Den Ridder v The State of Western Australia
[2022] WASCA 113
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DEN RIDDER -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 113
CORAM: BUSS P
MAZZA JA
HEARD: 22 JULY 2022
DELIVERED : 26 AUGUST 2022
FILE NO/S: CACR 20 of 2022
BETWEEN: RICK JARAD DEN RIDDER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEVENSON DCJ
File Number : IND 798 of 2020
Catchwords:
Criminal law - Application for leave to appeal against sentence - Appellant sentenced to 8 years 6 months' imprisonment for 11 counts relating to the sale or supply of methylamphetamine and cannabis and one count of possessing unlawfully obtained property - Whether the head sentence of 5 years' imprisonment was manifestly excessive - Whether the total effective sentence infringed the first limb of the totality principle
Legislation:
Criminal Code (WA)
Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Baker v The State of Western Australia [2020] WASCA 117
Blasco v The State of Western Australia [2021] WASCA 26
Chuang v The State of Western Australia [2021] WASCA 49
Giangiulio v The State of Western Australia [2022] WASCA 77
Kabambi v The State of Western Australia [2019] WASCA 44
Moodley v The State of Western Australia [2020] WASCA 158
Musulin v The State of Western Australia [2020] WASCA 18
The State of Western Australia v Auckram [2013] WASCA 256
The State of Western Australia v Doyle [2017] WASCA 207
Tirkot v The State of Western Australia [2018] WASCA 41
Watson v The State of Western Australia [2022] WASCA 80
YLT v The State of Western Australia [2020] WASCA 217
JUDGMENT OF THE COURT:
This is an application brought by the appellant, in person, for leave to appeal against sentence.
The appellant was charged in the District Court on indictment with 13 offences, all of which were associated with the appellant's dealing in prohibited drugs. On 15 January 2021, before Sweeney DCJ, the appellant entered pleas of guilty to all counts except counts 3, 6, 9 and 12. Count 12 was later discontinued. On 6 January 2022, six days before his scheduled trial, the appellant pleaded guilty before Barone DCJ to the remaining counts, counts 3, 6 and 9. On 3 March 2022, the appellant was sentenced by Stevenson DCJ, as follows:
| Count | Offence | Provision in the | Maximum penalty | Sentence imposed |
| 1 | Sold a prohibited drug (trafficable quantity of methylamphetamine) | MDA s 6(1)(c), s 34(1)(a) | Life imprisonment | 4 years' imprisonment |
| 2 | Conspired to sell a prohibited drug (methylamphetamine) | MDA s 6(1)(c), s 33(2)(c), s 34(1)(aa) | 25 years' imprisonment | 9 months' imprisonment |
| 3 | Supplied a prohibited drug (methylamphetamine) | MDA s 6(1)(c), s 34(1)(aa) | 25 years' imprisonment | 4 years' imprisonment |
| 4 | Sold a prohibited drug (cannabis) | MDA s 6(1)(c), s 34(1)(aa), s 34(2)(a) | 10 years' imprisonment | 3 months' imprisonment |
| 5 | Supplied a prohibited drug (methylamphetamine) | MDA s 6(1)(c), s 34(1)(aa) | 25 years' imprisonment | 18 months' imprisonment |
| 6 | Supplied a prohibited drug (methylamphetamine) | MDA s 6(1)(c), s 34(1)(aa) | 25 years' imprisonment | 3 years' imprisonment |
| 7 | Supplied a prohibited drug (methylamphetamine) | MDA s 6(1)(c), s 34(1)(aa) | 25 years' imprisonment | 2 years' imprisonment |
| 8 | Supplied a prohibited drug (methylamphetamine) | MDA s 6(1)(c), s 34(1)(aa) | 25 years' imprisonment | 2 years' imprisonment |
| 9 | Offered to sell or supply a prohibited drug (trafficable quantity of methylamphetamine) | MDA s 6(1)(c), s 34(1)(a) | Life imprisonment | 4 years 6 months' imprisonment |
| 10 | Offered to sell or supply a prohibited drug (trafficable quantity of methylamphetamine) | MDA s 6(1)(c), s 34(1)(a) | Life imprisonment | 5 years' imprisonment |
| 11 | Supplied a prohibited drug (methylamphetamine) | MDA s 6(1)(c), s 34(1)(aa) | 25 years' imprisonment | 2 years 3 months' imprisonment |
| 13 | Possessed stolen or unlawfully obtained property | Code s 417(1) | 7 years' imprisonment | 10 months' imprisonment |
His Honour designated the sentence on count 10 as the head sentence and ordered that the sentences on counts 5 and 8 be served cumulatively upon the head sentence. All of the other sentences were ordered to be served concurrently. Thus, the total effective sentence was 8 years 6 months' imprisonment. The appellant was made eligible for parole and the sentences were backdated to commence on 10 September 2020.
