Bosworth v The State of Western Australia

[2007] WASCA 144

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   BOSWORTH -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 144

CORAM:   STEYTLER P

McLURE JA
MILLER AJA

HEARD:   17 MAY 2007

DELIVERED          :   13 JULY 2007

FILE NO/S:   CACR 139 of 2006

BETWEEN:   GEORGE KENNETH BOSWORTH

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :YEATS DCJ

File No  :IND 152 of 2006

Catchwords:

Criminal law - Sentencing - Possession of methylamphetamine with intent to sell or supply and 10 counts of selling methylamphetamine to another - Whether total sentence of 7 years 4 months' imprisonment manifestly excessive

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a), (c)

Result:

Appeal allowed in part
Sentence of 7 years 4 months set aside
Sentence of 5 years 10 months imposed

Category:    B

Representation:

Counsel:

Appellant:     Mr A O Karstaedt

Respondent:     Ms L D O'Connor

Solicitors:

Appellant:     Max Crispe

Respondent:     State Director of Public Prosecutions

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

Bellissimo (1996) 84 A Crim R 465

Borbil v The State of Western Australia [2007] WASCA 24

Cameron v The Queen [2000] WASCA 286

Colangelo v The State of Western Australia [2004] WASCA 294

Dann v The State of Western Australia [2006] WASCA 254

Ditri v The State of Western Australia [2006] WASCA 283

Dixon v The State of Western Australia [2006] WASCA 255

Grakalic v The Queen (2002) 27 WAR 19

Hiron v The Queen [2003 WASCA 310

Hollingsworth v The Queen [2004] WASCA 73

Jarvis v The Queen (1993) 20 WAR 201

Kezkiropoulos v The Queen (2002) 136 A Crim R 522

Le v The Queen (2004) 147 A Crim R 269

Leonard v The Queen, unreported; CCA SCt of WA; Library No 990152; 29 March 1999

Lowndes v The Queen (1999) 195 CLR 665

Macri v The State of Western Australia [2006] WASCA 63

Marchesano (2000) 116 A Crim R 237

Marker v The Queen (2002) 135 A Crim R 55

Mill v The Queen (1988) 166 CLR 59

Mishal v The Queen [2001] WASCA 328

Moore v The State of Western Australia [2006] WASCA 121

Nelis v The Queen [2000] WASCA 194

Olomi v The State of Western Australia [2004] WASCA 304

Pepper v Western Australia (2005) 30 WAR 447

Postiglione v The Queen (1997) 189 CLR 295

R v Hafner [2002] WASCA 211

R v Holder [1983] 3 NSWLR 245

R v Weston [2000] WASCA 389

Ryan v The Queen (2001) 206 CLR 267

Samuel v The State of Western Australia [2004] WASCA 154

Samuels v The State of Western Australia (No 2) [2006] WASCA 222

Schlenka v The Queen [2004] WASCA 142

Sinagra‑Brisca v The Queen [2004] WASCA 68

Stapleton v The Queen [2004] WASCA 130

The State of Western Australia v Andela [2006] WASCA 77

Tulloh v The Queen (2004) 147 A Crim R 107

Urbano v The State of Western Australia [2006] WASCA 147

Vodanovic v The Queen, unreported; CCA SCt of WA; Library No 960056; 9 February 1996

Vogel v The Queen [2002] WASCA 261

Watson v The Queen [2000] WASCA 119

Watt v The Queen [2000] WASCA 354

Western Australia v Marchese (2006) 163 A Crim R 363

Wong v The State of Western Australia [2004] WASCA 286

Woods v The Queen (1994) 14 WAR 341

1. STEYTLER P:  I have had the advantage of reading the judgments of McLure JA and Miller AJA.  They agree that the total sentence of imprisonment imposed upon the appellant was excessive and that he should serve, in lieu of that total sentence, a total term of imprisonment of 5 years and 10 months, dating from 23 February 2005, with eligibility for parole.  They differ in only one respect.  That is whether the sentence of 5 years and 10 months' imprisonment on count 1 (possession of 84.17 grams of methylamphetamine, with an average purity of 24.08 per cent, with intent to sell) was manifestly excessive.  Miller AJA has concluded that it was.  McLure JA has concluded that the sentence is at the high end of, but not outside, a sound discretionary range.

