Bui v The State of Western Australia - [2014] WASCA 168

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BUI -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 168

CORAM: MAZZA JA
HALL J

HEARD: 4 AUGUST 2014

DELIVERED : 9 SEPTEMBER 2014

FILE NO/S: CACR 67 of 2014

BETWEEN: TAC BA BUI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :GOETZE DCJ
File No  :IND 64 of 2013

Catchwords:

Criminal law - Appeal against sentence - Sale of methylamphetamines - Whether totality principle infringed

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(c), s 34(1)
Sentencing Act 1995 (WA), s 8(5), s 9AA

Result:

Extension of time granted
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr A C Mcintosh
Respondent: No appearance

Solicitors:

Appellant: Abigail Rogers Barristers & Solicitors
Respondent: Director of Public Prosecutions (WA)

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

A Child v The State of Western Australia [2007] WASCA 285
Abraham v The State of Western Australia [2014] WASCA 151
Barany (2000) 114 A Crim R 426
Chu v The State of Western Australia [2012] WASCA 135
Direen v The State of Western Australia [2010] WASCA 211
Doherty v The State of Western Australia [2014] WASCA 142
F v The Queen [2005] WASCA 135
Formica v The State of Western Australia [2013] WASCA 237
Jordan v The State of Western Australia [2012] WASCA 163
Karakuyu v The State of Western Australia [2012] WASCA 75
Le v The State of Western Australia [2014] WASCA 120
LJP v The State of Western Australia [2010] WASCA 85
Ricciardi v The State of Western Australia [2012] WASCA 106
Sabri v The State of Western Australia [2012] WASCA 71
Stagno v The State of Western Australia [2013] WASCA 166
Tanner v The State of Western Australia [2013] WASCA 142
The State of Western Australia v Atherton [2009] WASCA 148
The State of Western Australia v Hunter [2014] WASCA 87
The State of Western Australia v Littlefair [2013] WASCA 177
The State of Western Australia v Tran [2014] WASCA 26

MAZZA JA: I agree with Hall J.
HALL J: This is an application for leave to appeal against sentence.
On 11 March 2014 the appellant was sentenced to a total effective sentence of 6 years' imprisonment following his pleas of guilty to two charges of selling a prohibited drug, namely methylamphetamine, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA). He was sentenced to 3 years' imprisonment on each charge, those sentences to be served cumulatively. That sentence was backdated to 13 September 2012 when he first went into custody.
An extension of time is also required. An appeal notice was not filed until 15 April 2014. That was 13 days after the last date for filing an appeal. The explanation for the delay is that legal aid was not granted for the appeal until 7 April 2014. I doubt that this is an adequate reason for not filing a notice of appeal within the allowed time. It does not explain why a further eight days elapsed after legal aid was granted before the notice was filed. However, the time involved is relatively short and for that reason I would allow an extension of time.
The ground of appeal is that the total effective sentence of 6 years' imprisonment infringed the first limb of the totality principle. That is, it is submitted that the sentence is disproportionate to the total criminality having regard to all the circumstances of the case, including those referable to the appellant personally. In written submissions the appellant particularly relies upon his early plea of guilty and an offer of assistance to the authorities.

The facts

On 2 July 2012 an undercover police operative (UCO) sent a text message to the appellant stating that the UCO had money and would come to see the appellant the next day. The police believed that the appellant was dealing in methylamphetamine. On 3 July 2012 the UCO met with the appellant at his house in Ballajura. The appellant showed the UCO a bag of drugs and offered to sell him an ounce of methylamphetamine for $13,000. The UCO handed over $13,000 in cash and received the methylamphetamine in return. Those drugs were later analysed and it was confirmed that they were methylamphetamine weighing 26.4 grams at 40% purity. This sale constitutes count 1 on the indictment.
Between 4 and 7 July 2012 the UCO and the appellant communicated by way of text message and telephone calls about the

supply of further drugs. An arrangement was made to meet at the appellant's house on 7 July 2012. On arrival there was a discussion about the UCO meeting the appellant's supplier. The appellant produced a smoking implement and smoked some methylamphetamine in the presence of the UCO. He then confirmed that the UCO had brought cash with him. A short time later another person arrived at the house. The appellant went to the door and collected a bag from that person. Inside the bag was a cigarette packet which contained a clip seal bag. The UCO then handed over $26,000 in cash to the appellant and received the clip seal bag of drugs in return. The drugs were later analysed and it was confirmed that they were methylamphetamine weighing 53.3 grams at 30% purity. This conduct constitutes count 2 on the indictment.