In substance, the appellant seeks leave to appeal on two grounds. Firstly, that the sentence of 5 years' imprisonment on count 10 was manifestly excessive. Secondly, that the total effective sentence of 8 years 6 months' imprisonment infringed the first limb of the totality principle.
For the reasons that follow, neither ground has a reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed.
The facts
The facts of the offending were outlined by the prosecutor at the sentencing proceedings.[1] They were accepted by the appellant and incorporated into the sentencing remarks.[2] They may be summarised as follows.
Count 1
[1] ts 29 - 32.
[2] ts 54 - 55.
On 2 June 2019, the appellant received a call from a male associate asking for an 'O' (an ounce, or 28 g, of methylamphetamine), which the appellant agreed to supply. The appellant met the associate near a supermarket in the suburb of Leda. There, the appellant gave the associate 28 g of methylamphetamine in exchange for $5,000.
Count 2
On 6 June 2019, the appellant arranged for John Robert Davidson to supply a female associate with an 'HB' (a half‑ball, or 1.75 g of methylamphetamine) in exchange for $600. The appellant told Mr Davidson that he (the appellant) would obtain the money from the associate and then give it to Mr Davidson at a later date after the transaction was completed.
Count 3
Again on 6 June 2019, the appellant supplied an associate, Daniel Deakin, with 27.2 g of methylamphetamine. At about 9.45 pm, Mr Deakin was arrested at the Mandurah train station in possession of the drug which, on later analysis, was found to be 81% pure.
Count 4
Again on 6 June 2019, the appellant's partner, Nicole Emma Brock, received a call from a female associate. During the call, the appellant offered to supply the associate a half‑ounce of cannabis for $150. A short time later, the associate spoke once again to the appellant, inquiring whether she could instead obtain 'one' (a whole ounce of cannabis) and have the cost added to her bill. The appellant agreed. On 8 June 2019, the associate sent Ms Brock a text message indicating that she was satisfied with the quantity of cannabis that had been supplied to her.
Count 5
On 13 June 2019, the appellant received a call from a male associate. During the call, the appellant agreed to supply the associate with a 'ball' (3.5 g of methylamphetamine).
Count 6
On 14 June 2019, the appellant spoke to a male associate, Nathan Cox. Later that day, Mr Cox attended the appellant's home and purchased 13.4 g of methylamphetamine from him. Mr Cox was observed by police to leave the residence in an Uber, which was subsequently stopped by police in East Rockingham. A search of the vehicle revealed the methylamphetamine which, upon subsequent analysis, was found to be 79% pure.
Count 7
On 21 June 2019, from 9.18 pm onwards, the appellant received a series of calls from a male associate. The appellant agreed to supply this person with a quantity of methylamphetamine. After receiving the methylamphetamine from the appellant, there were further discussions between them about the weight of the methylamphetamine that had been supplied. At the appellant's request, the associate reweighed the methylamphetamine and advised the appellant that he had received 7.12 g of the drug.
Count 8
On 24 June 2019, the appellant received a call from an associate, Marty Drury. Mr Drury asked the appellant to supply him with an ounce of methylamphetamine, which the appellant said he could supply. Mr Drury then changed the quantity to half an ounce. The appellant subsequently supplied Mr Drury with 14 g of methylamphetamine.
Count 9
On 25 June 2019, the appellant and an associate spoke via mobile telephone. The appellant inquired whether the associate (probably Mr Cox) wanted 'a big one' (an ounce of methylamphetamine). He answered, 'Yes, the usual'.
Count 10
Again on 25 June 2019, the appellant received a series of telephone calls from Mr Drury. The appellant agreed to supply Mr Drury with a quantity 'three times what [he] got yesterday',[3] being 42 g (three by 14 g) of methylamphetamine.
Count 11
[3] See count 8.
