Cant v The State of Western Australia

[2009] WASCA 188

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   CANT -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 188

CORAM:   OWEN JA

McLURE JA
NEWNES JA

HEARD:   6 OCTOBER 2009

DELIVERED          :   3 NOVEMBER 2009

FILE NO/S:   CACR 140 of 2008

BETWEEN:   IAN LESLIE CANT

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :GOETZE DCJ

File No  :IND 1176 of 2008

Catchwords:

Sentencing - Misuse of Drugs Act 1981 (WA) - Possession of prohibited drug with intent to sell or supply - 69 g of methylamphetamine at 21 % purity - Sentence of 4 years - Whether sentence manifestly excessive - Whether parity with co­offender - Respective circumstances of appellant and co­offender

Legislation:

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

Result:

Leave to appeal refused

Category:    B

Representation:

Counsel:

Appellant:     Mr M R Gunning

Respondent:     Mr D Dempster

Solicitors:

Appellant:     Gunning Barristers & Solicitors

Respondent:     Director of Public Prosecutions (WA)

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

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

Chan v The Queen (1989) 38 A Crim R 337

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

'I' (a child) v The State of Western Australia [2006] WASCA 9

Kezkiropoulos v The Queen [2002] WASCA 352

Lowe v The Queen (1984) 154 CLR 606

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Marchesano v The Queen [2000] WASCA 225

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

1. JUDGMENT OF THE COURT: The appellant seeks leave to appeal against a sentence of 4 years' imprisonment imposed upon him following his conviction on one count of possession 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). On 28 April 2008 Miller JA ordered that the application for leave be heard together with the appeal.

2. At about 6.40 pm on 20 March 2008 the appellant was the sole occupant of a Subaru motor vehicle located in Kishorn Street, Mount Pleasant.  Police officers apprehended the appellant in relation to other matters and the appellant informed them that he had a package in the pocket of his shorts containing a quantity of methylamphetamine.  The appellant was found to have on him a bag containing approximately 69 grams of methylamphetamine at a purity of 21 %.  The appellant admitted that the substance was methylamphetamine and that it was his intention to supply it to a third party.  The appellant pleaded guilty on the fast track system. 

3. At the time of the offence the appellant was 37 years old and was in full‑time employment.  He was living at home with his mother whom he assisted with the care of his older brother who suffers from schizophrenia.  He has a 4‑year‑old daughter from a relationship which broke down in approximately October 2007.  From about that time to April 2008 the appellant and the parents of the child's mother shared custody, but since April 2008 the child has been in the custody of her mother with the appellant having access on weekends. 

4. The appellant has a prior conviction for possession of amphetamines, for which he was fined $400.  He also has convictions for possession of cannabis and possession of a smoking utensil, and for a number of traffic offences.  The appellant had been using amphetamines for two years or thereabouts prior to his apprehension for this offence.

5. Following his arrest, the appellant told the police that he would probably have taken $100 ‑ $200 from the proceeds of the sale of the drug and that he may have added a cutting agent to it to make extra money.

Sentencing remarks

1. In his sentencing remarks, the sentencing judge noted that the offence involved a considerable quantity of methylamphetamine at a high level of purity and concluded that on the facts the appellant fell into the category of 'a low to mid‑range dealer'.  His Honour took into account the matters in mitigation put to him by counsel for the appellant but observed that in an offence of this nature matters in mitigation personal to the appellant do not carry the same weight as they might do in other cases. 

2. The sentencing judge allowed a discount of 25 % for the appellant's early plea and reduced the sentence by reason of the transitional provisions.  His Honour imposed a term of imprisonment of 4 years.  He ordered that the appellant be eligible for parole after 2 years.  It appears that in arriving at a term of 4 years the 'starting point' was 8 years' imprisonment.

The co‑offender

1. The methylamphetamine had been supplied to the appellant by one Nardone.  Nardone was charged with having sold the methylamphetamine to the appellant and he was also charged with having in his possession methylamphetamine with intent to sell or supply it.  The methylamphetamine in the second count was an amount of 376 grams of between 24 % and 26 % purity.  It was found by police when they searched Nardone's home after apprehending the appellant.

