| It is not reasonably arguable that error by her Honour in the exercise of her discretion should be inferred, based on the first limb of the totality principle, from the sentencing outcome. |
| Finally, we note for completeness that, in our opinion, none of the individual sentences of imprisonment imposed on the appellant is manifestly excessive. That is, after taking into account the maximum penalty for each offence; the degree of seriousness of each offence; the objective facts and circumstances of each offence; the standards of |
| sentencing |
| customarily |
| observed; |
| the |
| appellant's |
| personal |
| circumstances; all mitigating factors; and all other relevant sentencing considerations, we are satisfied that none of the individual sentences was unreasonable or plainly unjust. |
| 72 |
| Ground 1 is without merit. |
| The merits of ground 2 |
| 73 |
| Ground 2 alleges in essence that, having regard to the sentences |
| imposed on Mr Burchardt, the trial judge erred in the application of the parity principle. |
| 74 |
| In Barnden v The State of Western Australia,56 |
| Buss JA summarised |
| (Martin CJ & Mazza JA agreeing) the parity principle. unnecessary to repeat that summary. |
| It is |
| 56 |
| Barnden v The State of Western Australia [2014] WASCA 161 [55] - [59]. |
| Page 18 |
| [2018] WASCA 45 |
| JUDGMENT OF THE COURT |
| 75 |
| In the present case, the appellant was not jointly charged with Mr Burchardt in relation to any of the counts on which the appellant was convicted. |
| 76 |
| Initially, Mr Burchardt was charged by police with joint possession of the methylamphetamine the subject of count 7 (that is, the 1.61 kg of methylamphetamine stored under the rainwater tank on the Wattleup property). However, after consideration of the admissible evidence, the State discontinued that charge against Mr Burchardt. |
| 77 78 79 |
| Mr Burchardt was charged and convicted upon his pleas of guilty of one count of possession of methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, and one count of possession of a thing capable of being stolen, namely a sum of money, that was reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Code. Those offences were committed on 6 January 2015. Mr Burchardt was stopped by police in Barrack Street, Perth. He was pulling a wheeled suitcase. The police arrested Mr Burchardt. Later, his suitcase was searched. During the search the police located 108.7 g of methylamphetamine and $4,925.05 cash. The drug and the cash were the subject of the charges to which Mr Burchardt pleaded guilty. |
| In our opinion, it is not reasonably arguable that, in the circumstances, the parity principle applied as between the appellant, on the one hand, and Mr Burchardt, on the other, in relation to the offences for which each of them was convicted and sentenced. The appellant and Mr Burchardt were not co-offenders. There was no evidence before the trial judge and there is no evidence before this court that the offences of which the appellant was convicted and the offences of which Mr Burchardt was convicted related to their participation in a common criminal enterprise. In any event, the overall seriousness of the offences of which the appellant was convicted was significantly greater than the overall seriousness of the offences of which Mr Burchardt was convicted. |
| Ground 2 is without merit. |
| The merits of ground 3 |
| 80 |
| Ground 3 appears to allege that the trial judge infringed the one |
| transaction rule in deciding to order that the individual sentences for counts 4 and 7 be served cumulatively. |
| Page 19 |
| [2018] WASCA 45 |
| JUDGMENT OF THE COURT |
| 81 |
| It is well established that the one transaction rule is merely a rule of thumb to the effect that concurrent sentences may well be imposed in respect of multiple offences that occur in a continuing episode of offending. However, wholly concurrent or even partly concurrent sentences may not reflect the overall criminality of the offending and, accordingly, may not be appropriate. |
| 82 83 |
| As we have mentioned, we are of the opinion that counts 4 and 7 involved separate and distinct offending and that it was necessary, in order properly to mark the seriousness of the appellant's overall offending, for the individual sentences on those counts to be served cumulatively. |
| Ground 3 is without merit. |
| The merits of ground 4 |
| 84 85 86 |
| Ground 4 asserts that the trial judge 'may have been unaware of mitigating circumstances, that may have affected the sentence imposed on the appellant'. |
| We are satisfied that, on the material before this court, it is not reasonably arguable that her Honour was unaware of any relevant mitigating factors. |
| In our opinion, on the material before the trial judge and the material before this court, it is not reasonably arguable that the appellant should have received any different individual sentences or a different total effective sentence, having regard to all the facts and circumstances of the case, all aggravating and mitigating factors and all relevant sentencing principles. |
| 87 |
| Ground 4 is without merit. |
| Conclusion |
| 88 |
| None of the grounds of appeal has a reasonable prospect of success. |
| Leave to appeal should be refused. The appeal must be dismissed. |
| I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. |
| DR |
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| [2018] WASCA 45 |
| JUDGMENT OF THE COURT |
| RESEARCH ASSOCIATE TO BUSS P 6 APRIL 2018 |
| Page 21 |
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