On 29 June 2019, the appellant received another series of calls from Mr Drury. The appellant agreed to supply Mr Drury with 14 g of methylamphetamine. Mr Drury attended the appellant's home and obtained the drug. A short time later, Mr Drury sent a text message to the appellant stating '137', meaning the drugs supplied weighed 13.7 g.
Count 13
On 10 July 2019, at about 2.30 pm, detectives executed an MDA search warrant at the appellant's home. There, police officers seized $6,260.70 cash.
All of the offences were committed while the appellant was on bail for firearm offences.
The appellant's personal circumstances
The appellant was aged 39 years at the time of sentencing, and 36 years during the period of his offending between 2 June 2019 and 10 July 2019.
The sentencing judge was provided with a report dated 21 May 2019 written by Ms Ali Heron, a counsellor with the Whitehaven Clinic. At the time the report was written, the appellant was participating in an addiction recovery process programme. The report sets out in considerable detail the appellant's personal circumstances, as summarised below.
The appellant was born in Albany. He has three siblings, including a twin sister. The appellant described his upbringing as fairly stable until his early teenage years, although he was, at times, subjected to violence and threats of violence from members of his family.
The appellant began stealing and getting into fights at about the age of 14. It was at this age the appellant first used methylamphetamine. By the time the appellant was 15 he was involved with local gangs. At this point, his family asked him to leave home over his behaviour. By the time the appellant was 19 years old, his addiction to methylamphetamine had become problematic. About a year later, he began selling prohibited drugs to fund his addiction.
The appellant has been in two significant relationships. He has two sons from his first relationship. Both children were removed from their mother's care due to neglect while the appellant was incarcerated. The appellant has a daughter and stepdaughter from his second and current relationship, who were aged four and seven, respectively, at the time of sentencing.
The appellant has a formidable criminal history as an adult that spans 15 pages. It largely reflects his ongoing involvement with methylamphetamine. It includes many convictions for driving under suspension and multiple convictions for possession of a prohibited drug, possession of a prohibited drug with intent to sell or supply, offences involving personal violence, offences involving dishonesty, firearms offences (including possession of a firearm and a prohibited drug or plant) and burglary.
The appellant has served a number of terms of imprisonment since 2007. Given the persistence of his offending, it appears from his record that the appellant has not been deterred by these terms of imprisonment. Of particular relevance to the present case, we note that on 22 March 2018 in the District Court the appellant was sentenced to 18 months' immediate imprisonment for possession of methylamphetamine with intent to sell or supply, and that on 25 November 2011, in the Mandurah Magistrates Court, the appellant was sentenced to 9 months' immediate imprisonment for another such offence.
The report written by Ms Heron shows that the appellant has sought help for his methylamphetamine addiction. However, the fact that he committed the offences the subject of this appeal at or about the time of his involvement in the addiction recovery process programme shows that the appellant is some distance from being rehabilitated.
The appellant is not without support in the community. His Honour received a number of letters of support, primarily from family members.
The sentencing remarks
The sentencing judge said that the only real mitigating factor in the case was the appellant's pleas of guilty.[4] For the offences to which the appellant entered pleas of guilty on 15 January 2021, his Honour gave a discount of 18% pursuant to s 9AA of the Sentencing Act 1995 (WA). For the pleas of guilty entered on 6 January 2022, his Honour gave a s 9AA discount of 8%. In giving these discounts, his Honour noted that the State's case against the appellant was 'very strong',[5] and that the pleas of guilty to counts 3, 6 and 9 came 'very late'.[6]
[4] ts 57.
[5] ts 57.
[6] ts 57.
His Honour found that the appellant was not genuinely remorseful, nor did he have insight into his offending. His Honour referred to the appellant's prior criminal history and observed that the appellant was not a person of prior good character. He had regard to the fact that the appellant was on bail at the time of the commission of the offences.
His Honour noted that some of the offences involved a trafficable quantity of methylamphetamine (counts 1, 9 and 10), to which a maximum penalty of life imprisonment applied. His Honour also had regard to the well‑known principles applicable to the sentencing of offenders convicted of dealing or trafficking in dangerous drugs, which emphasise that the principal sentencing factors are general and personal deterrence.
His Honour observed that no submissions were put to him concerning any issue of parity arising out of those offences committed by the appellant that involved a co‑offender.[7]
[7] ts 60.
