Bees v The State of Western Australia - [2017] WASCA 202

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BEES -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 202

CORAM: BUSS P
MAZZA JA
HALL J

HEARD: 1 AUGUST 2017

DATE OF FINAL
SUBMISSIONS : 18 AUGUST 2017

DELIVERED : 27 OCTOBER 2017

FILE NO/S: CACR 133 of 2016

BETWEEN: THOMAS MICHAEL GEORGE BEES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STONE DCJ
File No  :IND 202 of 2016

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of three counts of possession of a prohibited drug with intent to sell or supply - Individual sentence of 10 years' imprisonment for count 1 and total effective sentence of 12 years' imprisonment for all counts - Whether the sentencing judge made an error of fact in finding that the only available inference was that the appellant was involved in distributing large quantities of drugs for commercial benefit and that the appellant was in the 'upper echelon' of the Perth drug trade - Whether a different individual sentence for count 1 or a different total effective sentence for all counts should have been imposed

Legislation:

Criminal Appeals Act 2004 (WA), s 31(3), s 31(4), s 31(5), s 39(1), s 39(3), s 40(1)(e)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Sentencing Act 1995 (WA), s 9AA, s 15

Result:

Appellant's application for leave to adduce additional evidence in the appeal dismissed
Leave to appeal on grounds 1 and 2 refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr J A Scholz

Solicitors:

Appellant: Patti Chong Lawyer
Respondent: Director of Public Prosecutions (WA)

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

AH v The State of Western Australia [2014] WASCA 228; (2014) 247 A Crim R 34
Al-Rafei v The State of Western Australia [2017] WASCA 4
Bahn v The State of Western Australia [2008] WASCA 40
Benter v The State of Western Australia [2005] WASCA 245
Bond v The State of Western Australia [2011] WASCA 123
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
Delovski v The Queen [2002] WASCA 88
Galbraith v The State of Western Australia [2011] WASCA 70
Giglia v The State of Western Australia [2010] WASCA 9
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
Law v The State of Western Australia [2009] WASCA 193
Le v The State of Western Australia [2015] WASCA 73
Mather v The State of Western Australia [2017] WASCA 148
Monument v The State of Western Australia [2007] WASCA 239
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
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Storey [1998] 1 VR 359
Roffey v The State of Western Australia [2007] WASCA 246
Sabau v The State of Western Australia [2010] WASCA 3
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 Hyder [2011] WASCA 256
The State of Western Australia v Toothill [2007] WASCA 236
Urbano v The State of Western Australia [2006] WASCA 147
Wheeler v The Queen [No 2] [2010] WASCA 105
Yiu v The State of Western Australia [2016] WASCA 172

BUSS P: The appellant has appealed against sentence.
On 4 August 2016, the appellant was convicted, on his pleas of guilty in the District Court before Stone DCJ, of three counts in an indictment.
Count 1 alleged that on 28 August 2015, at Osborne Park, 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) (the MD Act).
Count 2 alleged that on 28 August 2015, at Joondanna, 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 MD Act.
Count 3 alleged that on the same date and at the same place as in count 2, 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 MD Act.
On 28 August 2015, the sentencing judge imposed a term of imprisonment on each count as follows:
(a)count 1: 10 years;
(b)count 2: 2 years; and
(c)count 3: 1 year.
His Honour ordered that the sentence for count 2 be served cumulatively upon the sentence for count 1, and that the sentence for count 3 be served concurrently with the sentence for count 1. The total effective sentence was therefore 12 years' imprisonment. The total effective sentence was backdated to 8 May 2016 to take into account time that the appellant had spent in custody solely on account of the offences in question. A parole eligibility order was made.

The appellant's legal representation

At the sentencing hearing, the appellant was represented by an experienced criminal defence lawyer.
At the hearing of the appeal, the appellant was represented by a different lawyer.