2. The relevant legal principles are not in doubt.  They have been discussed in the judgments of McLure JA and Miller AJA.  It seems to me, perhaps not surprisingly, that this is a borderline case.  However, after examining the authorities to which each of McLure JA and Miller AJA has referred, and taking into account that the appellant was operating a commercial drug‑dealing enterprise at a time when he was on conditional release for a similar offence, I agree with McLure JA that, although severe, the term of imprisonment imposed by the sentencing Judge was within, if only just within, a sound discretionary range.  I agree with McLure JA and Miller AJA that the application of the totality principle (as to which see Postiglione v The Queen (1997) 189 CLR 295 at 307 ‑ 308 per McHugh J and Woods v The Queen (1994) 14 WAR 341 at 352 per Anderson J) leads inevitably to the conclusion, for the reasons given by McLure JA, that the total effective sentence of 7 years and 4 months' imprisonment imposed by the sentencing Judge was too long. I agree that an appropriate total sentence would be one of 5 years and 10 months' imprisonment.

3. I agree with Miller AJA, for the reasons that he has given, that ground 2 fails.

4. I would consequently uphold ground 4 of the grounds of appeal.  While I would leave the individual sentences imposed by the sentencing Judge undisturbed, I would order that all of those sentences be served concurrently, resulting in a total sentence of 5 years and 10 months' imprisonment, with eligibility for parole, dating from 23 February 2005.  The appellant will consequently be eligible for parole 3 years and 10 months after that date.

1. McLURE JA:  This is an appeal against sentence.  The facts and grounds of appeal are detailed in the reasons for judgment of Miller AJA and not repeated here unless required for an understanding of these reasons.

2. The appellant was convicted of one count of possession of 84.17 grams of methylamphetamine with intent to sell or supply to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The total quantity comprised eight separate amounts with a purity ranging between 15 per cent to 36 per cent. A sentence of 5 years and 10 months was imposed for this offence.

3. The appellant was also convicted of 10 counts of selling 3.5 grams of methylamphetamine to another contrary to s 6(1)(c) of the Misuse of Drugs Act.  A sentence of 18 months' imprisonment was imposed on each count.  The sentences on these counts were ordered to be served concurrently with each other but cumulative on the sentence imposed for the possession count resulting in a total effective sentence of 7 years and 4 months.  The appellant was made eligible for parole.

4. The appellant contends that the individual sentences are manifestly excessive and that the total effective sentence breaches the totality principle.  I agree with Miller AJA for the reasons he gives that the sentence of 18 months on each of the selling counts is not manifestly excessive.  However, unlike Miller AJA, I have concluded that the sentence of 5 years and 10 months on the possession count is not manifestly excessive.

5. The relevant legal principles that govern the disposition of this appeal are settled.  An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge:  Lowndes v The Queen (1999) 195 CLR 665. It may intervene if the sentencing judge has made a material error of fact or law. Error may be inferred if an individual sentence is manifestly excessive or if the total effective sentence infringes the totality principle.

6. In order to establish manifest excess, the appellant must establish that the sentence was outside the range of a sound sentencing discretion having regard to the seriousness of the offence, the circumstances of the offending, matters personal to the applicant and the sentences customarily imposed for offences of that nature.  The relevant sentencing principles for drug offences are detailed in Western Australia v Marchese (2006) 163 A Crim R 363 and The State of Western Australia v Andela [2006] WASCA 77 and not repeated here. It is sufficient to note for present purposes that because significant weight is accorded to considerations of deterrence, reduced weight is given to matters personal to the offender.

7. The appellant was almost 57 years of age when he committed the offences the subject of this appeal ("the current offences").  He turned to the business of drug dealing to obtain a financial return.  He had a prior conviction for being in possession of amphetamines with intent to sell or supply for which he was placed on a conditional release order to be of good behaviour for a period of 2 years.  The current offences were committed before the expiration of that 2 year period.  The appellant's commercial motivation and his repetition of serious criminal conduct justify significant weight being given to the need for personal deterrence.  The primary mitigating factor is the appellant's fast track plea of guilty.  The appellant did show police the location of the drugs albeit only after being informed that police had a search warrant and intended to search his house for drugs.