On both occasions the appellant was paid for his role by way of a small amount of methylamphetamine that was taken from the quantity to be sold to the UCO. The appellant did not receive any of the money paid by the UCO, all of which went to a third party supplier.

Personal circumstances

The appellant was 42 years old at the time of sentencing. He was born in Vietnam and from there went to Malaysia with his father in 1988. He spent three years in a refugee camp until being granted refugee status and entering Australia in 1991. He became an Australian citizen in 1995. After the appellant and his father settled in Australia they were joined by his mother and two younger siblings.
The appellant has been in full time employment since his arrival in Australia until approximately 2007. In 2007 he developed an addiction to amphetamines. By the time of his offending he was a heavy user of methylamphetamine.
The appellant is currently single. He has been married twice. He has a 15‑year‑old child to his first wife and they both reside in Perth. He has children aged 6, 3 and 2 years old with his second wife. Those children reside in Sydney with his second wife's sister. His elderly parents and siblings all live productive, law‑abiding lives and continue to provide support to the appellant.
Prior to being sentenced the appellant had been in custody since 13 September 2012. During that time he had completed courses to address the factors behind his offending behaviour. In particular, he had participated in a drug and alcohol programme. Enforced abstinence from drugs in prison was said to have given him a 'degree of clarity' and a resolve to rid himself of his drug addiction.

Sentencing remarks

The appellant had spoken to police whilst he was in custody. It was suggested that an offer that the appellant had made to assist the police had mitigatory value. This was referred to in the transcript:
GOETZE DCJ: An offer was made, nothing came of it.
LEMMON, MR: I understand that, your Honour.
GOETZE DCJ: So there'll be some, if you like, mitigatory quality in the offer - - -
LEMMON, MR: Yes.
GOETZE DCJ: The fact that nothing came from it means it doesn't go very far and there's no need to discuss it any further.
LEMMON, MR: Well, I - - -
GOETZE DCJ: Unless there is something else that - - -
LEMMON, MR: No, there's no. There's not, your Honour (ts 41).
Defence counsel later said:
[M]y submission is that he is entitled to some discount by virtue of the initiative that he took to do what he did. I accept that that has come to nothing. I suppose there's some possibility that in the future that could feed into some other type of investigation that may be of benefit to the police, but I accept that, at this stage, in practical terms, that that has not led anywhere but he ought to be given some small discount to reflect those actions (ts 48).
The written submissions provided to the sentencing judge on behalf of the appellant stated that he had first indicated a wish to meet with police in April 2013. He had by that time been in custody since 13 September 2012. Though he pleaded guilty to the charges on 13 May 2013 there was a dispute as to the facts. Police officers did not visit the appellant at Hakea Prison until 31 October 2013.
The learned sentencing judge noted that initially there had been a supply of some information but that the appellant had subsequently declined to provide further information. He said that the initial offer was worthy of a minimal discount even though it had proven to be of no value. In his sentencing remarks his Honour said:
You have offered assistance to the police and that came to no practical use. You get some credit for that in the process.
His Honour also noted that the appellant had pleaded guilty. There had been a delay in sentencing due to the dispute as to the facts, but it would seem that this was resolved in favour of the appellant. Accordingly, his pleas of guilty was treated as having been made at the first reasonable opportunity. His Honour allowed a 25% discount for the pleas of guilty: s 9AA Sentencing Act 1995 (WA).
His Honour said that the major considerations for sentencing in respect of offences of this nature are punishment, personal deterrence and general deterrence. He said that matters personal to the appellant carry less weight in respect of offences of this type. He said that the matters were serious, in particular having regard to the quantities of prohibited drugs involved. He also noted that the purity of the drugs was relatively high. He accepted that the appellant did not receive money for his involvement and had been given drugs. He also accepted that the appellant was addicted to drugs at the time. However, he said that the fact that the appellant was a user and was selling drugs to support his own habit did not excuse his criminality. He said that the appellant had facilitated sales of significant quantities of drugs and could not be described as a low level intermediary.
His Honour concluded that sentences of immediate imprisonment were the only appropriate penalties. He had specific regard to the totality principle. In particular that the total effective sentence should be proportional to the total criminal conduct. He indicated that in his view the appropriate sentences were 3 years for count 1 and 4 years for count 2 but having regard to the totality principle he reduced the term on count 2 to one of 3 years also.

