BONHAM-SMITH v The State of Western Australia
[2023] WASCA 146
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BONHAM-SMITH -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 146
CORAM: BUSS P
HALL JA
HEARD: 8 SEPTEMBER 2023
DELIVERED : 18 OCTOBER 2023
FILE NO/S: CACR 65 of 2023
BETWEEN: GUY BONHAM-SMITH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LEMONIS DCJ
File Number : IND 2224 of 2022
Catchwords:
Criminal law - Appeal against sentence - Drug offences - Where appellant engaged in commercial drug dealing - Whether total effective sentence of 6 years' imprisonment infringed first limb of totality principle
Legislation:
Criminal Code (WA), s 417(1)
Criminal Investigation Act 2006 (WA), s 61(2)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(b)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | S D Freitag SC |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Assurance Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Celani v The State of Western Australia [2021] WASCA 215
Chadburne v The State of Western Australia [2017] WASCA 216
Curry v The State of Western Australia [2022] WASCA 36
Gaskell v The State of Western Australia [2018] WASCA 8
HSH v The State of Western Australia [2022] WASCA 151
IIO v The State of Western Australia [2022] WASCA 38
Kabambi v The State of Western Australia [2019] WASCA 44
Le v The State of Western Australia [2022] WASCA 163
Slade v The State of Western Australia [2019] WASCA 65
Stipanich v The State of Western Australia [2023] WASCA 118
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Stocker [2022] WASCA 178
JUDGMENT OF THE COURT
This is an application for leave to appeal against sentence.
The appellant was convicted on his pleas of guilty of the following six counts on an indictment.
(1)Possession of a prohibited drug, namely a trafficable quantity 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).
(2)Possession of 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.
(3)Possession of a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act.
(4)Possession of a thing capable of being stolen, namely Australian currency, that was reasonably suspected of being unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA).
(5)Manufacturing a prohibited drug, namely cannabis oil, contrary to s 6(1)(b) of the Misuse of Drugs Act.
(6)Failure to obey a data access order, contrary to s 61(2) of the Criminal Investigation Act 2006 (WA).
The appellant requested the sentencing court to also deal with seven other pending charges pursuant to s 32 of the Sentencing Act 1995 (WA). Those charges related to possession of psilocybin, drug paraphernalia, a prohibited weapon, MDMA and two types of prescription drugs for which he did not have a prescription.[1]
[1] ts 184 - 185.
Some factual issues in relation to counts 1, 2 and 4 were in dispute and there was a trial of issues to resolve those issues. In relation to counts 1 and 2 the issue was whether the appellant was intending to sell any of the drugs in question (methylamphetamine and cocaine) or whether he intended to only supply some of those drugs to friends in a social setting and to use the remainder personally. In relation to count 4 the issue to be determined was whether all of the cash seized was the proceeds of drug dealing or whether all or some of it had come from legitimate sources of income. Both of those issues were determined against the appellant. The sentencing judge concluded that the appellant was intending to sell a significant portion of the methylamphetamine and the cocaine and was in possession of those drugs for commercial gain, and that the cash in dispute was in fact the proceeds of drug dealing by the appellant.[2]
[2] ts 234 - 235.
The appellant was sentenced as follows:
Count 1:4 years 8 months' imprisonment.
Count 2:1 year 8 months' imprisonment.
Count 3:1 year 8 months' imprisonment.
Count 4:1 year's imprisonment.
Count 5:6 months' imprisonment.
Count 6:4 months' imprisonment.
The sentences on counts 4 and 6 were ordered to be served cumulatively on that for count 1. The sentences on counts 2, 3 and 5 were ordered to be served concurrently with the sentence on count 1. As regards the charges on the s 32 list, the appellant was sentenced to fines on two of the charges and sentences of imprisonment of between 1 month and 3 months on the other charges, all of which were made concurrent. Thus, the total effective sentence was 6 years' imprisonment.[3]
[3] ts 237 - 238.
The appellant now seeks leave to appeal against the total effective sentence on the ground that it infringes the first limb of the totality principle. That is, the appellant contends that the total effective sentence of 6 years was disproportionate to his offending conduct when viewed as a whole. It is not suggested that any of the individual sentences were inappropriate.