2. Nardone was sentenced in the District Court by Kennedy CJDC on 30 October 2008.  Kennedy CJDC was aware of the sentence imposed on this appellant, noting in her sentencing remarks that the appellant was 37 years old and had a record in the Magistrates Court, including for possession of drugs.  Nardone was 24 years of age and had no previous convictions involving drugs.  He has suffered from Type 1 diabetes from the age of 12.  Kennedy CJDC referred in her sentencing remarks to the effect the diabetes had had on Nardone as a child, affecting his sense of self‑worth and leading to depression and his use of methylamphetamine.  Her Honour observed that Nardone's diabetes would require continuing self‑management.  Her Honour also noted that Nardone had endeavoured to assist the police, with the result that he had been assaulted and his father's motor vehicle damaged by third parties. 

3. Kennedy CJDC considered that the starting point on the first count was 7 years' imprisonment.  After allowing for the transitional provisions and the fast track plea, her Honour sentenced Nardone to 3 1/2 years' imprisonment.  On the second count her Honour considered that the starting point was 9 years.  After the same deduction, Nardone was sentenced to 4 1/2 years to commence after he had served 6 months of the sentence on count 1.  The total effective sentence was 5 years, with 3 years to be served before being eligible for parole.

Grounds of appeal

1. There are two grounds of appeal.  They are as follows:

   GROUND 1

   The sentence of 4 years' imprisonment imposed upon the appellant was manifestly excessive given:

   1.The appellant's fast track plea of guilty;

   2.The circumstances of the offence;

   3.Matters personal to the appellant.

   GROUND 2

   The sentence imposed upon the appellant was manifestly excessive when compared to the sentence imposed upon the appellant's co‑offender Nardone who was involved in the same drug transaction.  The appellant has been left with a justifiable sense of grievance that his sentence was too harsh.

Appellant's submissions

1. It was submitted on behalf of the appellant that a sentence of 4 years was toward the top end of the range for what was described by the sentencing judge as a 'low to mid‑range dealer'.  Counsel for the appellant referred to Bosworth v The State of Western Australia [2007] WASCA 144, a case involving 84.17 grams of methylamphetamine with a purity of 24.08 %, where Miller AJA (as his Honour then was) concluded that, in cases involving amounts of methylamphetamine between 3 grams and 65 grams, sentences ordinarily range, after allowing for the operation of the transitional provisions, between 2 and 5 years' imprisonment [41]. Steytler P and McLure JA held that the sentence of 5 years and 10 months was within the sound discretionary range. Miller AJA would have reduced the sentence to 4 years and 4 months.

2. It was submitted that in Bosworth the appellant was dealing for profit in a far more entrenched way than the current appellant.  In this case, the transaction was an isolated one for little financial gain, the appellant being a 'go between' between the supplier on the one hand and the purchaser on the other.

3. It was submitted on the second ground of appeal that there was manifest disparity between the sentence the appellant had received and that received by his co‑offender, Nardone, who had supplied the methylamphetamine to the appellant. 

4. Nardone was sentenced on a fast track plea to 3 1/2 years' imprisonment for having sold the methylamphetamine to the appellant.  The sentencing judge had taken the 'starting point' as 7 years, compared with 8 years in the appellant's case. 

5. Counsel for the appellant submitted that Nardone had supplied the appellant and was clearly higher up the chain in terms of drug distribution.  The appellant's role was simply as a go between to facilitate arrangements involving (among others) Nardone and the appellant's brother.  He was to pass the package that he had obtained from Nardone on to his brother (after skimming a small amount of the drugs).  His brother would, in turn, pass the package on to another person.  Money would be handed to the appellant who would hand it back to Nardone.  Counsel submitted that the personal factors referred to by Kennedy CJDC were of limited weight in a case such as this and there were significant factors in mitigation for both Nardone and the appellant.  There was no reason why the appellant's sentence should be greater than Nardone's. 

Ground 1 - was the sentence manifestly excessive?