Merits of the appeal

The totality principle has two limbs. The first limb is relied upon here. It 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, having regard to the relevant circumstances, including those referable to the appellant personally.
The sentencing considerations for offences of dealing in dangerous drugs of addiction were referred to in The State of Western Australia v Atherton [2009] WASCA 148:
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. See Bellissimo v The Queen (1996) 84 A Crim R 465, 471. 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 solely for commercial gain. See Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [67] - [70]; Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [50]; Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [52]. The degree of purity is often regarded as significant. See The State of Western Australia v Tran [2008] WASCA 183 [9]. Matters personal to an offender will almost always be a very limited consideration, but they are not completely irrelevant. See Bellissimo, (469); Tulloh [12], [43], [46]. [125]
The appellant places particular emphasis on his plea of guilty and his offer of assistance to the authorities. In regard to the offer of assistance it was not disputed that the offer produced no information of benefit to the police. It was also conceded in submissions to the sentencing judge that any discount to be derived from that offer would be small.
Assistance relating to the investigation of the criminal enterprise in respect of which a person has been convicted can, in appropriate circumstances, have a substantial mitigating effect: A Child v The State of Western Australia [2007] WASCA 285, F v The Queen [2005] WASCA 135, LJP v The State of Western Australia [2010] WASCA 85. However, the size of any discount depends very much on the particular circumstances.
The sentencing principles are well known and are set out in A Child v The State of Western Australia [11] ‑ [13]. A substantial discount is given to an offender who gives useful information or assistance to law enforcement authorities. Where the information or assistance also demonstrates genuine remorse or contrition the discount should be greater. The more useful the information is the greater the discount. Any danger or hardship which the person assisting authorities may be placed in or may undergo as a result of cooperation should be taken into account. Discounts for cooperation can be given even when the information is of limited value (F v The Queen) and sometimes where it is of no value (Barany (2000) 114 A Crim R 426 [23]).
In this case the offer of assistance did not produce any information of value to the authorities. The only mitigatory value was the extent to which the offer indicated the existence of remorse or contrition on the part of the appellant. The learned sentencing judge's assessment was that whilst an offer had been made, the appellant had declined to provide further information when asked. That assessment was not disputed. In these circumstances the offer could only ever attract a very small degree of credit. As to the suggestion that there was a possibility that the information provided by the appellant might be useful at some point in the future, this was a suggestion that did not rise above the level of speculation. This was not a case where there was an undertaking to give future assistance where a quantified reduction was required: s 8(5) Sentencing Act. Nor was there anything to suggest that the appellant was likely to face any danger or hardship as a result of his offer, as the appellant's written submissions properly conceded.
The offer of assistance and meeting with the police was a factor to take into account as indicative of remorse. But in the circumstances it was not a factor that could be expected to have any significant impact on the sentences imposed. It is then necessary to consider whether the total sentence is proportionate to the total offending.
The maximum penalty for the offence of supplying a prohibited drug contrary to s 6(1)(c) of the Misuse of Drugs Act is a fine of $100,000 or imprisonment for 25 years or both: s 34(1) of the Misuse of Drugs Act.
The appellant played a critical role in the sale of significant quantities of methylamphetamine on two separate occasions. The sales were clearly commercial in nature, as the appellant must well have known. Although he did not receive a share of the profits, he played a critical role in the sales. He negotiated the sales, allowed his home to be used for the transactions, handed over the drugs and received the cash payments. The fact that his reward for participation was a small quantity of drugs to feed his own addiction does nothing to mitigate his conduct.
There was nothing in the appellant's personal circumstances that mitigated these offences. In any event personal circumstances carry comparatively less weight in matters of this type where general and personal deterrence are the major sentencing considerations: Tanner v The State of Western Australia [2013] WASCA 142 [196] (Buss JA with whom Martin CJ and Mazza JA agreed).
The only significant mitigating factor was the plea of guilty for which the appellant received the maximum discount. That discount was arguably generous given that the evidence against him was overwhelming and the benefits to the State of any plea were limited by that fact: Abraham v The State of Western Australia [2014] WASCA 151 [55] ‑ [57] (Buss JA, McLure P agreeing).
The appellant referred to a number of cases which it was suggested were comparable. Consideration of the sentences imposed in other cases is relevant for ensuring broad consistency but it does not indicate the limits of sentencing discretion. The cases referred to by the appellant are as follows (in reverse chronological order).
In The State of Western Australia v Tran [2014] WASCA 26 the offender entered fast track pleas of guilty to one count of selling and one count of offering to sell methylamphetamine to another. The amount involved in the first offence was 41 grams at 57% to 62% purity. The second offence involved an offer to sell 3 ounces (ie 84 grams) of methylamphetamine. The offer did not result in a sale of drugs. Following a successful State appeal he was resentenced to 3 years' imprisonment on count 1 and 2 years' imprisonment, partly cumulative on count 2. The total effective sentence imposed was a term of 3 years and 6 months' imprisonment. The total amounts of drugs actually sold in the appellant's case was significantly higher than in Tran.
In Formica v The State of Western Australia [2013] WASCA 237 the appellant pleaded guilty to one count of selling methylamphetamine and one count of possession of methylamphetamine with intent to sell or supply. The two counts involved a total of 83 grams of methylamphetamine of between 52% and 64% purity. The total effective sentence imposed was 5 years' imprisonment. The only significant difference between that case and that of the appellant is the purity, but even that difference was not great. Far from indicating that the appellant's sentence is too high Formica tends to show that it is appropriate. Indeed, Newnes JA noted at [25] in that case that a review of past cases revealed that sentences for possession with intent to sell or supply methylamphetamine involving amounts between 3 grams and 65 grams ranged between 2 years and 5 years. The appellant was convicted of two such charges, involving separate transactions.
In The State of Western Australia v Littlefair [2013] WASCA 177 the offender pleaded guilty to one count of possession of methylamphetamine with intent to sell or supply and was sentenced to 4 years' imprisonment following a successful State appeal. The total amount involved in that case was 96.9 grams with an average purity of 40%. That case involved a single offence which attracted a higher sentence than the sentences for either of the appellant's offences. That sentence was a reflection of the amount of drugs involved and all other relevant factors. In the appellant's case he facilitated two distinct and separate sales.
In Chu v The State of Western Australia [2012] WASCA 135 the appellant pleaded guilty to four counts of selling methylamphetamine, one count of possession of methylamphetamine with intent to sell or supply and one count of supplying one tablet of MDMA. The total amount of methylamphetamine sold or possessed was 227.5 grams and the purity ranged between 52% and 79%. The offender in that case received a total effective sentence of 7 years' imprisonment. The total offending in that case was more serious, but that is reflected in the higher total sentence.