For the reasons that follow, the ground of appeal has no reasonable prospect of success. It is not reasonably arguable that the total effective sentence was plainly unreasonable or unjust. Leave should be refused and the appeal dismissed.
The facts
On 18 August 2020 the police executed a search warrant at a residential property where the appellant was living. The search focussed on the appellant's bedroom in the main house and on a shed at the property, which the appellant used and occasionally slept in. During the search the police found the drugs and cash that were the subject of the charges in the indictment.[4]
[4] ts 193 - 194.
In the shed the police located a locked box, which was bolted to the floor. A key to the box was found on a keychain that included the appellant's car keys. The box contained various containers and clipseal bags. Those containers and bags contained drugs as follows: 6.52 g of methylamphetamine with a purity of 80%; 1.87 g of methylamphetamine of unknown purity; 3.5 g of methylamphetamine with a purity of 57%; 5.52 g of cocaine with a purity of 22%; 4.88 g of cocaine with a purity of 24%; and 2.88 g of cocaine with a purity of 24%. The box also contained two bars of silver, 1.46 g of MDMA and a quantity of cash. The cash was partly in sandwich bags and partly in bundles, and totalled $17,885.[5]
[5] ts 194.
The police located a second metal box under a couch in the shed. This box was combination locked and the appellant said that he did not know the combination. After forcing entry to the box, police officers found a further 14 g of methylamphetamine with a purity of 72% and 3.34 g of cocaine with a purity of 22%, in clipseal bags.[6]
[6] ts 194.
A third metal box was also found under the couch. Next to this box 55.6 g of methylamphetamine with a purity of 73% was located.[7]
[7] ts 194, 197.
The police also located other quantities of cash. In a hessian bag on the couch in the shed $21,050 was found sealed in cryovac bags. In an envelope on a table in the shed $1,200 was found.[8]
[8] ts 194.
The total amount of methylamphetamine seized was 81.49 g. The total amount of cocaine seized was 16.62 g. The total amount of cash seized was $40,135.[9]
[9] ts 194, 196.
Elsewhere in the shed, police found clipseal bags with a residue of white powder. The appellant admitted that these bags had been used for methylamphetamine and cocaine. Packets of new clipseal bags, a large packet of rubber bands (of the same type as had been used to bundle some of the cash), MDMA purity testers and cocaine purity testers, three sets of digital scales (two with white residue), 14.92 g of psilocybin mushrooms, glass smoking implements, a vacuum sealing machine, an ultrasonic cleaner, a small torch that had been modified to act as a taser, a money counting device, and a CCTV system were also found. A notepad with handwriting that the appellant admitted was his contained lists of names and amounts of money, ranging from hundreds to tens of thousands of dollars.[10]
[10] ts 194 - 195.
Also in the shed police located 5.16 kg of cannabis in various vacuum sealed bags and containers. The State accepted that only 2.996 kg of this cannabis was of a saleable quality.[11]
[11] ts 195 - 196.
Police officers also located a number of items involved in the manufacture of cannabis oil. These included a PVC pipe with a cap on one end and perforations, a pot with green residue, a ceramic bowl with green paste, a coffee grinder, a plastic bowl, butane cannisters and bottles of liquid with a high pH level. When questioned about these items the appellant admitted that he had manufactured cannabis oil from cannabis leaf. It was not clear how much cannabis oil had been manufactured.[12]
[12] ts 196.
During the search of the shed the appellant's mobile telephone was seized. As the search was in progress messages were received on the telephone that the prosecution alleged related to drug dealing. On 4 March 2021 the appellant was served with a data access order in relation to the telephone, which required him to provide information to access the telephone by 12 March 2021. He failed to provide that information.[13]
[13] ts 196 - 197.
The appellant admitted possession of the drugs but claimed that they were primarily for personal use or to supply to friends. He also claimed that the cash was derived from legitimate sources. After a trial of those issues the sentencing judge found that the appellant intended to sell a majority of the methylamphetamine, though he would also have used a 'not insignificant proportion of it' himself and would also have supplied a small amount to friends in a social setting. He found that the appellant intended to sell the majority of the cocaine. He found that the appellant intended to sell some of the cannabis but would also have used some of it himself. It was accepted that the smaller quantities of drugs (psilocybin, MDMA and the prescription drugs) and the smoking implements were for the appellant's personal use.[14]
[14] ts 230 - 232.
