Brockway v Pando

[2010] WASCA 192

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   BURTON -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 192

CORAM:   McLURE P

MAZZA J

HEARD:   22 SEPTEMBER 2010

DELIVERED          :   8 OCTOBER 2010

FILE NO/S:   CACR 112 of 2010

BETWEEN:   DEAN CAMERON BURTON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S              :CACR 113 of 2010

BETWEEN             :CHRIS PETER CLIFFORD FIELDING

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :WISBEY DCJ

File No  :IND 479 of 2010

Catchwords:

Criminal law - Sentence - Possession with intent to sell or supply - MDMA - Totality - Turns on own facts

Legislation:

Nil

Result:

CACR 112 of 2010
Leave to appeal refused
Appeal dismissed

CACR 113 of 2010
Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

CACR 112 of 2010

Counsel:

Appellant:     Ms A S Rogers

Respondent:     No appearance

Solicitors:

Appellant:     Andrew Maughan & Associates

Respondent:     Director of Public Prosecutions (WA)

CACR 113 of 2010

Counsel:

Appellant:     Ms A S Rogers

Respondent:     No appearance

Solicitors:

Appellant:     Andrew Maughan & Associates

Respondent:     Director of Public Prosecutions (WA)

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

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

Bosworth v The State of Western Australia [2007] WASCA 144

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

Dickens v The Queen [2004] WASCA 179

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

Giglia v The State of Western Australia [2010] WASCA 9

HV v The State of Western Australia [2006] WASCA 242

Lam v The State of Western Australia [2010] WASCA 61

R v Faithfull [2004] WASCA 39

RP v The State of Western Australia [2010] WASCA 75

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

Sinagra-Brisca v The Queen [2004] WASCA 68

The State of Western Australia v Higgins [2008] WASCA 15

The State of Western Australia v Johnson [2010] WASCA 187

Vagh v The State of Western Australia [2007] WASCA 17

1. McLURE P:  In each appeal there is an application for leave to appeal, and if leave is granted, to appeal against sentence.  The appellants, Mr Burton and Mr Fielding, were convicted on their fast‑track pleas of guilty of two counts of possession of a prohibited drug (MDMA) with intent to sell or supply.  Count 1 involved 1,000 ecstasy tablets weighing 243.89 g of approximately 5% purity.  Count 2 involved 2,554 ecstasy tablets weighing 623.22 g of approximately 5% purity.

2. On 9 July 2010 Wisbey DCJ sentenced the appellants to 2 years 6 months' imprisonment on count 1 and 3 years' imprisonment on count 2.  He ordered the sentences to be served cumulatively resulting in a total sentence of 5 years 6 months' imprisonment.

3. The appellants rely on two grounds of appeal.  First they claim the total sentence breaches both limbs of the totality principle and secondly that the sentencing judge erred in ordering the sentences to be served cumulatively.

4. The facts are as follows.  On 23 December 2009 the appellants, together with other co‑offenders, were travelling in a vehicle which was stopped and searched by police.  The search revealed two clipseal bags containing the ecstasy tablets the subject of count 1.  The ecstasy tablets the subject of count 2 were located at the residence shared by the appellants. 

5. The antecedents of both appellants are very similar.  Mr Burton was aged 23 at the time of sentencing and had no relevant prior convictions.  He had a stable and supportive upbringing and the continued support of his family.  He is a qualified carpenter who had been working as a subcontractor since February 2008.  He did not use prohibited drugs and had no substance abuse issues.  Following his arrest, he underwent counselling at the Salvation Army Genesis Centre.

6. Mr Fielding was also aged 23 at the time of sentencing.  He had been in regular employment since leaving school after year 12.  He too had a supportive upbringing and did not have a substance abuse problem.

7. The sentencing judge found that both appellants had fully cooperated with police, were remorseful and intent on achieving rehabilitation. 

8. The sentencing judge also found that the appellants had decided to embark on a drug dealing enterprise purely for financial reasons and to that end planned the procurement of the drug, its subsequent sale or supply and calculated the estimated profit.  The appellants travelled to Queensland to acquire something in the order of 4,000 or 5,000 ecstasy tablets. 

9. The sentencing judge concluded that both appellants were engaged in a joint activity and there was nothing to distinguish their level of participation or criminality.  He continued:

   Although you'd just embarked upon this activity, you have to be regarded as midlevel suppliers of the substance ‑ or had clearly had that intention.

Totality

1. It is unnecessary to continually restate the sentencing principles applicable to persons convicted of drug dealing offences.  They are very well‑known and are most recently restated in The State of Western Australia v Johnson [2010] WASCA 187 [17] ‑ [21], [25]; Giglia v The State of Western Australia [2010] WASCA 9 [43].

2. The facts of this case underscore the continuing need for strong deterrent sentences.  The appellants knew what they were doing was illegal and risky but were prepared to take the risk because of the anticipated financial gains from the enterprise.

3. Having regard to all relevant sentencing variables, the length of the total sentence imposed on the appellants is broadly consistent with the standards of sentencing customarily imposed in this jurisdiction:  see Vagh v The State of Western Australia [2007] WASCA 17; RP v The State of Western Australia [2010] WASCA 75; The State of Western Australia v Higgins [2008] WASCA 157; The State of Western Australia v Johnson (above); Samuels v The State of Western Australia [No 2] [2006] WASCA 222; Lam v The State of Western Australia [2010] WASCA 61; Dixon v The State of Western Australia [2006] WASCA 255; Colangelo v The State of Western Australia [2004] WASCA 294; Bosworth v The State of Western Australia [2007] WASCA 144.

4. There is no arguable basis for the claim that the total sentence imposed on the appellants is disproportionate to the total criminality of the offending or is relevantly crushing.  I would refuse leave to appeal on this ground.

Cumulation

1. The sentencing judge was clearly mindful of all relevant issues.  He approached the sentencing in the following way:

Having made a deduction for your early pleas and cooperation, the appropriate term of imprisonment in respect of count 1 is two and a half years.  In respect of count 2, the appropriate term would have been of the order of four to five years.

Looking however at the issue of totality and the fact that it's unrealistic to sentence on the basis of two discrete offences, bearing in mind that you acquired the total number of tablets at the one time, I reduce the term on count 2, to three years, which I make cumulative on count 1, giving an effective head term of five and a half year's imprisonment.

1. The relationship between the one‑transaction rule, orders for cumulation and concurrence and totality are discussed in many cases including R v Faithfull [2004] WASCA 39 and Dickens v The Queen [2004] WASCA 179. Their application in the context of drug dealing offences have been discussed in Sinagra-Brisca v The Queen [2004] WASCA 68 [27] ‑ [30], HV v The State of Western Australia [2006] WASCA 242 [13] ‑ [18], [23] ‑ [25] and Borbil v The State of Western Australia [2007] WASCA 24 [83] ‑ [89].

2. In this case the sentencing judge was clearly cognisant of the overlapping aspects of the criminal conduct as a whole and reduced the otherwise appropriate sentence on count 2.  However, the gravamen of the offending is what the offender intends to do in the future with the drugs in his possession, namely to sell or supply them to another.  The higher the quantity and purity of the drugs possessed by the offender, the more widespread the deleterious ripple effect caused by his conduct.  The sentencing judge in this case came to the view that the total criminality of the conduct required cumulation.  No error is discernible in his approach or conclusion.  Leave to appeal on this ground should be refused.

3. For these reasons, I would refuse leave to appeal and dismiss both appeals.

4. MAZZA J:  I agree with McLure P.