In Jordan v The State of Western Australia [2012] WASCA 163 the appellant pleaded guilty to a number of charges relating to several different types of drugs. He also was charged with possessing illegal firearms and explosives. One of the charges was for possession with intent to sell or supply and involved 101.24 grams of methylamphetamine at 43% to 74% purity. He was sentenced to a term of 4 years' imprisonment on that count. However, the sentence on that count needs to be seen in the context of the total sentence of 8 years and 6 months that the offender received and the reduction for totality that was accorded. Seen in that light there is nothing about that case that is inconsistent with that of the appellant.
In Sabri v The State of Western Australia [2012] WASCA 71 the appellant entered a late plea of guilty to a charge of possession of methylamphetamine with intent to sell or supply. The amount of methylamphetamine was 139.81 grams at 17% to 45% purity. He was sentenced to 4 years' immediate imprisonment. That sentence was ordered to be served cumulatively on a sentence of 2 years 6 months' imprisonment that the offender was serving for another drug offence. The sentence of 4 years was imposed for a single count and was significantly higher than the sentences imposed for either of the offences in this case. That sentence is consistent with sentences imposed in other cases and on the appellant.
In Direen v The State of Western Australia [2010] WASCA 211 the appellant entered very late pleas of guilty to two counts of selling methylamphetamine. The amounts of drugs involved were 13.7 grams at 13% purity and 52.8 grams at 26% purity. He was sentenced to a total of 3 years and 6 months' imprisonment. However, that sentence was reduced due to parity considerations regarding a co‑offender. But for those considerations the sentencing judge would have imposed a total sentence of 4 years and 6 months. The only issue on appeal was whether the disparity was still too much. When the parity factor is removed there is nothing about this case that is inconsistent with that of the appellant.
As I have noted, the cases referred to by the appellant do not support a submission that the total sentence imposed on him is inconsistent with sentences imposed in other cases. Furthermore, there are other recent comparable cases not referred to in the appellant's written submissions which serve to reinforce that conclusion. In particular, I have considered Doherty v The State of Western Australia [2014] WASCA 142, Le v The State of Western Australia [2014] WASCA 120, The State of Western Australia v Hunter [2014] WASCA 87, Stagno v The State of Western Australia [2013] WASCA 166, Ricciardi v The State of Western Australia [2012] WASCA 106 and Karakuyu v The State of Western Australia [2012] WASCA 75.
The total effective sentence imposed in this case is consistent with sentences imposed in comparable cases. The seriousness of the offences entirely justified sentences of imprisonment of the lengths imposed. The sentences are consistent with the offer of cooperation and the plea of guilty being taken into account.

Conclusion

In my view, the ground of appeal has no reasonable prospects of succeeding. In these circumstances the application for leave to appeal should be refused. I would make the following orders:
1.Extension of time granted;
2.Leave to appeal refused;
3.The appeal is dismissed.