The sentencing judge found that at the time of the search the appellant was engaged in a drug dealing business. The appellant was actively involved in selling methylamphetamine, cocaine and cannabis. His Honour found that the cash was derived from the sale of drugs.[15]
[15] ts 234 - 235.
Personal circumstances
The appellant was 28 years old at the time of the offences and 31 years old at the time of sentencing. His parents separated when he was 5 years old. He maintains good relations with both parents.[16]
[16] ts 232.
The appellant left school in early year 11. He had a number of different jobs before commencing an apprenticeship as a mechanic at the age of 19. He undertook this apprenticeship with his father's business. He finished that apprenticeship when he was 22 and then commenced his own mobile mechanic business.[17]
[17] ts 232.
The appellant has had several intimate relationships, the most recent two of which involved regular mutual drug use. When he broke up with his most recent partner, prior to this offending, he took an overdose which resulted in him being hospitalised in May 2019.[18]
[18] ts 232.
The appellant began smoking cannabis at around the age of 17. He progressed to smoking cannabis daily, though at the time of sentencing he was no longer smoking cannabis as he had obtained a prescription for a cannabis product. He commenced smoking methylamphetamine at around the age of 25. This use escalated to daily use by the time he was 27. Following the relationship breakup that led to him being hospitalised he was using around a gram of methylamphetamine a day. He also used MDMA in social settings.[19]
[19] ts 233.
After the appellant's arrest he engaged positively with Palmerston and attended 11 sessions of counselling to address his drug use. Other than the prescribed cannabis, the appellant had stopped illicit drug use by the time of sentencing.[20]
[20] ts 233.
A psychologist's report and a psychiatrist's report were available to the sentencing judge. The psychologist stated that the appellant had showed poor judgment, poor assessment of consequences and some rebelliousness against societal norms in his decision making. The psychologist noted that following his arrest the appellant had made significant changes to his life but there remained a risk of reoffending if he engaged with using drugs or the people that he had previously associated with. The psychiatrist was of the view that the appellant did not have any diagnosable mental disorder although he did have some traits of borderline personality disorder. The psychiatrist was of the view that if the appellant remained abstinent from drugs his risk of reoffending was low.[21]
[21] ts 233.
The appellant wrote a letter to the sentencing judge in which he stated that after the end of his last relationship his addiction started to control his life and he struggled with his mental health.[22] A letter from the appellant's mother confirmed that the appellant had ceased using drugs with the support of his family and friends. Other references spoke of the appellant being an involved and contributing member of the community, a valued member of his family, of having turned his life around and of his remorse for the offending.[23]
[22] The appellant also sent a letter to this court following the hearing of the application for leave. That letter could only be taken into account if error in the original sentence is established and the appellant is re‑sentenced.
[23] ts 233 - 234.
The appellant has a prior criminal history, which includes drug related offences, though none that involved an intent to sell or supply drugs. His previous offending has resulted in fines.[24]
[24] ts 234.
Sentencing remarks
The sentencing judge assessed the appellant's risk of offending as being low to moderate. He said that that risk arose from the possibility that the appellant may turn back to drug use and start associating again with those involved in the drug trade.[25]
[25] ts 234.
As to the seriousness of the offending the sentencing judge referred to the following factors:[26]
(1)The significant quantity of drugs in the appellant's possession.
(2)The different quantities of different drugs, which reflected that the appellant was engaged in a relatively significant drug dealing operation that had been operating for some time.
(3)The considerable harm that could have been caused to members of the community if the drugs had been distributed.
(4)That the offending was carried out for commercial gain, the appellant's intent being to sell part of the methylamphetamine, cocaine and cannabis for profit.
[26] ts 234.
Although the sentencing judge accepted that one of the appellant's purposes was to fund his own extensive drug habit, he was also engaging in drug dealing activity to fund his lifestyle.[27]
[27] ts 234 - 235.