1. The principles to be applied in respect of this ground of appeal are well‑established.  An appellate court may not interfere merely because it would have imposed a sentence different to that of the sentencing judge; it may interfere only where it is shown that the sentencing judge has failed properly to exercise his or her discretion:  Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. If the result is unreasonable or unjust then error may be inferred: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [3], [22], [58].

2. In determining whether a sentence is manifestly excessive it must be viewed in the light of the maximum sentence prescribed for the offence, the standards of sentencing usually observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of offences of that type, and the personal circumstances of the offender:  Chan v The Queen (1989) 38 A Crim R 337, 342.

3. In the present case, the maximum sentence for an offence of this kind is one of imprisonment for a term of 25 years or a fine of $100,000 or both.  The courts have repeatedly said that, except in exceptional circumstances, a term of imprisonment will be imposed for drug trafficking:  see The State of Western Australia v Andela [2006] WASCA 77 [16] ‑ [17]; Bosworth [41]. In view of the significant weight given to deterrence in the case of drug offences, mitigating circumstances that are personal to the applicant have less weight then they might have in other cases: Marchesano v The Queen [2000] WASCA 225 [41]; Kezkiropoulos v The Queen [2002] WASCA 352 [15].

4. In his sentencing remarks, whilst he described the appellant as being a low to mid‑range dealer, the sentencing judge observed that the appellant had admitted he may have added a cutting agent to the drugs to make extra money.  His Honour also observed that the offence did not involve what he described as 'the low end of dealing' as the drugs could be cut down in their quantity to make at least double the amount.  It is apparent from his sentencing remarks that, in arriving at the sentence he did, the sentencing judge had regard to the matters put in mitigation put on the appellant's behalf.

5. The sentence is, as counsel for the Crown acknowledged, at the higher end of the range but the offence involved a substantial quantity of methylamphetamine at quite a high level of purity. 

6. In our opinion, it has not been shown that the sentence was manifestly excessive.  This ground of appeal must fail.

Ground 2 - parity

1. The general principle of parity of sentencing between offenders is set out in the oft‑cited passage of Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606:

   The true position in my opinion may be briefly stated as follows.  It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account (609).

2. It is not, however, sufficient simply to find disparity.  It must be shown that 'the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done' (610). 

3. In 'I' (a child) v The State of Western Australia [2006] WASCA 9, Steytler P (with whom McLure JA agreed) observed:

   [I]f there are factors which support different treatment as between co‑offenders, whether because of different degrees of culpability or differences in their circumstances, then, of course, it will be appropriate to treat them differently … In such a case the difference in sentence, if it is a reasonable consequence of the different factors, can give rise to no justifiable sense of grievance [65].

4. It was submitted by the State that the question of parity required the appellant's sentence to be compared with the total effective sentence of Nardone.  We do not agree.  It is apparent from the remarks of the Kennedy CJDC that the application of the totality principle did not affect Nardone's sentence on the charge that he supplied the methylamphetamine to the appellant.  Her Honour had regard to the totality principle by directing that the sentence on the second count commence 6 months after the sentence on the first count.  The sentences to be compared for the purposes of parity are the sentence of 4 years' imprisonment imposed on the appellant and the sentence of 3 1/2 years' imprisonment imposed on Nardone on the first count. 

5. In our opinion, there are significant differences between the circumstances of the appellant and Nardone.  Nardone is relatively young at 24 years of age, he suffers from diabetes which Kennedy CJDC accepted had contributed to his drug addiction and consequent offending, and he has no prior convictions involving drugs.  He also endeavoured to assist police at some personal cost.  The appellant is 37 years of age and has prior convictions for offences involving drugs.

6. When those factors are taken into account, we do not consider that the difference between the sentence of 4 years' imprisonment imposed on the appellant on the one hand and the sentence of 3 1/2 years' imprisonment imposed on Nardone on the other is such as to give rise to a justifiable sense of grievance on the part of the appellant or to give the appearance that justice has not been done.  This ground of appeal must fail. 

Conclusion

1. We would refuse leave to appeal.