The facts and circumstances of the offending

The facts and circumstances of the offending were read aloud by the prosecutor at the sentencing hearing and were not disputed by defence counsel. They were, relevantly, as follows.
As to count 1, on 28 August 2015 at 4.15 pm, police stopped a vehicle in Osborne Park. The appellant was the driver and only occupant. He was the vehicle's registered owner.
Police searched the vehicle and found a plastic container in the boot. A plastic shopping bag was inside the container. The bag held a large amount of a crystalline substance.
The plastic shopping bag contained two clipseal bags. The first clipseal bag contained a piece of cardboard with '1000 grams' written on it, together with 986 g of methylamphetamine. The drug was divided amongst two other bags within the first clipseal bag. One contained 530 g of methylamphetamine with a purity of 81% and the other 456 g of methylamphetamine with a purity of 80%. The second clipseal bag contained a piece of cardboard with '500 grams' written on it, together with 494 g of methylamphetamine. The drug had a purity of 81%.
The total quantity of methylamphetamine located in the appellant's vehicle was 1.480 kg with an average purity of 80.7%.
As to counts 2 and 3, after the appellant's car was stopped, he was taken by police to his home in Joondanna. On 28 August 2015 at 8.40 pm, police entered and searched the property.
Numerous quantities of prohibited drugs were located throughout the appellant's home:
(a)In a kitchen cupboard, there was a tin which contained a clipseal bag. The bag held 5.87 g of methylamphetamine with a purity of 75%.
(b)In the garage, there was a toolset box which contained a camera lens box. The box concealed two clipseal bags. One held 14.9 g of methylamphetamine with a purity of 74%. The other held 8.53 g of cocaine with a purity of 79%. The cocaine was the subject of count 3.
(c)In the garage, there was a shoe which contained a clipseal bag. The bag held 16.1 g of methylamphetamine with a purity of 72%.
(d)In the garage, there was a vacuum cleaner which contained a clipseal bag. The bag held 111 g of methylamphetamine at a purity of 73%.
The total quantity of methylamphetamine located at the appellant's home was 147.87 g with an average purity of 73.1%. The methylamphetamine was the subject of count 2.
In addition to the prohibited drugs, police found a clipseal bag within a sugar bag in a kitchen cupboard. The clipseal bag held a fine crystalline substance. The appellant said the substance was MSM and he occasionally added it to his food to treat his arthritis. Forensic testing confirmed that the substance was in fact MSM (a well‑known cutting or diluting agent for illicit drugs). The substance weighed 13.5 g.
Police also located at the appellant's home numerous empty clipseal bags of varying sizes, a 'tick list' and several mobile telephones.

The appellant's 'tick list'

The appellant's 'tick list' revealed that between April 2014 and July 2015 he had been dealing in prohibited drugs. During that period the appellant was selling, on a regular basis, quantities of prohibited drugs with a value of about $1,000 or $2,000. Occasionally he sold drugs of a lesser value. The total value of the drugs he sold between April 2014 and July 2015 was about $135,000.
The 'tick list' recorded drug transactions on credit. It did not record any transactions for cash.

The appellant's assertions to the author of a pre‑sentence report

On 25 July 2016, the appellant was interviewed by the author of a pre‑sentence report. The report recounts a conversation between the appellant and the author as follows:
[The appellant] said that he had been contacted via mobile phone to transport some packages to a location and he would receive payment by way of drugs and money. [The appellant] denied that he had a 'tick list' as mentioned in the [statement of material facts,] refuting that he was involved in the sale of methylamphetamines. [The appellant] said that prior to the commission of the offences he was unemployed and using a variety of illicit substances. [The appellant] said if he had of known how much was in the packages he would not have 'done it'.
The appellant also told the author of the pre‑sentence report that during 'the last two years he [had] not worked' because of 'work‑related injuries'. He stated that his only source of income was a Centrelink pension. The appellant claimed to have sold 'a significant amount of jewellery and household items to fund his lifestyle'. He was paying $300 per week for private rental accommodation.

Defence counsel's written submissions at the sentencing hearing

Prior to the sentencing hearing before the sentencing judge, defence counsel filed and served written submissions.
The written submissions stated, relevantly, that:
[The appellant] was not in sole control of an 'operation', rather he was merely a drug dealer/courier doing so to support his own habit, not for large commercial gain [34].