The sentencing judge was of the view that count 1 was the most serious offence, given the quantity of methylamphetamine involved and having regard to the maximum penalty for that offence. He said that the sum of money involved in count 4 was significant and he was satisfied that it was reasonably suspected that the cash came from the sale of drugs and that this reflected the commercial nature of the drug dealing operation in which the appellant was engaged. In relation to count 6 the sentencing judge said that the failure to provide the passcode had the effect of obstructing law enforcement agencies in carrying out their role in detecting offences. That conduct also had the capacity to protect people who were coordinating or benefitting from the drug transactions that the appellant was carrying out or in respect of whom he was buying or selling drugs.[28]
[28] ts 235.
As regards mitigating factors, the sentencing judge accepted that the appellant's pleas of guilty were an important mitigating factor. In relation to counts 3, 5 and 6 his Honour was satisfied that the pleas were entered at the first reasonable opportunity, though the case against the appellant was relatively strong. His Honour allowed a discount of 22.5% in respect of those counts. In relation to counts 1, 2 and 4 his Honour noted that whilst the appellant had pleaded guilty, a trial of issues was necessary which took place over three days. That resulted in findings against the appellant and reduced the benefit of his pleas of guilty. In respect of those counts his Honour allowed a discount of 12.5%.[29]
[29] ts 235 - 236.
Whilst the sentencing judge accepted that the appellant was remorseful 'to an extent' he noted that the reports suggested that the appellant did not accept that he intended to sell or supply the methylamphetamine in his possession. His Honour assessed this as meaning that the appellant was grappling with the gravity of what he had done, as opposed to not appreciating the harm that his actions could have caused.[30]
[30] ts 236.
As regards rehabilitation, the sentencing judge accepted that the appellant had made significant gains and had the benefit of positive support and an offer of employment. The appellant had committed to his ongoing rehabilitation.[31]
[31] ts 236.
The sentencing judge noted that the major sentencing considerations for offences of dealing in dangerous drugs of addiction are general and personal deterrence. Matters personal to an offender are typically secondary considerations although not completely irrelevant. Given his assessment of the appellant's risk of reoffending his Honour considered that personal deterrence was not a significant sentencing consideration, although it still had some relevance. General deterrence, however, was a significant sentencing consideration. It was also a matter of particular importance in relation to count 6, the offence of failure to comply with a data access order.[32]
[32] ts 236 - 237.
The sentencing judge imposed the individual sentences for the offences referred to at [5]. The sentence on count 4 was reduced for totality reasons from 1 year 8 months to 1 year's imprisonment. His Honour also made the orders for accumulation and concurrency referred to at [5]. In doing so he stated that the total effective sentence of 6 years was one that he considered to be a just and appropriate measure of the total criminality of the appellant's offending as a whole, having regard to all of the circumstances and all of the relevant sentencing factors. The sentence was backdated by one day to take into account a day that the appellant had spent in custody prior to being sentenced and an order was made that the appellant be eligible for parole.[33]
[33] ts 237 - 239.
Ground of appeal
There is one ground of appeal. It is as follows: The sentencing judge erred in imposing a sentence that was manifestly excessive in all the circumstances of the offending and the personal circumstances of the appellant.
On the face of it this ground would appear to be suggesting that an individual sentence was manifestly excessive rather than contending that the total effective sentence breached the totality principle. However, the appellant's written and oral submissions made it clear that the individual sentences are not disputed and it is the total term that is the subject of the appeal. Thus, in effect, the contention is that the total effective sentence was contrary to the first limb of the totality principle, that is that the total effective sentence was disproportionate to the offending when viewed as a whole and having regard to all relevant sentencing considerations.
Appellant's submissions
The appellant submits that the total sentence imposed on him of 6 years was disproportionate having regard to his personal circumstances, notwithstanding the weight and purity of the drugs involved.[34] In support of his submission the appellant refers to Celani v The State of Western Australia;[35] IIO v The State of Western Australia[36] and The State of Western Australia v Stocker.[37]
[34] Appellant's submissions [37].
[35] Celani v The State of Western Australia [2021] WASCA 215.
[36] IIO v The State of Western Australia [2022] WASCA 38.
[37] The State of Western Australia v Stocker [2022] WASCA 178.
