Anm v The State of Western Australia - [2019] WASCA 155

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ANM -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 155
CORAM:   MAZZA JA
MITCHELL JA

HEARD:   19 SEPTEMBER 2019 & 2 OCTOBER 2019
DELIVERED          :   2 OCTOBER 2019
PUBLISHED           :   8 OCTOBER 2019
FILE NO/S:   CACR 80 of 2019
BETWEEN:   ANM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BIRMINGHAM DCJ
File Number             :   IND X of 2018

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted of possession of methylamphetamine and diphenidine with intent to sell or supply - Offences committed while on conditionally suspended imprisonment order for similar offending - Whether individual sentences manifestly excessive - Whether total effective sentence of 5 years 8 months' imprisonment infringed the first limb of the totality principle

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Sentencing Act 1995 (WA), s 9AA, s 84F

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Carlucci v The State of Western Australia [2019] WASCA 37
Clarke v The State of Western Australia [2018] WASCA 190
EDU v The State of Western Australia [2019] WASCA 55
Hollingsworth v The State of Western Australia [2018] WASCA 47
Moreton v The State of Western Australia [2011] WASCA 258
Oziewicz v The State of Western Australia [2018] WASCA 81
Phan v The State of Western Australia [2019] WASCA 131
Salkilld v The State of Western Australia [2017] WASCA 168
Slade v The State of Western Australia [2019] WASCA 65

REASONS OF THE COURT:

On 2 October 2019, this court made the following orders:
1.Leave to appeal is refused.
2.The appeal is dismissed.
The court said it would publish its reasons at a later date. These are our reasons.
The appellant was charged in the District Court on IND X of 2018 with four offences. Counts 1 and 2 alleged that on 16 June 2017, he had in his possession a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA). The prohibited drugs were, on count 1, methylamphetamine, and on count 2, diphenidine. Count 3 alleged that on the same date and at the same place, the appellant was in possession of $5,205 in money which was then reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Criminal Code. Count 4 alleged that on 6 January 2018, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. On 9 November 2018, the appellant was convicted on his pleas of guilty of these charges.
As a consequence of these convictions, the appellant breached a conditionally suspended imprisonment order imposed by Stewart DCJ on 25 January 2017 for an offence of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. Her Honour sentenced the appellant to 12 months' imprisonment suspended for 12 months on conditions (the CSIO). The convictions on IND X of 2018 also breached a suspended imprisonment order imposed by the Perth Magistrates Court on 23 February 2017 with respect to a variety of offences, including a further offence of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.[1]
[1] The suspended imprisonment order imposed in the Magistrates Court was 6 months' imprisonment suspended for 12 months.
On 10 May 2019, the appellant appeared in the District Court before Birmingham DCJ to be sentenced for the offences in IND X of 2018 and for the breach of the CSIO made by Stewart DCJ.[2] In respect of the offences in IND X of 2018, the appellant was sentenced as follows:
Count 1: 3 years' immediate imprisonment
Count 2: 1 year's immediate imprisonment
Count 3: 1 year and 6 months' immediate imprisonment
Count 4:2 years' immediate imprisonment
[2] His Honour did not deal with the breach of the suspended imprisonment order made in the Magistrates Court. That was a matter for the Magistrates Court.
In respect of the offence the subject of the CSIO imposed by Stewart DCJ, his Honour ordered the appellant to serve 8 months' immediate imprisonment.
Birmingham DCJ ordered that the sentences on counts 1 and 4, and the sentence imposed as a consequence of the breach of the CSIO, be served cumulatively and the sentences on counts 2 and 3 be served concurrently with count 1. Thus, the total effective sentence imposed upon the appellant was 5 years 8 months' immediate imprisonment. His Honour ordered that the appellant be eligible for parole and that the sentence be backdated to commence on 12 December 2017.[3]
[3] ts 65.
The appellant, who was self‑represented, advanced one ground of appeal which, in substance, alleged that the individual sentences were manifestly excessive and that the total effective sentence infringed the first limb of the totality principle.