The interaction between the sentencing judge and defence counsel at the sentencing hearing

At the sentencing hearing, the sentencing judge informed defence counsel that his Honour's impression from the State brief, which had been tendered by the prosecutor at the hearing, was that:
(a)the appellant had been dealing in drugs between April 2014 and July 2015;
(b)during that period, he had been dealing in '$1,000 lots [or] $2,000 lots probably two, three times a month';
(c)by August 2015, the appellant had 'reached the end of the supply that [he had obtained] in 2014 and [he had] gone out and got another lot [that is, the prohibited drugs the subject of the charges in the indictment]';
(d)although his Honour was not suggesting that the appellant was 'the source of [the drugs in question]', the State brief showed that he was 'a major player in this town … in terms of [the] distribution [of prohibited drugs]';
(e)the appellant was not 'at the top … of the hierarchy', but he was 'a major mover of methylamphetamine' in Western Australia who was able to 'shift' 1.4 kg of methylamphetamine;
(f)the appellant was 'obviously trusted' by the syndicate or people from whom he acquired the drugs in question; and
(g)given that the appellant had been dealing in methylamphetamine between April 2014 and July 2015, on a regular basis, by August 2015 he had only 147 g remaining and '[in] the scheme of things [that was] not very much for someone like [the appellant], who then goes out and gets himself 1.4 kg' (ts 22 ‑ 32).
Defence counsel responded to his Honour's impressions about the appellant's offending, as follows:
(a)The appellant had a drug debt; he was repaying part of that debt; he acquired the drugs, the subject of the charges in the indictment, on credit; and he had to deliver 'some of [those] drugs … to someone else' (ts 24).
(b)The appellant understood that he was 'involved in a very large quantity of drugs' (ts 24).
(c)Defence counsel accepted that the appellant was 'moving around … 1.4 kilograms of methamphetamine' (ts 25).
(d)The appellant was '[n]ot at the top … of the hierarchy' of drug dealing or distribution in Western Australia (ts 26).
(e)The appellant had 'a history of poly drug use' (ts 26). He used cocaine and methylamphetamine (ts 27).
(f)The police had not found a large amount of cash or other indicia of wealth when they searched the appellant's home (ts 27 ‑ 28).
There was no trial of issues at the sentencing hearing.

The sentencing judge's sentencing remarks and the appellant's personal circumstances