8. The purpose of considering sentences customarily imposed for the same or similar offences is to assist in the identification of the range of a sound sentencing discretion and to ensure an appropriate level of consistency in sentencing.  Selective reliance on individual sentences at the low end of the range is of little assistance.  Further, when considering whether a particular sentence is outside the range, regard must be had to the variables that impact on the length of a sentence.  The type, amount and purity of the drug in question are relevant variables affecting culpability and a useful starting point for identification of the range.  The fact that the offence under consideration is part of a commercial enterprise is another factor reflecting on culpability:  Moore v The State of Western Australia [2006] WASCA 121; Ditri v The State of Western Australia [2006] WASCA 283.

9. There are a sufficient number of comparable sentences in this jurisdiction to satisfy me that the sentence of 5 years and 10 months is not inconsistent with sentences customarily imposed or outside the range of a sound sentencing discretion.  Relevant comparators, all of which involved a plea of guilty, include Dann v The State of Western Australia [2006] WASCA 254; Borbil v The State of Western Australia [2007] WASCA 24; Dixon v The State of Western Australia [2006] WASCA 255; Colangelo v The State of Western Australia [2004] WASCA 294; Nelis v The Queen [2000] WASCA 194.

10. In Dann the offender pleaded guilty to one count of possession of 30.99 grams of methylamphetamine, 20.7 grams of which had a methylamphetamine purity of less than 1 per cent but a dimethyphetamine purity of 79 ‑ 80 per cent.  A sentence of 6 years' imprisonment was upheld on appeal. 

11. In Dixon the offender pleaded guilty to one count of possession of methylamphetamine with intent to sell or supply, one count of possession of ecstasy with intent to sell or supply and one count of possession of LSD.  The total weight of all the drugs was 75.49 grams comprising 56.17 grams of methylamphetamine with a purity ranging between 4 and 6 per cent for which the offender was sentenced to 3 years and 2 months; 19.3 grams of ecstasy with a purity ranging between 21 and 25 per cent; and 0.02 grams of LSD.  This Court upheld a total effective sentence of 4 years and 8 months.

12. In Borbil the offender pleaded guilty to three counts of selling or supplying heroin and methylamphetamine.  The total weight of the drugs was 55.173 grams with purity ranging between 14 to 20 per cent.  A total effective sentence of 7 years and 4 months' imprisonment was reduced on appeal to 5 years and 6 months.  The court reduced a sentence of 3 years and 4 months' imprisonment for supplying 26.806 grams of methylamphetamine with a purity of 14 per cent to 2 years and 6 months.  The facts of Colangelo (4 years' imprisonment on one count of possession of 53.32 grams of methylamphetamine) and Nelis (a post transitional sentence of 4 years and 8 months' imprisonment for selling 54.75 grams of methylamphetamine) are detailed in Borbil at [55] and [57].

13. These cases support the conclusion that a sentence of 5 years and 10 months' imprisonment is at the high end but is not outside a sound discretionary range in circumstances where the appellant was in possession of 84.17 grams of methylamphetamine with an average purity of 24 per cent pursuant to a commercial drug dealing enterprise which offence was committed whilst the appellant was on a conditional release order for the same offence.

14. The appellant also contends that the total effective sentence of 7 years and 4 months infringes the totality principle which principle requires the judge who is sentencing an offender for multiple offences to ensure that the aggregate of the sentences appropriate for each offence is a just and appropriate measure of the total criminality of the offending as a whole:  Postiglione v The Queen (1997) 189 CLR 295 at 307 ‑ 308 per McHugh J. The total sentence must bear a proper relationship to the

overall criminality involved in the various offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally:  Woods v The Queen (1994) 14 WAR 341 at 352 per Anderson J.

1. The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than the sum of the individual sentences for each offence:  R v Holder [1983] 3 NSWLR 245 at 260 ‑ 261. The question for this Court is whether the total effective sentence of 7 years and 4 months is a just and appropriate measure of the total criminality of the appellant's conduct. In my view the total sentence is too long, it being more than is fairly necessary to achieve all the sentencing objectives, including punishment, retribution and deterrence. Weighing heavily in this conclusion is the appellant's cooperation with police which resulted in his convictions on the selling counts (see Ryan v The Queen (2001) 206 CLR 267 at 312), the fact that those counts were part of the commercial enterprise, a matter which was taken into account in the sentence for the possession count, and finally because the sentence on that count is at the high end of the sentencing range.

