Baghdadi v The State of Western Australia
[2011] WASCA 38
•17 FEBRUARY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BAGHDADI -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 38
CORAM: McLURE P
MAZZA J
HEARD: 21 DECEMBER 2010
DELIVERED : 17 FEBRUARY 2011
FILE NO/S: CACR 149 of 2010
BETWEEN: MOHAMMAD BAGHDADI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :BIRMINGHAM DCJ
File No :IND 76 of 2010
Catchwords:
Criminal law - Appeal against sentence - Possession with intent to sell or supply - Whether sentence manifestly excessive - Fasttrack plea of guilty
Legislation:
Criminal Appeals Act 2004 (WA), s 27(1), s 27(2)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr D P Moen
Respondent: No appearance
Solicitors:
Appellant: Andrew Maughan & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bosworth v The State of Western Australia [2007] WASCA 144
Chan v R (1989) 38 A Crim R 337
Colangelo v The State of Western Australia [2004] WASCA 294
Fullgrabe v The State of Western Australia [2006] WASCA 138
R v Bellissimo (1996) 84 A Crim R 465
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Schlenka v The State of Western Australia [2004] WASCA 142
The State of Western Australia v Andela [2006] WASCA 77
The State of Western Australia v Marchese [2006] WASCA 153
Trompler v The State of Western Australia [2008] WASCA 265
Vagh v The State of Western Australia [2007] WASCA 17
McLURE P: I agree with Mazza J.
MAZZA J: This is an application for leave to appeal against sentence. Leave to appeal is required on each ground of appeal: s 27(1) of the Criminal Appeals Act 2004 (WA). The court must not grant leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding: s 27(2) of the Criminal Appeals Act. To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
On 9 September 2010, the appellant entered a fast‑track plea of guilty, before Birmingham DCJ in the District Court of Western Australia, to one count of possession of methylamphetamine with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). This offence carries a maximum penalty of 25 years' imprisonment and/or a fine of $100,000.
On 13 September 2010, the appellant was sentenced to 2 years and 3 months' immediate imprisonment and was made eligible for release on parole. His Honour ordered that the sentence be served concurrently with a sentence that the appellant was already serving for other offences (13/9/10, ts 101).
Background
At about 12.15 pm on 21 April 2010, detectives executed a search warrant at the appellant's residence in Girrawheen. During the search, the police discovered a powdered substance in a glass tray on top of a microwave situated in the kitchen. This substance was seized and later analysed, and found to be 15.78 g of methylamphetamine with a purity of 9%.
The methylamphetamine was described as 'bong water residue'. In other words, it was residue material which the appellant had recovered from the evaporated water used in a smoking implement known as a bong.
In addition to this quantity of methylamphetamine, the police also found 2.6 g of methylamphetamine of 32% purity, a total of 95.3 g of a cutting agent, a large quantity of unused small clipseal bags, four sets of digital scales (of which two sets belonged to the appellant) with traces of methylamphetamine on their surfaces, pieces of paper on which figures were written, and a sawn‑off 12‑gauge shotgun concealed in an air
cylinder or scuba tank, a .22 calibre bolt‑action rifle which was found in a roof cavity in a rear shed, and a crossbow. At the time of committing this offence, the appellant was on bail for a number of matters, including a charge of attempting to possess methylamphetamine with intent to sell or supply.
Appellant's antecedents
The appellant was, at the time he was sentenced, 43 years of age. He had prior convictions for possession of prohibited drugs, firearms offences and various offences of dishonesty. He had never before been sentenced to a term of imprisonment. He had a history of substance abuse commencing at the age of 20, not long after which he commenced using amphetamines. He had in the past been in long‑term employment, but in more recent times, leading up to his imprisonment, had become a carer for his invalid father, who is partially paralysed as a result of a stroke, and his aged mother.
The sentencing proceedings
On 9 September 2010, immediately after the appellant entered his plea of guilty, the State prosecutor, after tendering the papers comprising the State brief, along with a copy of the videotaped record of interview between the police and the appellant, and other exhibits, read a statement of material facts which referred to the factual matters I have already mentioned.
Defence counsel submitted that the methylamphetamine was predominantly for the appellant's personal use, but it was accepted that the appellant would have supplied some of the drugs to his friends (9/9/10, ts 48). It was also said, on behalf of the appellant, that he had no association with the drug subculture and that 'the items located were used for the weighing of his personal drugs and the packaging of his personal drugs to at least dictate [sic] as to what amounts he could take' (9/9/10, ts 53).
It is clear from the dialogue between the sentencing judge and defence counsel, that his Honour did not accept the submissions of defence counsel concerning the use to which the methylamphetamine would be put, and the appellant's involvement in the drug subculture.
In his sentencing remarks, his Honour said, at ts 92:
I do not accept your explanation that it [the 15.78 grams of methylamphetamine] was supplied - it was to be supplied to friends and used for personal use, and that you're not involved in [the] drug subculture, as your counsel put it.
His Honour went on to say, at ts 93:
In the circumstances, I am satisfied, beyond reasonable doubt, that this offence was part of a broader commercial enterprise, and that your possession of the - and that you possessed the substance with the intent to distribute it commercially.
In support of that finding, his Honour relied on the following facts:
1.The quantity and the purity of the methylamphetamine.
2.The presence and purity of the 2.6 g of methylamphetamine.
3.The presence of what his Honour described as a 'very large quantity' of cutting agent (13/9/10, ts 93).