The appellant suggests that Celani and IIO are comparable cases on their facts but that the offenders in those cases received lower total sentences, being 5 years 2 months' imprisonment and 5 years 3 months' imprisonment respectively. He submits that the offending in Stocker was more serious than that of the appellant but resulted in a sentence of 6 years 6 months' imprisonment. The suggestion is that the sentences imposed in those cases are inconsistent with that imposed on the appellant and support a conclusion that the appellant's total sentence is plainly unreasonable or unjust.[38]
[38] Appellant's submissions [39] - [44].
Merits of the appeal
The relevant principles relating to appeals against sentence where there is a claim that the total effective sentence breaches the totality principle are well established. Those principles have been stated many times and have been conveniently summarised in Kabambi v The State of Western Australia.[39] It is unnecessary to repeat them.
[39] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The major sentencing considerations for offences of dealing in or trafficking 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. That is because it can be presumed that the greater the quantity and the purity, the greater the harm which may be done to the community. 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.[40]
[40] Gaskell v The State of Western Australia [2018] WASCA 8 [128].
The maximum penalties for the offences on the indictment are as follows:
(1)Count 1: possession of a trafficable quantity of methylamphetamine with intent to sell or supply - life imprisonment.[41]
(2)Count 2: possession of cocaine with intent to sell or supply it to another - 25 years' imprisonment and/or a fine of $100,000.[42]
(3)Count 3: possession of cannabis with intent to sell or supply it to another - 10 years' imprisonment and/or a fine of $20,000.[43]
(4)Count 4: possession of money that was reasonably suspected to have been unlawfully obtained - 7 years' imprisonment.[44]
(5)Count 5: the manufacture of cannabis oil - 25 years' imprisonment and/or a fine of $100,000.[45]
(6)Count 6: failure to comply with a data access order without reasonable excuse - 5 years' imprisonment.[46]
[41] Misuse of Drugs Act, s 34(1)(a).
[42] Misuse of Drugs Act, s 34(1)(aa).
[43] Misuse of Drugs Act, s 34(2)(a).
[44] Criminal Code, s 417(1).
[45] Misuse of Drugs Act, s 34(1)(aa).
[46] Criminal Investigation Act, s 61(2).
As to the seriousness of the offences, the fact that the appellant possessed significant quantities of three different types of illicit drugs[47] and that he was engaged in a drug dealing business, places this offending into a serious category. It is important to bear in mind that the quantity possessed at the time of arrest must be seen in the context that the sentencing judge found that the appellant had been involved in ongoing commercial drug dealing, a finding that is not challenged on appeal. Whilst there is no doubt that the appellant was a significant user of drugs, the finding of the sentencing judge was that the appellant was engaged in a commercial drug dealing business that went beyond obtaining drugs for his own use and the provision of drugs to friends and associates.
[47] Methylamphetamine, cocaine and cannabis. He also possessed smaller quantities of other drugs - but it was accepted that these were for personal use.
The role of the appellant is reflected in the fact he was in possession of many items associated with the packaging of drugs for sale, including clipseal bags and scales. The possession of the modified electric shock device is also consistent with the appellant being engaged in a drug dealing business. Furthermore, he was, on his own admission, engaged in the manufacture of cannabis oil and was in possession of over $40,000 cash. The amount of cash was indicative of the scale of the business.
Some degree of accumulation was plainly appropriate given the range and extent of the offending conduct. It was appropriate that the sentences for counts 4 and 6 were made cumulative upon each other and upon the sentence for count 1, although the sentence on count 4 was reduced for totality reasons. It has previously been recognised by this court that offences of failing to comply with a data access order justify a cumulative sentence to ensure that there is an appropriate deterrent.[48] If such sentences are not imposed there will be no incentive to comply and effective police investigations will be easily frustrated.
[48] The State of Western Australia v Doyle [2017] WASCA 207 [42]. See also Chadburne v The State of Western Australia [2017] WASCA 216 [69]; Slade v The State of Western Australia [2019] WASCA 65 [50].