After his Honour announced the individual sentences for the offences, he expressly referred to the totality principle in arriving at the total effective sentence of 8 years 6 months' imprisonment.[8]
[8] ts 61.
The appellant's submissions
The appellant's written and oral submissions were succinct and clear. He contends that the individual sentence on count 10 of 5 years' imprisonment was manifestly excessive and that the total effective term of imprisonment of 8 years 6 months infringed the first limb of the totality principle having regard to the outcomes in other cases. He submitted that others convicted of more serious individual offences and in cases involving greater overall criminality received sentences less than those imposed on him.
General principles
The general principles governing appeals contending that error should be inferred on the basis of whether an individual sentence is manifestly excessive (or inadequate) or that a total effective sentence infringes the totality principle are well established. In Kabambi v The State of Western Australia,[9] this court explained the principles as follows:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[9] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
General principles - drug offences
As stated by the sentencing judge, the major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. 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 generally, or within a particular organisation, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.[10]
[10] YLT v The State of Western Australia [2020] WASCA 217 [71].
As this court pointed out in Tirkot v The State of Western Australia,[11] many factors will be relevant in assessing the seriousness of an offence of offering to sell a prohibited drug. Among the factors that will often be relevant are:[12]
(a)the terms of the offer, in particular as to the quantity of a drug, its price, etc;
(b)whether a particular offer is an isolated one or whether it occurs in the context of an ongoing supply of prohibited drugs;
(c)whether, and if so, the extent to which the offer is motivated by reasons of commercial gain or greed;
(d)whether the offeror, at all material times, had the intention to fulfil the offer;
(e)whether the offeror had the capacity to fulfil the offer to supply; and
(f)whether the offeror attempts to fulfil the order; if not, whether any failure to perform was a result of a decision by the person concerned not to supply, or whether it was due to some intervening or extraneous circumstances.
[11] Tirkot v The State of Western Australia [2018] WASCA 41.
[12] Tirkot [53].
Disposition
We will first deal with the allegation that the sentence of 5 years' imprisonment on count 10 is manifestly excessive.
The maximum penalty for the offence of offering to sell or supply a trafficable quantity of methylamphetamine is life imprisonment. A trafficable quantity of methylamphetamine is 28 g. The maximum penalty for this offence and for the offences of possession of a trafficable quantity of methylamphetamine with intent to sell or supply it to another and for selling or supplying a trafficable quantity of methylamphetamine was increased on 18 September 2017 from 25 years' imprisonment and/or a fine of $100,000 to life imprisonment.
Where Parliament increases the maximum penalty for an offence, its new view of the gravity of the offence must be taken into account in deciding upon sentencing outcomes: see The State of Western Australia v Auckram.[13] Generally speaking, sentences for offences for which the maximum penalty has been increased can be expected to increase over time in light of the increase in the maximum penalty. This is not invariably the case because the individual facts and circumstances of a particular case might dictate otherwise.[14]
[13] The State of Western Australia v Auckram [2013] WASCA 256 [122].
[14] Musulin v The State of Western Australia [2020] WASCA 18 [40].
The appellant's submissions with respect to the allegation of manifest excess and, indeed, the allegation that the total effective sentence infringed the totality principle, rely upon the appellant's claim that he has been sentenced more severely for the offences he committed than others who have been sentenced for offences involving quantities of methylamphetamine greater than the 42 g the subject of count 10. The appellant gave no examples of such cases and appeared to base this assertion on the outcomes of unspecified first instance cases he had heard about in prison.
The role comparable cases have to play has been explained in [35] above. Manifest excess or an infringement of the totality principle is not demonstrated merely by a comparison of the outcome of one case with the outcomes of other cases. Fundamentally, every case depends upon its own facts and circumstances. Offences of offering to sell or supply a trafficable quantity of methylamphetamine can vary considerably as to their facts and circumstances. Further, the appellant's focus on the quantity of methylamphetamine is too narrow. As already explained, while the quantity of a prohibited drug is a relevant and important sentencing consideration, it is generally not the chief factor to be taken into account. Moreover, when this court considers comparable cases, the relevant comparable cases are not sentences imposed at first instance. Rather, it is the outcomes of cases decided by this court that are considered.