2. Accordingly, I would set aside the order for cumulation and instead order that all the sentences be served concurrently resulting in a total sentence of 5 years and 10 months.

3. MILLER AJA: The appellant was indicted on one count of having in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to the provisions of s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) and 10 counts of selling a prohibited drug, namely methylamphetamine, to another, contrary to the provisions of s 6(1)(c) of the Misuse of Drugs Act 1981.  The offences were alleged to have occurred between 1 August 2005 and 13 September 2005. 

4. The appellant pleaded guilty before Yeats DCJ on 9 March 2006 and the plea was a fast‑track plea.  It had been entered upon the appellant's first appearance in the Court of Petty Sessions. 

5. After hearing detailed submissions in relation to sentence, the learned sentencing Judge sentenced the appellant to 5 years 10 months' imprisonment for possession of methylamphetamine with intent to sell or supply and 18 months' imprisonment on each of the counts of selling methylamphetamine.  All counts of selling were ordered to be served concurrently, but cumulative upon the sentence for possession of methylamphetamine with intent to sell or supply.  The resultant sentence

was 7 years 4 months.  The appellant was made eligible for parole and his sentence dated from 23 February 2005. 

Grounds of appeal

1. The appellant has been granted leave to appeal on four grounds.  They are as follows:

   "1.The learned Judge erred in imposing a sentence on Count 1 that was manifestly excessive having regard to:

   (a)the Appellant's early plea of guilty on the fast‑track system;

   (b)the Appellant's full co‑operation with and significant assistance to the police;

   (c)the Appellant's personal circumstances and antecedents;

   (d)the nature and circumstances of the offending, and comparative sentences in other relevant cases.

   2.The learned Judge erred in imposing a sentence in respect of Counts 2 ‑ 11 that was manifestly excessive having regard to:

   (a)the fact that the Appellant voluntarily informed the police of the matters giving rise to these counts in circumstances where the police would not otherwise have known of these matters and the Appellant would not otherwise have been charged or convicted in respect of them;

   (b)the Appellant's early pleas of guilty on the fast‑track system;

   (c)the Appellant's full co-operation with the police;

   (d)the Appellant's personal circumstances and antecedents.

   3.The learned Judge erred in imposing a total effective sentence that was manifestly excessive having regard to the matters referred to in Grounds 1 and 2.

   4.Further or in the alternative to Ground 3., the learned Judge erred in imposing a total effective sentence which infringed the principle of totality, having regard to the overall criminality involved in the various offences viewed in their entirety and all the circumstances of the case including those referable to the Appellant personally."

Facts

1. The facts were not in dispute.  They revealed that, at about 1.30 pm on 13 September 2005, the appellant was apprehended at a service station on Safety Bay Road, Warnbro.  His vehicle was searched by police, but nothing was found.  He was then conveyed to his residence at Harrison Street, Rockingham, where a search warrant was executed.  At the commencement of the search, the appellant was informed that the house would be searched for drugs and he was asked whether he wished to declare the presence of any drugs in the house.  He did so, showing police to a walk‑in robe off the main bedroom of the house.  There, a plastic clipseal bag was located and within that bag were a further three clipseal bags.  Each of those three bags contained 3.5 grams of crystal methylamphetamine.  The appellant then showed police another plastic clipseal bag which was on a curtain rod in the dining room.  It contained 3.37 grams of crystal methylamphetamine.  The appellant confessed that he was in possession of the methylamphetamine with intent to sell it to others, and that each of the bags was to be sold for between $800 and $1000.  The total weight of the methylamphetamine seized was 84.17 grams, with the average purity calculated as being 24.08 per cent.

2. A further search of the house revealed the presence of $11,750 in cash and a set of electronic scales.  The appellant confessed that he had used the scales to weigh the methylamphetamine.  He also confessed that $10,000 of the money located was from the proceeds of sale of methylamphetamine.  He then admitted to selling 10 lots of 3.5 grams each of methylamphetamine on 10 separate occasions for $1000 each.