The facts

The sentencing judge incorporated into his sentencing remarks the outline of facts read to him by the State prosecutor.[4] Those facts were admitted by defence counsel.[5] They may be summarised in this way.
[4] ts 54.
[5] ts 36.
On 16 June 2017, at about 7.05 am, police officers executed a search warrant at the appellant's home. A search of the premises found numerous clipseal bags containing a crystal substance in several locations in the house. Later chemical analysis determined that these bags contained methylamphetamine with a total weight of 24.69 g[6] with a purity of between 66 and 79%.[7]
[6] ts 32 - 33.
[7] ts 55.
The investigating officers also found several clipseal bags containing a total of 43 tablets and fragments. Later chemical analysis determined the tablets to be diphenidine, with a total weight of 6.77 g.[8] Also found in the house was a total of $5,205 in Australian currency, numerous empty clipseal bags and a clipseal bag containing 7.74 g of salt.[9] The $5,205 was the proceeds of sales of prohibited drugs.[10]
[8] ts 33.
[9] ts 33.
[10] ts 53.
The appellant was arrested and charged with offences which reflect counts 1, 2 and 3 in the indictment. He was released on bail.[11]
[11] ts 34.
While on bail (and also in breach of the suspended imprisonment orders), in the early hours of 6 January 2018, police officers observed the appellant at a carpark at the Crown Casino. As police officers tried to speak with him, he walked away, dropped a small tin out of his hand and kicked it under a nearby vehicle in an attempt to conceal the object from the police. The investigating officers recovered the tin from underneath the vehicle and found that it contained three clipseal bags. The larger bag contained 11.5 g of methylamphetamine with a purity of 82%. One of the smaller clipseal bags contained 0.03 g of methylamphetamine. Thus, the total amount of methylamphetamine contained in the tin was 11.53 g.[12]
[12] ts 33.
In respect of the offence the subject of the CSIO, late in the afternoon of 26 January 2016, the appellant was driving a motor vehicle on a road in a northern suburb of Perth. He was stopped by police for a traffic matter. Due to his behaviour, the appellant's vehicle was searched, during which he admitted that he had a quantity of methylamphetamine in his bag. The bag was searched and five clipseal bags containing a total of 7.06 g of methylamphetamine were discovered, along with scales, a quantity of cash and some empty clipseal bags.[13]
[13] ts 33.

The appellant's personal circumstances

The appellant was born in Western Australia and was 34 years of age at the time of sentencing.[14] After leaving school, he completed a mechanical apprenticeship. However, his working life has been in arboriculture. Up until his incarceration on 10 May 2019, he successfully ran his own tree‑lopping business.[15]
[14] ts 55.
[15] ts 56.
The appellant began drinking alcohol from the age of 14 years. His alcohol use increased to the point where, as the result of drink‑driving offences, he lost his driver's licence. In 2015, he began using methylamphetamine to the point where he described himself as a 'fully functional addict', that is, he was able to work and run his tree‑lopping business while heavily using the drug.[16]
[16] ts 56.
After his arrest for the offence originally dealt with by Stewart DCJ, he remained abstinent from methylamphetamine for a period of approximately 15 months, 11 months of which was spent on the Drug Court regime. However, by the time he committed the offences the subject of IND X of 2018, he was once again using methylamphetamine. The appellant attributed his addiction to methylamphetamine as a coping mechanism to deal with a number of personal traumas which were set out in the materials before Birmingham DCJ and which do not require repetition.[17]
[17] ts 56 - 57.
The appellant has a criminal history. Apart from the convictions we have already referred to, the appellant has been convicted on multiple occasions of drink driving, driving whilst disqualified and possession of prohibited drugs.[18]
[18] ts 59.
Testing undertaken by a clinical psychologist revealed significant elevations on the Severe Personality Pathology Scales, namely Depressive, Dependent and Antisocial Scales. He does not have any formal psychiatric condition.[19]
[19] ts 56.
The appellant is supported by family and friends who provided positive written character references to Birmingham DCJ.
The appellant wishes to undertake drug rehabilitation treatment upon his release from prison.[20]
[20] ts 58.

The sentencing remarks

His Honour observed that an aggravating feature of the appellant's offending is that it was committed while subject to suspended imprisonment orders. Count 4 on the indictment was also committed while the appellant was on bail.[21]
[21] ts 54 - 55, 60.
In respect of count 1, Birmingham DCJ noted that the quantity of methylamphetamine involved was significant and it was of a relatively high purity.[22] His Honour also noted that the appellant's drug dealing, while motivated to enable him to purchase drugs for his own use, was nevertheless commercial in nature.[23]
[22] ts 55.
[23] ts 57.
His Honour observed that the appellant's criminal history showed an attitude of disobedience towards the law.[24] The most significant mitigating factor found by his Honour was the appellant's pleas of guilty. By reason of the pleas, his Honour gave a discount, pursuant to s 9AA of the Sentencing Act 1995 (WA), of 20%. The sentencing judge accepted that the pleas of guilty indicated some insight and remorse for his offending.[25] His Honour also took into account as a mitigating factor the appellant's efforts towards rehabilitation.[26] In addition, his Honour had regard to the matters set out in the confidential schedule to these reasons. The schedule is the subject of a confidentiality order. It will not be published except to the appellant and the State, and, in the case of the State, its legal representative.
[24] ts 59.
[25] ts 60.
[26] ts 61.
His Honour referred to the well‑known principles applicable (described later in these reasons) to the sentencing of offenders who deal with dangerous drugs such as methylamphetamine. He correctly identified personal and general deterrence as the most significant sentencing considerations, and that an offender's personal circumstances carried less weight.[27]
[27] ts 61.
After announcing the individual sentences for the offences contained in IND X of 2018 and for the breach of the CSIO, his Honour expressly had regard to the totality principle and made orders for concurrency and cumulacy which were designed to accommodate this sentencing principle.[28]
[28] ts 63 - 64.