The sentencing judge recounted in his sentencing remarks the facts and circumstances of the offending.
His Honour said he was satisfied, beyond reasonable doubt, that:
[O]n the basis of the tick list, the quantity of methamphetamine that was found in your home and the very large quantity that you'd obtained on 28 August 2015 that what had occurred [was] that you had been dealing in the drug during 2014 and 2015 and your supply had almost reached the bottom and you had gone out and got another lot of drugs for distribution on 28 August (ts 35).
The sentencing judge added that, in his view, that was 'the only inference reasonably available on [what has] been put before me by way of the objective facts' (ts 35). The appellant was 'replenishing [his] supply' (ts 35, 38).
His Honour noted that although the appellant had asserted to the author of the pre‑sentence report that he was not dealing in drugs and had denied having had a 'tick list', it was apparent from what had been said at the sentencing hearing that those matters were no longer in issue (ts 35).
Next, the trial judge referred to a number of aggravating factors in relation to the appellant's offending. First, the quantity of drugs the subject of the charges was 'very large' and had a 'fairly high purity' (ts 35). Secondly, the value of the methylamphetamine in question was 'significant' (ts 35). Thirdly, the drug dealing indicia found in the appellant's home (in particular, the 'tick list', the MSM and the clipseal bags) showed that the appellant had been selling prohibited drugs between April 2014 and July 2015, those drugs having a total value of about $135,000. That occurred while the appellant was unemployed (ts 36). Fourthly, the appellant had been 'dealing commercially' in prohibited drugs. Although his Honour accepted that the appellant 'had a drug problem' and that he would have consumed some of the drugs, the subject of the charges, the appellant 'could [not] have consumed anything like [the] quantity of drugs' seized by the police. The drugs were 'clearly intended for distribution' (ts 36). Fifthly, although the appellant was 'not at the top … of the hierarchy' and was 'not the source of the drugs', he was 'in the upper echelon … of those who distribute [methylamphetamine] in [Western Australia] in the sense that [he was] able to move a quantity of 1.47 kg'. The appellant was 'obviously trusted by the syndicate that provided [him] with such a large quantity of [methylamphetamine]' (ts 36).
Later in his sentencing remarks, his Honour said:
The tick list indicates you deal in fairly large amounts of methylamphetamine consistently. The offending on 28 August 2015 therefore was not an isolated incident. However, you are to be punished only for counts 1 to 3. Your role was towards the top of the hierarchy in terms of distribution in the sense that you were a high level drug distributor for commercial profit, although I accept you were a user of the drug also (ts 38).
His Honour reiterated, towards the end of his sentencing remarks, that he was 'not suggesting that [the appellant was] at the top of the hierarchy'. It was obvious that the appellant 'got the drugs from someone else, but [he] got a large quantity for distribution by [himself], so in that sense [he was] in the upper echelon' (ts 39).
The sentencing judge noted the appellant's personal circumstances. The appellant was aged 62 at the time of the offending and was 63 when sentenced. He has two children from a previous relationship which had disintegrated about 19 years ago. The appellant completed an electrical apprenticeship. He worked for many years in the construction industry and then in the hairdressing industry. The appellant has a history of illicit substance abuse, particularly drugs. Since 2000 he has used amphetamines regularly. The appellant has a prior criminal record. Most of the prior convictions were for possession of prohibited drugs, dishonesty offences and traffic offences. He had not previously been imprisoned. The appellant told the author of the pre‑sentence report that he was 'in relatively good health and has no mental health issues'.
His Honour referred to some mitigating factors. The principal matter of mitigation was the appellant's pleas of guilty at the first reasonable opportunity. His Honour allowed a discount of 20%, pursuant to s 9AA of the Sentencing Act 1995 (WA), to recognise the benefit to the State, and to witnesses to the offences, resulting from the pleas. His Honour took into account, as matters of mitigation, the appellant's willingness to facilitate the course of justice, his limited expressions of remorse and the degree to which he had cooperated with the police, including the limited admissions he had made in relation to count 1.
The sentencing judge noted that the following risk assessment had been made by the author of the pre‑sentence report in relation to the appellant:
The following risk factors have been identified:
•Entrenched poly‑substance use,
•Poor consequential thinking,
•Adverse peer associations and poor peer refusal skills,
•Lack of pro-social support network, and
•Lack of employment and financial constraints.

The grounds of appeal

The appellant relies on three grounds of appeal.
Ground 1 alleges that the sentence of 10 years' imprisonment for count 1 was manifestly excessive.
Ground 2 alleges that the total effective sentence of 12 years' imprisonment infringed the first limb of the totality principle.
Ground 3 alleges that the sentencing judge erred in fact by finding that the only available inference was that the appellant's role in the offending involved distributing large quantities of drugs for commercial benefit.
The appellant has provided three particulars of ground 3 which assert:
particular 3.1: when imposing the total effective sentence of 12 years' imprisonment, his Honour found that the appellant's role as a seller and distributor of large quantities of methylamphetamine for commercial benefit were aggravating factors;
particular 3.2: his Honour found that the only inference which could be drawn from the appellant's 'tick list' was that the appellant was resupplying himself and intended to distribute the 1.48 kg of methylamphetamine located in his vehicle for commercial benefit; and
particular 3.3: his Honour erred in fact because his Honour's finding that the appellant's intention to distribute the 1.48 kg of methylamphetamine placed him in the 'upper echelon' of the Perth drug trade was not the only reasonable inference available on the facts.
On 22 February 2017, Mazza JA and I granted leave to appeal on ground 3 and referred the application for leave to appeal on grounds 1 and 2 to the hearing of the appeal.

