Burke v The State of Western Australia
[2007] WASCA 210
•17 OCTOBER 2007
BURKE -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 210
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 210 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:153/2006 | 11 SEPTEMBER 2007 | |
| Coram: | OWEN JA WHEELER JA MILLER JA | 17/10/07 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | MARK DOUGLAS BURKE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law Sentence Drugs Turns on own facts |
Legislation: | Nil |
Case References: | The State of Western Australia v Andela [2006] WASCA 77 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BURKE -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 210 CORAM : OWEN JA
- WHEELER JA
MILLER JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : DEANE DCJ
File No : IND 982 of 2005
Catchwords:
Appeal - Criminal law - Sentence - Drugs - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr L M Levy
Respondent : Ms L D O'Connor
Solicitors:
Appellant : David Manera
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
The State of Western Australia v Andela [2006] WASCA 77
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1 OWEN JA: I have read the reasons which Wheeler JA intends to publish. I agree with those reasons and with the conclusion that the appeal should be dismissed. There is nothing I can usefully add.
2 WHEELER JA: The appellant was convicted of one count of supplying a prohibited drug, namely, MDMA; one count of possession of a prohibited drug, namely MDMA, with intent to sell or supply to another; and one count of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply to another. In relation to the first count, he was sentenced to 3 years and 4 months' imprisonment; in relation to the second, 1 year and 9 months concurrent with count 1; and in relation to count 3, 2 years' imprisonment cumulative upon count 1. The total effective sentence was 5 years and 4 months' imprisonment, with an order that the appellant be eligible for parole. He appeals against that sentence. He had pleaded guilty to counts 2 and 3, but was convicted on count 1 by the jury, after trial. The appellant had also pleaded guilty on a s 32 notice containing one count of not having a motor driver's licence and one of possession of a quantity of methylamphetamine.
3 The relevant circumstances of the offences are as follows. So far as count 3 was concerned, on 22 December 2004, the appellant was driving a red Holden utility at about 6.45 pm when he was stopped by police. The vehicle was searched. A plastic DVD case was located under the driver's seat and it contained three clipseal bags containing a total of 27.89 grams of methylamphetamine of a purity of between 46% and 11%.
4 So far as count 2 was concerned, on the same date, the search of the same vehicle revealed inside the DVD case two plastic clipseal bags containing a total of 200 MDMA or ecstasy tablets, there being 100 in each bag. They contained approximately 49 grams of MDMA in total, of a purity of 32%.
5 So far as count 1 was concerned, on the same day, but earlier in the day, police had been conducting surveillance at the premises of a Mr Lekja. At around 6.30 pm, the appellant's utility was observed parked outside that residence. The appellant got out and approached the front door. He was carrying a backpack. The surveillance officer observed him bend down for one or two minutes and place or appear to place something in the vicinity of a statue by the front door. He left without entering the house. At about 9.00 pm, police executed a search warrant at Mr Lekja's house and located in a desk drawer a package of 300 MDMA tablets found to weigh 73.2 grams and of 33% purity. The scientific evidence was that they and the 200 tablets found in the appellant's vehicle came
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- from a common source. They were packaged in an almost identical manner. A search warrant executed on the appellant's premises found approximately $21,000 in cash under a drawer in his room, and at trial he admitted that it was money which he had in order to purchase drugs.
6 At trial, the appellant gave an account of the way in which the MDMA tablets came to be in Mr Lekja's drawer which the jury must have rejected as false. The first of the s 32 notice offences related to the appellant's driving on 22 December when he did not have a current licence and was disentitled to hold one until, apparently, the following day. The second arose because, when he was searched, some white powder located in his jeans' pocket was, on analysis, found to be methylamphetamine weighing 0.97 of a gram.
7 At his trial, the appellant had given evidence that during the relevant period he suffered from depression and had a substantial amphetamine habit which he was funding by way of drug-dealing. He was, at the time of the offending, 22 years of age. He had had a supportive and relatively uneventful upbringing. He had a supportive family, and there were a number of very supportive references.
8 He had achieved good results at high school and had moved to Melbourne in 1999 to play football. Unfortunately he became ill there and had to return to Perth. In 2003 a relationship in which he was involved ended. It appears that these factors together contributed to his depression. He found employment in the nightclub industry.
9 As his drug use escalated, it appears that, as the psychological report put it, he became "heavily involved in the drug subculture where it is considered normal to use and sell substances". The author of that report suggested that his use of substances was also likely to have interfered with his judgment.
10 Since being charged, he had ceased substance abuse and had attended counselling for depression. He said that he was remorseful and ashamed of his behaviour. In short, this was the not uncommon case of a well brought-up young man with good future prospects who, as a result of some of the vicissitudes of life, had encountered difficulty, had made poor choices as a result, had fallen in with what might be described as "a bad crowd", had found that he was unable to control his drug use and turned to offending to support his expensive habit. Once charged, he realised the stupidity of his behaviour.
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11 The learned sentencing judge referred in detail to the various mitigating factors which I have described. Her Honour described the offending as serious, which it plainly was. She recognised the need to take account of the totality principle, to take account of the fact that the appellant was a first offender and a relatively young man. She took account of the need to give credit to the appellant for his pleas of guilty in relation to counts 2 and 3 and considered that the offer to plead guilty to those counts, although not a fast-track plea, demonstrated remorse and facilitated the course of justice. On the other hand, her Honour quite properly noted that it was also the case in relation to those two counts that the state case was very strong.
