Barton v The State of Western Australia

[2016] WASCA 196

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   BARTON -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 196

CORAM:   BUSS P

MAZZA JA

HEARD:   18 NOVEMBER 2016

DELIVERED          :   18 NOVEMBER 2016

FILE NO/S:   CACR 155 of 2016

BETWEEN:   RYAN FRANCIS BARTON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :STEWART DCJ

File No  :IND 1098 of 2015

Catchwords:

Criminal law - Appeal against sentence - Five counts of possessing a prohibited drug with intent to sell or supply it to another - Three counts of possessing a thing capable of being stolen that was reasonably suspected to be unlawfully obtained - Total effective sentence of 5 years 10 months' imprisonment - Early pleas of guilty - Some offences committed while on bail for other offences - Totality principle

Legislation:

Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Result:

Application for an extension of time to appeal dismissed
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):

Le v The State of Western Australia [2014] WASCA 120

Moreton v The State of Western Australia [2011] WASCA 258

Pitassi v The State of Western Australia [2014] WASCA 231

The State of Western Australia v Littlefair [2013] WASCA 177

Tran v The State of Western Australia [2016] WASCA 37

1. JUDGMENT OF THE COURT:    The appellant has applied for an extension of time to appeal and leave to appeal against sentence. 

2. The last day for filing a notice of appeal was 1 January 2016.  The appellant did not file his appeal notice until 5 October 2016.  The application for an extension of time is supported by the appellant's affidavit sworn 8 September 2016 and filed on 5 October 2016. 

3. The appellant was convicted, on his pleas of guilty in the District Court before Stewart DCJ, of eight counts in an indictment. 

4. Counts 1, 2, 3, 4 and 5 were committed on 21 September 2014 at Seville Grove. 

5. Counts 6 and 7 were committed on 23 October 2014 at Armadale.

6. Count 8 was committed on 24 October 2014 at Seville Grove.

7. Count 1 alleged that the appellant was in possession of a thing capable of being stolen, namely an iPad, that was reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) (the Code). On this count the sentencing judge imposed a sentence of 6 months' immediate imprisonment.

8. Count 2 also alleged that the appellant was in possession of a thing capable of being stolen, namely an iPad, that was reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Code. On this count her Honour imposed a sentence of 6 months' immediate imprisonment.

9. Count 3 alleged that the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). On this count her Honour imposed a sentence of 2 years 7 months' immediate imprisonment.

10. Count 4 alleged that the appellant had in his possession a prohibited drug, namely MDMA, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act.  On this count her Honour imposed a sentence of 10 months' immediate imprisonment.

11. Count 5 alleged that the appellant had in his possession a prohibited drug, namely cocaine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act.  On this count her Honour imposed a sentence of 10 months' immediate imprisonment.

12. Count 6 alleged that the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act.  On this count her Honour imposed a sentence of 10 months' immediate imprisonment.

13. Count 7 alleged that the appellant was in possession of a thing capable of being stolen, namely $1,185, that was reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Code. On this count her Honour imposed a sentence of 6 months' immediate imprisonment.

14. Count 8 alleged that the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act.  On this count her Honour imposed a sentence of 3 years 3 months' immediate imprisonment.

15. The sentencing judge, in the application of the totality principle, reduced the individual sentence for count 8 from 4 years' immediate imprisonment to 3 years 3 months' immediate imprisonment.

16. Her Honour ordered that the sentence for count 8 be served cumulatively upon the sentence for count 3.  Her Honour also ordered that the sentences for the other counts be served concurrently with each other and concurrently with the sentence for count 3.  The total effective sentence was 5 years 10 months' imprisonment.  The total effective sentence was backdated to 25 October 2014, being the date on which the appellant was taken into custody for the offences.

17. The facts and circumstances of the offences are as follows.

18. On 21 September 2014, police attended at the appellant's home and recovered two stolen iPads.  Those iPads were the subject of counts 1 and 2.

19. Later that day, police executed a search warrant at the appellant's home.  They located a clipseal bag containing 26.7 g of methylamphetamine with a purity of 68%.  They also located another clipseal bag containing 6.9 g of methylamphetamine with a purity of 25.4%.  The total weight of the drugs was 33.6 g.  Those drugs were the subject of count 3.

20. Further, while executing the search warrant, the police located 23 MDMA tablets and powder containing MDMA.  The total weight of the tablets and powder was 5.57 g.  Those drugs were the subject of count 4.

21. In addition, while executing the search warrant, the police located 5.24 g of cocaine with a purity of 69% and another 1.05 g of cocaine.  The total weight of the cocaine was 6.29 g.  Those drugs were the subject of count 5.

22. On 21 September 2014, after he was charged with counts 1, 2, 3, 4 and 5, the appellant was released on bail.

23. On the evening of 23 October 2014, the appellant was driving a motor vehicle when he was stopped by police.  The police searched the appellant's vehicle and located 5.6 g of methylamphetamine, the subject of count 6, and $1,185 in cash, the subject of count 7.  The police also located two mobile telephones which contained messages relating to prohibited drugs.