The appellant's application for leave to adduce additional evidence in the appeal

By an application in the appeal filed 4 August 2017, the appellant applied for leave to adduce, as additional evidence in the appeal, three reports relating to the use of and market for illicit drugs, including methamphetamine, in Australia.
The reports were:
(a)Australian Criminal Intelligence Commission, Illicit Drug Data Report (2014-15) (the ACIC Report).
(b)Stafford J and Breen C, Australian Drug Trends, Findings from the Illicit Drug Reporting Systems (University of New South Wales, Australian Drug Trends Series No 145, IDRS National Report 2015) (the IDRS Report).
(c)Coghlan S and Goldsmid S, Findings from the DUMA Program: Methamphetamine Drug Market Trends (Australian Government, Australian Institute of Criminology, Research Paper 43, September 2015).
The appellant asserted that the additional evidence establishes the following propositions:
(a)The 'price' of methamphetamine in Western Australia during 2014 and 2015 was $400 per gram where 3.5 g had been sold; $535 per gram where 7 g had been sold; and between $357 and $428 per gram where 28 g had been sold. No evidence was available as to the price per gram in Western Australia where 1 kg had been sold. However, the range for the purchase of 1 kg in other States during 2014 and 2015 was between $120,000 and $280,000.
(b)The consumption of methamphetamine in crystal form in 2015 by users of the drug ranged between 0.1 g and 4 g per day.
(c)The methamphetamine market in 2015 was 'socially interconnected and predominately a closed market between friends [who were] users'.
The appellant argued that those propositions supported his contention in ground 3 that the sentencing judge erred in fact by finding that the only available inference was that the appellant's role in the offending involved distributing large quantities of drugs for commercial benefit.

The organisation of the balance of these reasons

It is convenient, first, to consider ground 3 and then, if necessary, grounds 1 and 2.
I will deal with the appellant's application for leave to adduce additional evidence in the course of considering ground 3.