4.The sets of scales which belonged to the appellant.
5.The presence of small clipseal bags.
6.The presence of the shotgun, .22 calibre rifle and crossbow.
The grounds of appeal
There are three grounds of appeal. Ground 1 alleges that the sentence was manifestly excessive. Ground 2 alleges that his Honour erred by finding, beyond reasonable doubt, that the methylamphetamine was not merely to be supplied to friends and that the offence was part of a broader commercial enterprise. Ground 3 alleges that his Honour did not give 'sufficient discount' to the appellant's fast‑track plea of guilty.
It is convenient to deal with the grounds of appeal in this order: ground 2, ground 3 and ground 1.
Ground 2
His Honour was not bound to accept the version of facts put to him by defence counsel. It is clear from the transcript of the sentencing proceedings that his Honour was not prepared to act on the assertions made by defence counsel. In these circumstances, it was necessary for the appellant to call evidence on the issues and establish them on the balance of probabilities: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [25], [27].
The appellant did not call evidence to support the assertions made by defence counsel. His Honour was entitled to decide the issues on the material before him. He found beyond reasonable doubt that the offence was committed as part of a broader commercial enterprise, and that the appellant possessed the 15.78 g of methylamphetamine with intent to distribute it commercially. The facts referred to by his Honour that I have already mentioned compellingly demonstrate that the appellant was engaged in the commercial distribution of the drug and that the offence was committed for a commercial purpose.
Ground 2 has no reasonable prospect of success.
Ground 3
His Honour expressly took into account the fast‑track plea of guilty (13/9/10, ts 98). The ground alleges that his Honour gave insufficient weight to this factor. A failure to give adequate weight to a relevant sentencing consideration only gives rise to an appealable error if it amounts to a failure to exercise a discretion actually entrusted to the court: Vagh v The State of Western Australia [2007] WASCA 17 [76]. This plainly is not the case here. A weighting error, as alleged in this case, is not a ground of appeal. Rather, it is a conclusion that is implicit in, and flows from, a finding that a sentence is manifestly excessive: Trompler v The State of Western Australia [2008] WASCA 265 [32]. Accordingly, ground 3 is not, as expressed, a valid ground of appeal.
In his oral submissions, Mr Moen submitted that his Honour erred by not specifying the percentage by which he discounted the sentence to take into account the fast‑track plea of guilty. This submission cannot be accepted. It is not a requirement of law to quantify the discount to be given to a plea of guilty: Fullgrabe v The State of Western Australia [2006] WASCA 138 [27] ‑ [28].
Ground 3 has no reasonable prospect of success.
Ground 1
To determine whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies in the scale of seriousness of offences of that type, and the personal circumstances of the offender: Chan v R (1989) 38 A Crim R 337, 342.
The offence of possession of methylamphetamine with intent to sell or supply it to another is, having regard to the maximum penalty prescribed by law, serious.
The circumstances of the appellant's offending were also serious. While the quantity and purity of the drug are not determinative, they are relevant and important matters. The quantity and purity of the drug involved in this case, 15.78 g of methylamphetamine at 9% purity, while unlikely to be cut further, is a reasonable amount of what is plainly a dangerous drug. The offence was committed as part of a broader commercial enterprise, and the appellant possessed the drug with an intent to distribute it commercially.
In the appellant's written submissions, he cites three cases to support the proposition that the sentence received by the appellant was 'significantly higher than for those for offences of a reasonably comparable type'. The cases cited by the appellant are Schlenka v The State of Western Australia [2004] WASCA 142; The State of Western Australia v Marchese [2006] WASCA 153; and Colangelo v The State of Western Australia [2004] WASCA 294.
The cases cited by the appellant are inadequate to establish the range of sentences customarily imposed. See, for example, Bosworth v The State of Western Australia [2007] WASCA 144.
Further, Marchese does not assist the appellant in this case. Marchese was a State appeal which was decided prior to the abolition of the double jeopardy principle. A factor sometimes overlooked about this frequently cited case is that the State's appeal was heard eight months after the appellant had been sentenced to a suspended imprisonment order and an intensive supervision order. He had, prior to the hearing of the appeal, successfully completed a significant portion of the intensive supervision order. Both Steytler P and Wheeler JA considered that the sentence imposed upon the appellant was inadequate, but declined to intervene, having regard to the significant delay in bringing the appeal on for hearing and the progress made by the appellant towards his rehabilitation.
The sentence imposed by his Honour in this case was not outside the range of sentences customarily imposed for the offence committed by the appellant.
The matters personal to the appellant do not afford much mitigation. The appellant was a mature adult with prior relevant convictions. While the sentence of imprisonment may well impact upon the appellant's invalid father and aged mother, that impact is not, in the circumstances of this case, mitigatory. In any event, the major sentencing considerations for offences of this kind are general and personal deterrence, the major objective being to stop people from committing them: R v Bellissimo (1996) 84 A Crim R 465, 471; and The State of Western Australia v Andela [2006] WASCA 77 [16]. Accordingly, matters personal to the offender have less weight than they might have in other cases: The State of Western Australia v Andela [17].
Having regard to all the circumstances of the case, I am not satisfied that the sentence imposed upon the appellant is manifestly excessive.
Ground 1 has no reasonable prospect of success.
Conclusion
None of the grounds of appeal have a reasonable prospect of success. I would not grant leave and I would dismiss the appeal.
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