While this court has considered the sentencing outcomes in a range of cases involving offers to sell or supply a prohibited drug to another (see the cases referred to in Baker v The State of Western Australia,[15] to which can be added Moodley v The State of Western Australia),[16] there are only a small number of such cases that consider whether an individual sentence is manifestly excessive or manifestly inadequate, including The State of Western Australia v Doyle,[17] Tirkot and Chuang v The State of Western Australia.[18] These cases have factual differences from the present case (particularly Chuang) and are of insufficient number to provide much assistance in the present case. Of course, the fact that there are insufficient comparators does not prevent this court from deciding that an individual sentence is manifestly excessive (or manifestly inadequate).
[15] Baker v The State of Western Australia [2020] WASCA 117 [85].
[16] Moodley v The State of Western Australia [2020] WASCA 158.
[17] The State of Western Australia v Doyle [2017] WASCA 207.
[18] Chuang v The State of Western Australia [2021] WASCA 49.
In deciding whether the sentence imposed on count 10 is manifestly excessive, this court is required to take into account not only the quantity of the methylamphetamine involved, but also other features of the offending, including the appellant's role in the commission of the offence, whether the offence was committed for commercial gain and the appellant's personal circumstances.
In the present case, the appellant offered to sell or supply 42 g of methylamphetamine, against the background that he was a dealer in methylamphetamine who had access to substantial quantities of the drug and that he dealt in the drug for profit. There is no reason to doubt that he had the capacity to source the drug and that he intended to fulfil the offer. The seriousness of the offence is aggravated by the fact that he was on bail at the time of the offence.
The only notable mitigation was his plea of guilty for which he was given a discount of 18% under s 9AA of the Sentencing Act. As a consequence of the appellant's prior criminal history, personal deterrence was a particularly important sentencing consideration, in addition, of course, to general deterrence.
It is unnecessary to dwell on the appellant's personal circumstances, other than to say that they were unfavourable to him and show that, despite efforts to rehabilitate himself, his involvement with methylamphetamine appears entrenched.
In our opinion, having regard to all of the relevant facts and circumstances and the sentencing principles to be applied, it is not reasonably arguable that the sentence on count 10 of 5 years' imprisonment was unreasonable or plainly unjust and was therefore manifestly excessive.
We now turn to the contention that the total effective sentence of 8 years 6 months' imprisonment infringed the first limb of the totality principle.
The appellant's offending took place over a period of approximately five weeks. In that time the appellant was engaged in the business of dealing in methylamphetamine and, on one occasion, cannabis. He did so for commercial gain. As the cash the subject of count 13 shows, the appellant was generating a reasonable income from his business. The appellant committed the offences while on bail. It is ironic, to say the least, that this offending occurred at the time or just after he participated in a drug rehabilitation program. Given the period of the offending and its variety, some accumulation of the sentences was necessary.
We will not repeat what we have said about count 10. The quantities of methylamphetamine involved in the commission of counts 1, 3, 6, 8, 10 and 11 were reasonably significant and showed that the appellant had ready access to such quantities, and that his offers to sell or supply methylamphetamine were serious and able to be fulfilled. It cannot be overlooked that the appellant was subject to the higher maximum penalty of life imprisonment in respect of counts 1, 9 and 10.
Since the increase in the maximum penalty referred to earlier in these reasons, only a small number of cases have been decided in which offenders have challenged the total effective sentence imposed for multiple offences which include at least one offence of selling or supplying, or offering to sell or supply, a trafficable quantity of methylamphetamine to another. See Watson v The State of Western Australia,[19] Giangiulio v The State of Western Australia[20] and Blasco v The State of Western Australia.[21] The facts and circumstances of these cases differ widely and do not provide any real assistance in the present case.
[19] Watson v The State of Western Australia [2022] WASCA 80.
[20] Giangiulio v The State of Western Australia [2022] WASCA 77.
[21] Blasco v The State of Western Australia [2021] WASCA 26.
In all the circumstances of the present case, we are satisfied that the first limb of the totality principle has not been infringed. In our opinion, the total effective sentence imposed upon the appellant bore a proper relationship to the overall criminality involved in all of the offences the appellant committed, viewed in their entirety and having regard to all relevant facts and circumstances, including the appellant's personal circumstances, and all relevant sentencing factors.
Leave to appeal should be refused on this ground.
Conclusion and orders
Neither ground of appeal has a reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed. The orders we would make are as follows:
(1)Leave to appeal is refused.
(2)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable Justice Mazza
26 AUGUST 2022
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