Ground 3

In Law v The State of Western Australia [2009] WASCA 193, I summarised (McLure & Pullin JJA agreeing) several well-established propositions in relation to the basis on which a sentencing judge must impose sentence where the offender pleads guilty [25] ‑ [34].
The role of a sentencing judge includes the making of findings of fact for the purposes of sentencing, to the extent that the judge is able to make relevant findings, on the material received during the sentencing process. See, generally, s 15 of the Sentencing Act, which provides that to decide on the proper sentence to be imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit.
An aggravating circumstance is a fact or other circumstance likely to result in a more severe sentence than would otherwise be the case. A mitigating circumstance is a fact or other circumstance likely to result in a less severe sentence than would otherwise be the case. The prosecution must prove an aggravating circumstance beyond reasonable doubt, and the offender must prove a mitigating circumstance on the balance of probabilities. See R v Storey [1998] 1 VR 359, 369, 371 (Winneke P, Brooking & Hayne JJA and Southwell AJA); R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [24], [25], [27] (Gleeson CJ, Gaudron, Hayne & Callinan JJ).
Section 31(3) of the Criminal Appeals Act 2004 (WA) provides, in effect, that unless under s 31(4) this court allows an appeal against sentence, it must dismiss the appeal. By s 31(4)(a), this court may allow an appeal against sentence if, in its opinion, a different sentence should have been imposed. By s 31(5), if this court allows an appeal against sentence, it must set aside the sentence and may instead impose a new sentence that is either more or less severe or may send the charge back to the court that imposed the sentence to be dealt with further.
Section 39(1) of the Criminal Appeals Act provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. However, s 39(3) provides that s 39(1) does not affect the power of an appeal court in s 40 to admit evidence. Section 40(1)(e) provides that, for the purposes of dealing with an appeal, an appeal court may admit any other evidence. The power in s 40(1)(e) should be exercised, in the context of an appeal against sentence, when, relevantly, had the additional evidence been before the sentencing judge, a different sentence should have been imposed. See Wheeler v The Queen [No 2] [2010] WASCA 105 [3] (McLure P), [53] (Owen JA); The State of Western Australia v Hyder [2011] WASCA 256 [25] (McLure P, Buss JA & Mazza J agreeing); AH v The State of Western Australia [2014] WASCA 228; (2014) 247 A Crim R 34 [94], [123] ‑ [124] (Martin CJ, Mazza JA & Hall J).
In the present case, the sentencing judge's finding that the appellant was 'a high level drug distributor', in the 'upper echelon' of the Perth drug trade, who distributed large quantities of methylamphetamine for 'commercial profit' was an aggravating circumstance for sentencing purposes. The onus was on the prosecution to prove that circumstance beyond reasonable doubt. It was not open to his Honour to make the finding by inference unless the inferred finding was the only reasonable inference open on the material before him.
Counsel for the appellant submitted that his Honour erred in fact because the finding that the appellant was 'a high level drug distributor', in the 'upper echelon' of the Perth drug trade, who distributed large quantities of methylamphetamine for 'commercial profit', was not the only reasonable inference available.
Counsel for the appellant referred to the ACIC Report and other parts of the proposed additional evidence which indicate that at the material time the average price per kilogram of methylamphetamine was about $250,000. It was argued that the total value of $135,000 recorded in the appellant's 'tick list' indicated sales on credit of between 270 g and 337.5 g over a period of about 70 weeks (between April 2014 and July 2015). According to counsel, the ACIC Report, the IDRS Report and the appellant's 'tick list' suggest that it would take the appellant more than five years to sell 1.480 kg of the drug.
It appears that the appellant's position at the hearing before the sentencing judge was that, of the 1.480 kg of methylamphetamine found in his vehicle, some unspecified quantity was to be supplied by the appellant to another person, some unspecified quantity was to be retained by the appellant and sold by him, and some unspecified quantity was to be retained by the appellant for his personal use.
His Honour sentenced the appellant on the basis of his Honour's finding beyond reasonable doubt that the appellant intended to sell into the community the overwhelming majority of the 1.480 kg of methylamphetamine and that the balance, being a very modest quantity, was to be retained by the appellant for his personal use.
I consider that the material before the sentencing judge which principally supported the impugned finding was the quantity and level of purity of the methylamphetamine the subject of count 1 (1.480 kg with an average purity of 80.7%), and the appellant's status as an established drug dealer.
I consider that the material before his Honour which principally did not support the impugned finding was the failure of the police to find a large amount of cash or other indicia of wealth when they searched the appellant's home, and the relatively modest value of the drugs (about $135,000 in total) which the appellant had sold on credit over a reasonably lengthy period (between April 2014 and July 2015) as recorded in the 'tick list'.
In my opinion, the sentencing judge's finding that the appellant intended to sell into the community the overwhelming majority of the 1.480 kg of methylamphetamine and that the balance, being a modest quantity, was to be retained by the appellant for his personal use, was not the only reasonable inference open on the material before his Honour.
I am satisfied that another reasonable inference was open, namely that, of the 1.480 kg of methylamphetamine in question, a significant quantity (which is unable to be determined more precisely) was to be delivered by the appellant to another person who would in turn sell and supply the drug into the community; a significant but lesser quantity (which is unable to be determined more precisely) was to be retained by the appellant and sold by him; and the balance, being a modest quantity (which is unable to be determined more precisely), was to be retained by the appellant for his personal use.