We have had regard to the cases referred to by the appellant. When the circumstances of those cases are considered it is apparent that the sentences imposed in them do not support the claim that the appellant's total sentence was disproportionate. In any event, where this court dismisses an appeal against a total effective sentence that does not carry any implication that the sentence imposed was the only correct one or that that sentence is to be taken to be a limit on the exercise of discretion.
In Celani the 29‑year‑old offender pleaded guilty and received a discount of 15%. His offending was in relation to 28 g of cocaine, 93.145 g of methylamphetamine, 1.75 g of heroin and 3.62 kg of cannabis. The offender in that case was a heavy user of illicit drugs and had taken positive steps towards rehabilitation. The total sentence in that case of 5 years 2 months was not disturbed on appeal.
Unlike the appellant, the offender in Celani was not charged with any offence relating to cash that was reasonably suspected of being unlawfully obtained, nor of failure to comply with a data access order. In the appellant's case offences of that nature, quite properly, attracted cumulative sentences. Those factors alone distinguish the total criminality of the appellant from that of the offender in Celani. It is not apparent that the total sentence imposed in Celani is inconsistent with that imposed on the appellant.
In IIO the offender, who was aged in his 20s, was sentenced for offences involving a total of 142.2 g of MDMA, 2.7 g of cocaine and a relatively small amount of cash. The offender in that case pleaded guilty at the first reasonable opportunity and received a discount of 25%. His offending was described as being for commercial gain and to fund his own habit and repay drug debts. Mitigating factors of remorse and good progress towards rehabilitation were present. An appeal against the total effective sentence of 5 years 3 months' imprisonment on the ground that it infringed the first limb of the totality principle was dismissed.
The amount of cash involved in IIO ($1,640) was very significantly less than in the case of the appellant and the offender in that case was not charged with a failure to comply with a data access order. Furthermore, in IIO there was no offence involving a trafficable quantity of methylamphetamine, which attracts the higher maximum penalty of life imprisonment. When those differences are taken into account, IIO affords no assistance to the appellant.
In Stocker the offender was convicted of offences involving 54.14 g of methylamphetamine and $117,865 in cash. The offender had committed two of the four offences whilst on bail. The State appeal in that case principally concerned whether the sentencing judge had properly exercised the power to impose partially concurrent sentences. The appeal was allowed and a total sentence of 6 years 6 months was imposed.
Whilst the amount of cash in Stocker was significantly larger than that possessed by the appellant, the amount of methylamphetamine was significantly less. Furthermore, the offender in that case was not charged with failing to comply with a data access order. It is not possible to accept the appellant's contention that the offending in Stocker was more serious than his offending to such a degree as to indicate error in his total sentence. In those circumstances that case provides no assistance to the appellant.
In addition to the cases referred to by the appellant we have also had regard to the following cases: Stipanich v The State of Western Australia;[49] HSH v The State of Western Australia;[50] Le v The State of Western Australia[51] and Curry v The State of Western Australia.[52] A number of other cases are also referred to in Stocker.
[49] Stipanich v The State of Western Australia [2023] WASCA 118.
[50] HSH v The State of Western Australia [2023] WASCA 113.
[51] Le v The State of Western Australia [2022] WASCA 163.
[52] Curry v The State of Western Australia [2022] WASCA 36.
It must be borne in mind that count 1 involved a maximum penalty of life imprisonment. The increase in that penalty from 25 years' imprisonment became effective on 18 September 2017.[53] An increase in the maximum penalty should be expected to cause an increase in sentences, and that is reflected in the cases referred to.
[53] Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017 (WA), s 2(b), s 7(2).
In the present case the appellant's role did not involve a one‑off or single instance of criminal activity. As the sentencing judge properly noted, the appellant's role was one of involvement in commercial drug dealing. He was at least a mid‑level drug dealer engaged in dealing for a profit as well as for the purpose of funding his own habit. This places into proper context the quantity of the drugs and the amount of cash involved.
Conclusion
The ground of appeal has no reasonable prospect of succeeding. It is not reasonably arguable that the total effective sentence of 6 years' imprisonment was plainly unreasonable or unjust. Leave should be refused and the appeal dismissed.
Orders
1.Leave to appeal refused.
2.Appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ID
Research Associate to the Hon Justice Hall
18 OCTOBER 2023
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