Sentencing

1. The learned sentencing Judge first detailed the facts of the case.  She then referred to matters personal to the offender, pointing out that he was in a different position from most offenders who came before the Court.  He was 57 years of age and had led a blameless life until September 2004, when he was convicted of possession of amphetamine with intent to sell or supply.  On that occasion, he had been found in possession of 3.5 grams of amphetamine, together with $2500 in cash.  He was placed on a conditional release order to be of good behaviour for a period of 2 years, with an undertaking of $2000. 

2. The appellant's personal history revealed that he had been born in London in 1948 and had resided in London until 1972, when he came to Australia with his wife and two children.  Two further children were born in Australia.  He had since separated from his first wife and had remarried.  He had stepchildren and a further child of the second marriage.  He was regarded as a person from a very stable family background. 

1. The explanation given for the appellant's drug dealing was described by the learned sentencing Judge as "a very elaborate story".  It was suggested that, because of redundancy from employment and the failure of a business he had begun himself, the appellant was unable to obtain employment, and had turned to drug dealing.  It was also suggested that there had been some threats associated with his stepson's involvement in the methylamphetamine trade, but the learned sentencing Judge indicated that there was no requirement to make any decision about that.  In any event, there appears to have been no evidence before the learned sentencing Judge to support that proposition.

2. The learned sentencing Judge accepted that the appellant had co‑operated fully with police and had admitted to the 10 drug sales in circumstances where they would not otherwise have been proven.  However, she concluded that the appellant was an adult person who had chosen to involve himself heavily in dealing in methylamphetamine, and, in consequence, had placed many people in the community at risk.  Her Honour repeated what is often said in the courts; namely, that methylamphetamine is considered to be in the highest category of drugs and it leads (through the addiction of users) to the majority of the criminal offences before the courts in this State. 

3. The learned sentencing Judge gave the appellant full credit for his early pleas of guilty, for his co‑operation with police and for his remorse.  She stressed, however, that deterrent penalties were called for in cases of this nature, particularly because of the "ripple effect through the community" occasioned by dealing in methylamphetamine.  She imposed sentences of 5 years 10 months on the first count and 18 months' imprisonment on all other counts, to be served concurrently, but cumulatively with the sentence on the first count.  The result was a sentence of 7 years 4 months' imprisonment.

Grounds of appeal

Ground 1

1. This ground contends that the sentence imposed on count 1 was manifestly excessive, having regard to a number of matters personal to the appellant and to comparative sentences in other relevant cases. 

2. I have already pointed out that the learned sentencing Judge took full account of the appellant's early pleas of guilty and his co‑operation with police.  She also took full account of his personal circumstances and his antecedents - although her Honour did not deal with the appellant's health problems, of which there were a multitude, but, most significantly, hypertension, type 2 diabetes and heart disease.  Her Honour otherwise dealt with all aspects of the appellant's personal circumstances.

3. It has been said many times that, in cases of this nature, matters personal to the offender are accorded little weight:  see Watson v The Queen [2000] WASCA 119, where Malcolm CJ, at [102], said:

   "No authority is now required for the proposition that, in the case of serious drug offences, matters personal to an offender are accorded little weight."

4. The real question under the first ground of appeal is whether the early plea of guilty and the co‑operation with police were sufficiently taken into account by the learned sentencing Judge and whether, in all the circumstances, the sentence imposed on count 1 was outside the range of sentences that could be expected for an offence of this nature. 

5. I have already made reference to the fact that the learned sentencing Judge did take into account the early plea of guilty and the appellant's co‑operation.  Against those two factors was the fact that the appellant had a prior conviction for possession of a prohibited drug with intent to sell or supply for which, only 12 months beforehand, he had been placed on a conditional release order.  He was clearly a drug dealer who was of very mature age and who was in the business of drug dealing solely for profit.

6. Counsel for the appellant submitted that a review of comparable cases revealed that the sentence imposed by the learned sentencing Judge on count 1 on the indictment was manifestly excessive.  It was conceded that comparison with other cases is of limited assistance because of the fact that each case turns on its own facts and circumstances:  see the oft‑quoted passages from Tulloh v The Queen (2004) 147 A Crim R 107, at [21], per Miller J, and, at [46], per McLure J.

7. There is another significant variable when dealing with comparable cases.  It is the significant discount which is given to fast‑track pleas of guilty.  The present case was one in which a fast‑track plea of guilty was entered, and so comparison with such cases is valid.  However, many of the cases are complicated by the fact that such a plea is not always present:  see Urbano v The State of Western Australia [2006] WASCA 147, per McLure JA, at [14].