12 In relation to count 1, her Honour imposed the sentence to which I have referred. In relation to count 2, she observed that she considered an appropriate starting point would have been 3 years and 4 months' imprisonment, but reduced that by 8 months or 20%, to take account of the plea of guilty, before effecting a further reduction for the transitional provisions. Having regard to the fact that the 500 tablets came from the same source, and the proximity in time of the offending, her Honour properly determined that those two sentences should be served concurrently.
13 In relation to count 3, her Honour considered that the sentence should be cumulative. No doubt that was because it was a different drug. She also noted that there was the potential for that drug to be cut further, thereby potentially increasing its value and increasing the amount which would be made available for distribution in the community. In relation to this count, her Honour considered an appropriate starting point to be one of 3 1/2 years' imprisonment, reduced to 3 years to take account of the plea of guilty. Oddly, that reduction is less than 15%, while the discount for count 2 was 20%. If one looks to the number of months, it is two months less than in respect of count 2. There would appear to be no good reason why the discount should be different in each case. It seems likely that her Honour simply made a mathematical error. Her Honour then noted that the total sentence would be one of 5 years and 4 months.
14 In relation to the s 32 notice, her Honour then imposed additional terms of imprisonment, but taking into account the totality principle, determined that they be served concurrently with the sentences previously imposed.
15 There were, in effect, four issues raised by the grounds of appeal. Ground 1, which was not abandoned, but was not argued, alleged that
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- her Honour erred by failing to have regard to certain mitigatory matters, in relation to count 1 in particular. Those matters can be subdivided into two categories. The first related to the alleged information provided, and admissions made, by the appellant, while the second related to his personal circumstances including matters such as depression and remorse.
16 It is easy to see why that ground was not pressed. So far as the "information" was concerned, the information provided by the appellant was, it appears, that which he gave in evidence at his trial. It was information which was false. Providing information in that way hardly facilitates the course of justice. So far as the various mitigatory factors are concerned, her Honour clearly acknowledged them and had regard to them.
17 Further, when regard is had to standards of sentencing for offences of this kind, the effective sentence in respect of counts 1 and 2 was one of 3 years and 4 months. In order to consider whether that was appropriate, it is necessary to refer only to The State of Western Australia v Andela [2006] WASCA 77. That case involved possession with intent to sell or supply of precisely the same number of tablets of MDMA as are the subject of counts 1 and 2; that is, 500 tablets. Those tablets in Andela had been packaged in five lots of 100. Although it was not proven that Andela knew the number, weight or purity of the tablets, it was inferred from the total number and the packaging that Andela was not dealing at street level but was higher up in the drug-dealing chain. He too had committed the offences to finance his drug habit. He was 21 at the time of the offending, as against this appellant's 22. He too was a first offender. He too had good references and he too had had some difficulties in his life. He, however, had entered a plea of guilty on the fast-track.
18 The sentencing judge in Andela had imposed a term of 2 years' imprisonment, but had suspended it. The Court of Appeal characterised the term of 2 years as "lenient" but held that it should not have been suspended. If one assumed a discount of up to one-third for the fast-tracked plea of guilty, then it would appear that the sentence imposed by the learned sentencing judge in the present case would be in the region of 4 to 6 months in excess of that which the Court of Appeal regarded as "lenient" in the case of Andela. Of course, in the present case, some of the tablets making up the 500 were the subject of a count, in respect of which there had been a plea of guilty. It appears to me that the total effective sentence imposed in respect of counts 1 and 2 was entirely appropriate for offending of this type committed in circumstances where there was significant personal mitigation.
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19 The remaining two issues raised by the grounds of appeal are concerned primarily with count 3. There is a totality issue raised, and it is also suggested that an insufficient discount has been given for the plea of guilty in relation to this count. As I have noted, the latter contention appears to be made out, to the extent that the discount differs from that in relation to count 2 and may well result from a simple mathematical error.
20 The more difficult question is the general totality question. It could not be said that the sentence imposed was disproportionate to the criminality of the overall offending. Nor could it be said that the sentence imposed in respect of count 3 should not have been cumulative. Count 3 involved a different type of drug. Although it was possessed at the same time as the other drugs, its possession was part of a drug selling business of moderate scale, and apparently aimed at a diversity of purchasers. It was appropriate to mark that criminality with a cumulative sentence.
21 However, given the appellant's relative youth and good antecedents, it was a sentence of significant length. It has often been said that it is a serious thing to send a young person to gaol for the first time. Although her Honour's sentencing remarks demonstrate that she was alive to this consideration, it may be arguable that the total sentence was excessive, in the circumstances. Whether it was manifestly excessive, so that this court should interfere, is a question which I consider after I have dealt with the apparent mathematical error.
22 In relation to count 2, as I have noted, her Honour gave a discount for the plea of guilty of 8 months, or 20%. A reduction of 20% from the starting point of 3 1/2 years indicated by her Honour in relation to count 3 would, after the transitional provisions, have given a term of 1 year and 10 months, rounded down to the nearest month. Cumulative upon count 1, that would give a term of 5 years and 2 months. Once an adjustment is made to count 3, as indicated, it seems to me that the most that can be said on behalf of the appellant is that, having regard to his personal circumstances, it would have been open to her Honour to have imposed a somewhat more lenient total effective sentence. However, an effective term of 5 years and 2 months is not one with which I would interfere. It was well within the range of sentences appropriate to offending of this type. Her Honour plainly had regard to all relevant mitigatory factors. Mathematical error aside, I am not persuaded that her discretion miscarried.
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23 I would allow the appeal to the extent only of setting aside the sentence imposed in respect of count 3 and substituting a term of 1 year and 10 months.
24 MILLER JA: I agree with Wheeler JA.
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