24. On 24 October 2014, police executed a search warrant at the appellant's home.  They located two clipseal bags containing methylamphetamine.  One bag had 27.5 g with a purity of 82%.  The other bag had 27.5 g with a purity of 81%.  The police also located an additional 6.46 g of methylamphetamine at the appellant's home.  The total weight of the drugs was 61.46 g.  Those drugs were the subject of count 8.  Further, the police located at the appellant's home digital scales, plastic straw scoops, spoons, clipseal bags in various sizes and 'tick lists'.

25. The sentencing judge found, based on the presence of tick lists, cash and telephone messages in relation to the sale of drugs, that the appellant's drug offending was for 'commercial gain'.  He was a willing and motivated vendor of drugs into the community.  The term 'commercial gain', in this context, includes the ongoing sale of significant quantities of drugs over a significant period for the combined purposes of repaying drug debts and financing the acquisition of new drugs for personal consumption.

26. Her Honour noted that the appellant's early pleas of guilty were a mitigating factor. Those pleas facilitated the administration of justice. The appellant had accepted responsibility for his offending and the pleas were evidence of his remorse. Her Honour allowed the appellant a discount of 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA), on the head sentence she would otherwise have imposed for each offence.

27. The sentencing judge noted that, while the appellant had been in custody, he had been addressing his drug addiction.  He had completed numerous courses and had undergone counselling.

28. The appellant was born on 1 May 1978.  He was aged 37 when sentenced.

29. The appellant has been involved in two long‑term relationships.  The end of his marriage in 2010 caused him emotional turmoil and precipitated his return to illicit drugs.

30. Prior to his offending, the appellant was self‑employed as a mortgage broker.  He is unlikely to be able to renew his licence as a result of his convictions for the offences in question.

31. The appellant has a history of anxiety and attention deficit hyperactivity disorder.  He is taking prescribed medication for anxiety.

32. The appellant has a prior criminal record.  His previous convictions comprise traffic offences (including dangerous driving occasioning bodily harm) and possession of a prohibited drug (multiple offences).  He has not previously been imprisoned.

33. The appellant relies on one ground of appeal.  The ground alleges, in effect, that her Honour erred by imposing a total effective sentence which infringed the first limb of the totality principle.

34. The appellant does not challenge any of the individual sentences.  He does not allege that the sentencing judge made any express error and he does not challenge any of her Honour's findings of fact.

35. The nature and content of the first limb of the totality principle and other relevant sentencing principles are set out in Pitassi v The State of Western Australia [2014] WASCA 231 [33] ‑ [37]. It is unnecessary to repeat them.

36. The maximum sentence for each of the offences of possessing a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act, is 25 years' imprisonment or a fine of $100,000 or both.

37. We have had regard to the sentencing dispositions for drug dealing in a range of previous cases including 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; Tran v The State of Western Australia [2016] WASCA 37; and the sentencing decisions for drug dealing referred to in those cases. It is unnecessary to reproduce the relevant facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.

38. In the present case, the appellant's drug dealing offences were, no doubt, serious.  The sentencing judge's unchallenged finding was that the appellant dealt in illicit drugs for 'commercial gain' in the sense we have described.  He willingly distributed drugs into the community.  The quantity and purity of the drugs the subject of counts 3 and 8 were significant.

39. The appellant was aged 36 at the time of the offending.  He was not youthful or inexperienced for sentencing purposes.

40. The appellant was not of prior good character.  He had previous convictions.  The fact that the previous sentences did not achieve the purposes for which they were imposed did not aggravate the seriousness of his current offending, but the previous convictions demonstrated that the current offences were not aberrations by a person who was otherwise of good character.

41. When the appellant committed counts 6, 7 and 8 he was on bail for counts 1, 2, 3, 4 and 5.  That was an aggravating factor.

42. The principal sentencing considerations for the drug dealing offences were appropriate punishment and personal and general deterrence.

43. In our opinion, it was necessary, in order properly to mark the appellant's overall criminality in committing eight offences on two disparate occasions, to accumulate the individual sentences for counts 3 and 8.

44. We are satisfied, after taking into account the maximum penalties for each of the offences; the facts and circumstances of the offending viewed as a whole; the total effective sentences imposed in prior cases with at least some features comparable to the appellant's offending; the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind; the personal circumstances of the appellant; and all other sentencing factors (including the pleas of guilty and the other mitigating factors), that the total effective sentence of 5 years 10 months' imprisonment was within the range open to her Honour on a proper exercise of her discretion.

45. The total effective sentence bears a proper relationship to the overall criminality involved in the appellant's offending, viewed in its entirety, and after having regard to all relevant facts and circumstances and all relevant sentencing factors.  It is not reasonably arguable that a proper basis exists for inferring error from the sentencing outcome.

46. The proposed ground of appeal has no reasonable prospect of success. 

47. The application for an extension of time to appeal should be dismissed and leave to appeal should be refused.  Accordingly, the appeal must be dismissed.