The other reasonable inference was, to a degree, more favourable to the appellant than the inference drawn by his Honour. Ground 3 has, to that extent, been made out.
However, as I will explain, I am of the opinion that a different individual sentence should not have been imposed in respect of count 1 and that a different total effective sentence should not have been imposed in respect of counts 1, 2 and 3.
The maximum penalty for the offence of possessing a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, is 25 years' imprisonment or a fine of $100,000 or both.
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. All of these propositions are well‑established by the case law.
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. These propositions are also well‑established by the case law.
I have considered numerous prior cases of offending against s 6(1) of the Act which have at least some features comparable to the appellant's offending. See 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; The State of Western Australia v Toothill [2007] WASCA 236; Monument v The State of Western Australia [2007] WASCA 239; Bahn v The State of Western Australia [2008] WASCA 40; Civello v The State of Western Australia [No 2] [2008] WASCA 163; Sabau v The State of Western Australia [2010] WASCA 3; Koncurat v The State of Western Australia [2010] WASCA 184; Tema v The State of Western Australia [2011] WASCA 41; (2011) 206 A Crim R 104; Galbraith v The State of Western Australia [2011] WASCA 70; Bond v The State of Western Australia [2011] WASCA 123; Pham v The State of Western Australia [2011] WASCA 244; Lai v The State of Western Australia [2012] WASCA 181; (2012) 225 A Crim R 218; Tanner v The State of Western Australia [2013] WASCA 142; Halmi v The State of Western Australia [2013] WASCA 229; Phan v The State of Western Australia [2014] WASCA 144; Le v The State of Western Australia [2015] WASCA 73; Yiu v The State of Western Australia [2016] WASCA 172; Kobeissi v The State of Western Australia [2016] WASCA 188; Al-Rafei v The State of Western Australia [2017] WASCA 4; Nguyen v The State of Western Australia [2017] WASCA 35; Chen v The State of Western Australia [2017] WASCA 99; Chen v The State of Western Australia [2017] WASCA 114; Mather v The State of Western Australia [2017] WASCA 148; and the cases reviewed in those decisions. It is unnecessary to reproduce the facts and circumstances of the prior cases I 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.
The very serious nature of the appellant's offending on count 1 is apparent from the following:
(a)The quantity, purity and value of the methylamphetamine.
(b)The appellant's role in taking possession of a significant part of the 1.480 kg (which is unable to be determined more precisely) for the purpose of delivery to another person who would in turn sell and supply the drug into the community.
(c)The appellant's intention to retain a significant but lesser quantity (which is unable to be determined more precisely) of the 1.480 kg for sale by him in the course of his thriving drug dealing business.
The appellant's offending on count 1 was not isolated or an aberration. He was not a person of prior good character. He was not youthful or inexperienced for sentencing purposes.
The principal mitigating factor was the appellant's plea of guilty at the first reasonable opportunity for which the sentencing judge, appropriately, allowed a discount of 20% pursuant to s 9AA of the Sentencing Act. Also, the appellant was willing to facilitate the course of justice, had expressed some remorse and had cooperated to some extent with the police (including by the making of limited admissions).
In my opinion, when the sentence of 10 years' imprisonment is evaluated having regard to:
(a)the maximum penalty;
(b)the very serious nature of the appellant's offending;
(c)the other reasonable inference which I have described at [63] above and the facts associated with that inference;
(d)the sentencing dispositions in previous cases with some features comparable to the appellant's case;
(e)the place which the appellant's criminal conduct occupies on the scale of seriousness of offences of this kind;
(f)the appellant's personal circumstances;
(g)the matters of mitigation; and
(h)all other relevant sentencing considerations,
the proper conclusion is that the sentence imposed by his Honour for count 1 was appropriate. The sentence is broadly consistent with the sentencing range that is discernible from reasonably comparable cases. No different sentence should have been imposed.
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.
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 [2007] WASCA 246 [26] (McLure JA, Steytler P & Miller JA agreeing). Also, the severity or leniency of an individual sentence 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 [2010] WASCA 9 [40] (Owen JA, McLure P & Pullin JA agreeing).
I am 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 1 and 2 to be served cumulatively. Counts 1 and 2 involved separate and distinct offending.
In my opinion, after taking into account:
(a)the maximum penalty for counts 1, 2 and 3;
(b)the very serious nature of the offending viewed as a whole;
(c)the other reasonable inference which I have described at [63] above and the facts associated with that inference;
(d)the total effective sentences imposed in previous cases with at least some features comparable to the appellant's overall offending;
(e)the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind;
(f)the appellant's personal circumstances;
(g)the matters of mitigation; and
(h)all other relevant sentencing considerations,
the proper conclusion is that the total effective sentence of 12 years' imprisonment was appropriate. 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 comparable cases. No different total effective sentence should have been imposed.

Grounds 1 and 2

The appellant established an express error in the context of ground 3. However, as I have explained, a different individual sentence should not have been imposed in respect of count 1 and a different total effective sentence should not have been imposed in respect of counts 1, 2 and 3. In the circumstances, it is unnecessary to consider ground 2 or ground 3.

Conclusion

The appellant's application for leave to adduce additional evidence in the appeal should be dismissed.
Leave to appeal on grounds 1 and 2 should be refused and the appeal should be dismissed.
MAZZA JA: I agree with Buss P.
HALL J: I agree with Buss P.