Blasco v The State of Western Australia

This appeal is against sentence. The appellant was convicted, on his pleas of guilty, of eight counts in an indictment. The appellant was sentenced to a total effective sentence of 8 years imprisonment. The appellant appeals against the sentence on the sole ground that it infringes the first limb of the totality principle. For the reasons that follow, the appeal should be dismissed.

In coming to that conclusion, the Court was required to consider the totality principle and whether the total effective sentence imposed on the appellant infringed the first limb of the totality principle. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears 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 or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally, all relevant sentencing factors and the total effective sentences imposed in comparable cases.

Having regard to all of the circumstances of the case (including those personal to the appellant) and all relevant sentencing principles, it cannot be concluded that the total effective sentence imposed on the appellant was unreasonable or plainly unjust. In our view, it cannot be inferred that the learned sentencing judge was in error in the present case. The appellant committed a series of serious drug offences over the course of a number of months. The offences were not isolated events but reflected the reality that the appellant was a participant in a substantial business of distributing prohibited drugs. While he dealt in those drugs for the purpose of paying his own drug debts, that purpose was nevertheless a commercial one. Apart from the appellant's pleas of guilty, there was limited mitigation. The appellant was not youthful or inexperienced for sentencing purposes. The appellant was not otherwise of good character. His previous convictions for serious drug dealing offences underscored the importance of personal deterrence as a sentencing factor. His Honour found that the appellant's risk of reoffending was high. There was some mitigation in the appellant's dysfunctional upbringing and its consequences. There was also some mitigation in the appellant having sought counselling while in custody and having formed an intention to maintain that assistance in future.

It was not suggested by the appellant that any of the individual sentences imposed were excessive and, indeed, in our view the individual sentences were within the appropriate range of sentences. The real issue, for the purposes of totality, was the extent to which the sentences were ordered to be served cumulatively or concurrently. Given the ongoing nature of the appellant's conduct, some accumulation was necessary in order to properly reflect the overall seriousness of the offending and the totality of the criminality involved. A total effective sentence of 8 years imprisonment properly reflected that total criminality.

The decisions referred to by the appellant do not suggest otherwise. Both Carlucci and Ramsden concerned sentences imposed prior to the increase in the maximum penalty for possessing trafficable quantities of methylamphetamine to life imprisonment. That increase has, as Parliament intended, given rise to an increase in the sentences customarily imposed for that offence and is properly reflected in the totality of the sentence in the present case. In addition, as leave was refused on the basis that it was not reasonably arguable that the individual sentences or the total effective sentence were manifestly excessive, the decision in Ramsden is of little utility in revealing the range of sentences customarily imposed.

Finally, rather than supporting the appellant's case, the decision in Musulin tends to support the conclusion that the total effective sentence in the present case was not unjust or unreasonable. The personal circumstances of the appellant and the offender in Musulin were similar (although the offender in Musulin, unlike the appellant, was on parole when he committed his offences), their commercial purpose was the same (extinguishing a pre‑existing drug debt) and they received a comparable discount for their pleas of guilty (although the discount that the appellant received was slightly less, as his plea was not at the first reasonable opportunity). While the quantity of methylamphetamine in the offender's possession in Musulin was greater than in the present case, the weight of the drugs involved, while of importance, is not the chief factor. Unlike in Musulin, the appellant's overall offending occurred over an extended period of time, and involved a variety of prohibited drugs. The appellant also fell to be sentenced for offences that included two offences carrying a maximum of life imprisonment.

In all of the circumstances, the total effective sentence imposed on the appellant fell within the emerging range of sentences customarily imposed for this type of offending, since the passing of the 2017 Amendment Act. It was not unreasonable or plainly unjust.

The appeal must be dismissed.