Disposition

The well‑established principles which apply to appeals against sentence which, as in the present case, rely on implied error, were described in Salkilld v The State of Western Australia.[29] We adopt what was said in that case without repeating it.
[29] Salkilld v The State of Western Australia [2017] WASCA 168 [48].
As his Honour said in his sentencing remarks, the major sentencing consideration for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence.[30] 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.[31] Other matters to be taken into account include the nature and level of the offender's participation in drug dealing, within the particular organisation or generally, and whether the offending was committed for commercial gain. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.[32]
[30] ts 54.
[31] ts 62.
[32] Phan v The State of Western Australia [2019] WASCA 131 [143].
None of the individual sentences imposed by Birmingham DCJ could reasonably be said to have been manifestly excessive. In respect of counts 1, 2 and 4, the maximum penalty is 25 years' imprisonment and/or a fine of $100,000. The maximum penalty for count 3 is 7 years' imprisonment.
The appellant was engaged in selling dangerous prohibited drugs to fund his own drug use and, as such, his motive was commercial in nature. The quantity of methylamphetamine the subject of count 1 was reasonably significant and its purity was reasonably high.
In his written submissions, and apparently to show that the individual sentences for the drug offences were manifestly excessive, the appellant referred to a number of cases said to be comparable, such as Moreton v The State of Western Australia;[33] Hollingsworth v The State of Western Australia;[34] Oziewicz v The State of Western Australia;[35] Clarke v The State of Western Australia;[36] EDU v The State of Western Australia[37] and Slade v The State of Western Australia.[38] It is unnecessary to set out the facts and circumstances of these cases. Insofar as the cases are of assistance in determining whether the sentences on counts 1, 2 and 4 were manifestly excessive, they do not assist the appellant. In fact, they demonstrate that the individual sentences that were imposed upon him were broadly consistent with sentences imposed in other cases.
[33] Moreton v The State of Western Australia [2011] WASCA 258.
[34] Hollingsworth v The State of Western Australia [2018] WASCA 47.
[35] Oziewicz v The State of Western Australia [2018] WASCA 81.
[36] Clarke v The State of Western Australia [2018] WASCA 190.
[37] EDU v The State of Western Australia [2019] WASCA 55.
[38] Slade v The State of Western Australia [2019] WASCA 65.
The appellant's personal circumstances were not significantly mitigating. The appellant was not young and it could not be said that he was a person of prior good character. While he has family and community support and wishes to undertake further drug rehabilitation upon his release from prison, these factors are of less significance, having regard to the primary sentencing considerations of personal and general deterrence.
Personal deterrence was a significant factor, having regard to the appellant's prior history of drug offending.
With respect to count 3 on the indictment, the sum of $5,205 was a reasonably substantial sum of money which was derived from drug dealing.
A significant aggravating feature was that counts 1, 2 and 4 were committed in breach of not one, but two suspended imprisonment orders, and the appellant committed count 4 while he was on bail for similar offending.[39]
[39] Carlucci v The State of Western Australia [2019] WASCA 37 [50].
Birmingham DCJ was required to deal with the appellant for the breach of the CSIO by re‑offending, pursuant to the terms of s 84F of the Sentencing Act. His Honour's decision to order the appellant to serve 8 months of the 12‑month term of imprisonment that was initially suspended by Stewart DCJ can hardly be seen to be erroneous, having regard to the fact that the appellant breached the order by further drug offending only six months after the CSIO had been imposed. We note that his Honour did not require the appellant to serve all of the term of imprisonment initially imposed by Stewart DCJ.
We are not persuaded that any of the individual sentences imposed upon the appellant were manifestly excessive. Having regard to all of the relevant circumstances, including the pleas of guilty, the matters contained in the confidential schedule and the mitigating factors identified by Birmingham DCJ, it cannot reasonably be said that any of the sentences were unreasonable or plainly unjust. Implied error has not been established.
We now turn to the question of whether the total effective sentence infringed the totality principle. We will not repeat what we have already said about the circumstances of the offences, the appellant's personal circumstances and the aggravating and mitigating circumstances. Some accumulation of the individual sentences was required in order to reflect that the appellant's offending was not isolated. In other words, the appellant possessed prohibited drugs on a number of occasions over a reasonably extended period of time, with an intention to sell or supply them to others. Further, his offending was persistent and committed, as we have already said, in the face of two suspended imprisonment orders and, in the case of count 4 in IND X of 2018, while he was on bail for similar offending. Moreover, a cumulative sentence was required in respect of the offence the subject of the CSIO which he breached.
In our opinion, the total effective sentence of 5 years 8 months' imprisonment properly reflected the appellant's overall criminality, having regard to all of the circumstances, including those referable to the appellant personally. We have arrived at this conclusion cognisant of the mitigating factors, including the appellant's pleas of guilty and the matters in the confidential schedule. The total effective sentence was not unreasonable or plainly unjust.

Conclusion and orders

For the preceding reasons, the proposed ground of appeal has no reasonable prospect of succeeding. Accordingly, leave to appeal was refused, with the consequence that the appeal was dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DT
Associate to the Honourable Justice Mazza
8 OCTOBER 2019