8. Appreciating these limitations upon the exercise of looking at comparable cases, one can nevertheless draw some very clear indications of a sentencing range from a number of the decided cases. 

9. The first category of cases to consider are those cases which involve possession, with intent to sell or supply, of large quantities of methylamphetamine.  Generally speaking, sentences of up to 10 years' imprisonment (where appropriate converted under the post‑transitional provisions) can be said to be within the customary sentencing range:  Tulloh (supra); Cameron v The Queen [2000] WASCA 286; Grakalic v The Queen (2002) 27 WAR 19; Kezkiropoulos v The Queen (2002) 136 A Crim R 522; Stapleton v The Queen [2004] WASCA 130; and Macri v The State of Western Australia [2006] WASCA 63. In some cases, even where pleas of guilty have been entered, sentences as high as 13 years or more have been imposed for multiple counts of possession of substantial quantities of methylamphetamine and MDMA: Sinagra‑Brisca v The Queen [2004] WASCA 68.

10. In cases involving smaller quantities of methylamphetamine (between 3 grams and 65 grams), sentences (where appropriate converted in accordance with the post‑transitional provisions) have ranged from between 2 and 5 years.  Most cases involved pleas of guilty.  Examples from the last 10 years are:  Vodanovic v The Queen, unreported; CCA SCt of WA; Library No 960056; 9 February 1996 (24.5 grams of 2 per cent purity - 2 years); Bellissimo (1996) 84 A Crim R 465 (20.8 grams of 6 per cent purity - 3 years 10 months); Leonard v The Queen, unreported; CCA SCt of WA; Library No 990152; 29 March 1999 (sale of 22.4 grams of 8.5 per cent purity amphetamines - 3 years 4 months); Nelis v The Queen [2000] WASCA 194 (three counts of selling and/or possession, including 54.75 grams of unknown purity - 4 years 8 months); Marchesano (2000) 116 A Crim R 237 (41.1 grams of 20 per cent purity and 1.36 grams of 20 per cent purity - 2 years 4 months); Watt v The Queen [2000] WASCA 354 (6.74 grams of between 18 ‑ 22 per cent purity - 2 years 8 months); R v Weston [2000] WASCA 389 (41.77 grams of unknown purity - 1 year 8 months, suspended for 2 years); Mishal v The Queen [2001] WASCA 328 (20 grams of 2 per cent purity - 2 years); R v Hafner [2002] WASCA 211 (attempted sale or supply of 21.2 grams of 36 per cent purity - 4 years); Vogel v The Queen [2002] WASCA 261 (3.8 grams of 11 per cent purity and 2.86 grams of 37 per cent purity - 2 years); Marker v The Queen (2002) 135 A Crim R 55 (two counts, one of 53.9 grams of 41 per cent purity and one of 0.1 gram of 59.3 per cent purity respectively - 4 years 5 months); Hiron v The Queen [2003 WASCA 310 (over 120 Grams of varying purity in three counts leading to a total term of 4 years 8 months' imprisonment); Hollingsworth v The Queen [2004] WASCA 73 (9.2 grams of between 3 ‑ 5 per cent purity - 2 years, but concurrent with other offences and cumulative on sale of 29 grams of methylamphetamine, making a total of 5 years); Schlenka v The Queen [2004] WASCA 142 (12.7 grams of 47 per cent purity - 1 year 8 months' imprisonment); Samuel v The State of Western Australia [2004] WASCA 154 (6.25 grams of 25 per cent purity - 2 years, suspended for 2 years); Le v The Queen (2004) 147 A Crim R 269 (two counts involving methylamphetamine of respectively 6.94 grams of 81 per cent purity and 27.9 grams of 83 per cent purity - 2 years 1 month and 4 years 2 months cumulative); Wong v The State of Western Australia [2004] WASCA 286 (26 grams of 6 per cent purity - 2 years 6 months, but cumulative with other sentences); Colangelo v The State of Western Australia [2004] WASCA 294 (53.32 grams of varying purity - 4 years, but cumulative with other sentences); Olomi v The State of Western Australia [2004] WASCA 304 (64.48 grams with purity unknown - 2 years 8 months, cumulative on other sentences, but concurrent with a parole term); Pepper v Western Australia (2005) 30 WAR 447 (3.5 grams of 56 ‑ 62 per cent purity - 2 years, cumulatively with other sentences); and Samuels v The State of Western Australia (No 2) [2006] WASCA 222 (23.5 grams of 34 per cent purity - 5 years).

11. As can be expected, the facts of these cases vary enormously.  Ages, criminal records and the question of addiction are all obvious variables.  However, by and large, there is a consistency in sentences for "mid‑range dealers".  Sentences under the new regime are often between 2 and 4 years' imprisonment but sometimes more.

12. In the present case, the appellant was undoubtedly a mid‑range dealer.  He was of advanced age and was dealing in drugs solely for profit.  He had previously been convicted of a dealing offence.  The major things that could be said in his favour were his early plea of guilty and his co‑operation with police.  Matters personal to him carried little weight. 

13. It seems to me that a sentence of 5 years 10 months was outside the range that could be expected for possession with intent to sell or supply of 84.17 grams of methylamphetamine of average purity of the order of 24 per cent.  The quantity was at the top of the range of quantities which I have described as "smaller quantities of methylamphetamine", but was well removed from the large quantities in excess of 1 kilogram of methylamphetamine which are to be found in a number of the cases.

14. In all the circumstances, I consider that the sentence imposed upon the appellant was outside the range of sentences that could have been expected for the amount of methylamphetamine involved.  An appropriate sentence would, in my view, have been 4 years 4 months.

Ground 2

1. This ground contends that the sentence of 18 months' imprisonment on the 10 counts of sale of methylamphetamine was also manifestly excessive and for the reasons (a) that the police had been voluntarily informed of the offences; (b) the appellant had pleaded guilty on the fast‑track system; (c) the appellant had fully co‑operated; and (d) the personal circumstances and antecedents of the appellant. 

2. There is no doubt that disclosure to the police of these offences was a matter to be taken into account by the learned sentencing Judge (Ryan v The Queen (2001) 206 CLR 267, per McHugh J, at 272). The learned sentencing Judge did take it into account. The learned sentencing Judge also took fully into account the early plea, the co‑operation and (to the extent that she could) the appellant's personal circumstances and antecedents.

3. In all the circumstances, I can see no substance in the contention that a sentence of 18 months in relation to each of the offences of sale of methylamphetamine was an excessive sentence.  Each was ordered to be served concurrently, with the result that the overall sentence of 18 months' imprisonment for those 10 offences was a very modest sentence, indeed. 

Grounds 3 and 4

1. These grounds are related to each other.  Ground 3 contends that the total effective sentence was manifestly excessive, having regard to the matters referred to in grounds 1 and 2.  Ground 4 contends that, in the alternative to ground 3, the learned sentencing Judge erred in imposing a total effective sentence which infringed the totality principle. 

2. The totality principle is well understood.  It was set out by the High Court in Mill v The Queen (1988) 166 CLR 59, at 62 ‑ 63, and referred to in this Court by Ipp J in Jarvis v The Queen (1993) 20 WAR 201 at 206 ‑ 207. It is sufficient for present purposes to quote a portion of what Ipp J said, at 207:

   "The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender's conduct:  see Veen v The Queen (No 2) (1988) 164 CLR 465; Evangelista v The Queen; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika (1986) 83 FLR 312."

3. In the present case, it was almost inevitable that the sentences for the 10 counts of selling methylamphetamine would be ordered to be served cumulatively upon the sentence imposed on count 1 on the indictment.

4. Given that I am of the view that the sentence on count 1 should be reduced to a sentence of 4 years 4 months, the accumulation of a further 1 year 6 months to make a total of 5 years 10 months is a proper reflection of the criminality of the appellant's behaviour.

Conclusion

1. In my view, the appellant has made out the first ground of appeal, but I would dismiss grounds 2, 3 and 4.  I would allow the appeal, set aside the sentence of 5 years 10 months imposed by the learned sentencing Judge in respect of count 1 and substitute for it a sentence of 4 years 4 months.  The sentences of 18 months' imprisonment on each of counts 2 to 11 inclusive will remain and will remain to be served concurrently, but cumulatively upon the sentence imposed on count 1.