Ditri v The State of Western Australia

[2006] WASCA 283

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   DITRI -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 283

CORAM:   WHEELER JA

ROBERTS-SMITH JA
McLURE JA

HEARD:   17 NOVEMBER 2006

DELIVERED          :   22 DECEMBER 2006

FILE NO/S:   CACR 56 of 2006

BETWEEN:   BRENDAN FELIX DITRI

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :O'BRIEN DCJ

File No  :IND BUN 6 of 2006

Catchwords:

Criminal law - Sentencing - Methylamphetamine - Possession with intent to sell or supply - Small quantities but repeated offending

Legislation:

Nil

Result:

Extension of time granted
Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant:     Mr R D Young

Respondent:     Ms J D Whitbread

Solicitors:

Appellant:     Gunning Young

Respondent:     State Director of Public Prosecutions

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

Benter v The Queen [2005] WASCA 245

Chivers v The State of Western Australia [2005] WASCA 97

Duong v The State of Western Australia (2006) 32 WAR 246

Grimwood v The Queen [2002] WASCA 135

Lowndes v The Queen (1999) 195 CLR 665

Markarian v The Queen (2005) 79 ALJR 1048

Moore v The State of Western Australia [2006] WASCA 121

R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998

Samuel v The State of Western Australia [2004] WASCA 154

Wong v The Queen (2001) 207 CLR 584

Case(s) also cited:

Bellissimo (1996) 84 A Crim R 465

Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998

Cameron v The Queen (2002) 209 CLR 339

Collard v The State of Western Australia [2004] WASCA 297

Darwell (1997) 94 A Crim R 35

Dinsdale v The Queen (2000) 202 CLR 321

Jarvis v The Queen (1993) 20 WAR 201

Little v The Queen [2001] WASCA 87

R v Faithfull (2004) 142 A Crim R 554

Radebe v The Queen (2001) 162 FLR 313

Schlenka v The Queen [2004] WASCA 142

1. WHEELER JA:  This is an application for an extension of time and, if the extension is granted, an appeal against a total effective sentence of 40 months' imprisonment imposed on the appellant after he pleaded guilty on 27 February 2006 to 13 counts in relation to methylamphetamine.  Ten counts on the indictment involved offers to sell or supply, two counts were of conspiring with another to supply, and the final count involved supply.  The terms of imprisonment imposed were 20 months in relation to each charge, all concurrent with one another, except that the sentence imposed in relation to count 2 (supply) was ordered to be served cumulatively on count 1 (offering to sell or supply), giving a total effective sentence of 3 years 4 months.  The appellant was made eligible for parole. 

2. There are three grounds of appeal.  Ground 2 is doomed to fail.  It asserts that the learned sentencing Judge erred in failing to specify a discount for the appellant's early plea of guilty.  It is not an error to fail to specify the discount:  Chivers v The State of Western Australia [2005] WASCA 97.

3. Turning to the arguable grounds of appeal, ground 1 alleges that her Honour erred in failing to give any consideration to the possibility of a non‑custodial disposition, or to suspending any period of imprisonment, while ground 3 asserts that the total sentence was manifestly excessive, having regard to the appellant's early plea of guilty, favourable antecedents and the circumstances of the offences (in particular, the "very small amount of drugs involved in each offence").  Portions of the grounds border on misstatement; in particular, her Honour referred to the possibility of a non‑custodial disposition, while dismissing it, and it does not appear to me that the appellant's antecedents could reasonably be described as "favourable", although they were not particularly bad and there were certain relevant mitigating factors.  Before considering those grounds, however, I turn to the circumstances of the offence, the appellant's personal circumstances, and her Honour's sentencing remarks.

4. The offences took place over a period of approximately one month.  Each offence involved a small amount of methylamphetamine, ranging from 0.1 to 0.5 of a gram, in relation to those offences in respect of which quantity was either discussed or ascertained.  In relation to some counts, the amount potentially involved was not clear.  The offences were detected because the appellant's telephone was monitored by police for approximately six weeks, and during that time some 1300 telephone calls and SMS messages were intercepted.  It is not clear how many of those calls were drug‑related, but it was accepted at sentencing that a very substantial number of them related either to the distribution of methylamphetamine, or to sourcing methylamphetamine to distribute.  Of the offences on the indictment, on six occasions it was the appellant who contacted the co‑conspirator, offering to supply the co‑conspirator with methylamphetamine. 

5. It was asserted by the appellant that the offences involved the supply of methylamphetamine to "a small number of acquaintances, all of whom he knew to be drug users".  The State does not dispute that assertion, but contends that that is not mitigatory, since the majority of small‑scale drug dealers do supply drugs to a regular customer base, and the appellant, in any event, was not able to control what the buyer might or might not have done with the methylamphetamine. 

6. At the time of the offences, the appellant was 28 years of age.  He had a "relatively" minor prior record, but it is to be observed that it involves not only driving offences, but prior cannabis offences and two assaults occasioning bodily harm, one in 2005 and one in 1996.  He had entered an early plea of guilty.  It was accepted by the sentencing Judge that he had been an amphetamine user, but had stopped using the drug, which her Honour considered to be a "huge step in your rehabilitation".  There were a number of references tendered on his behalf, which demonstrated that he had leadership potential (having been the head boy at his former school), that he had sporting ability, and that he was regarded by those who had employed him as a reliable and hard worker.  There was nothing of particular relevance in his family situation.

7. In sentencing the appellant, her Honour the learned sentencing Judge referred to all relevant factors.  She noted that the maximum penalty for offering to sell or supply methylamphetamine was 25 years' imprisonment and/or a fine of $100,000 and that for the conspiracy offences, the maximum penalty was 20 years' imprisonment and/or a fine of $75,000.  She referred to all of the personal circumstances to which I have referred, in greater detail than I have described them, to the content of a pre‑sentence report, and to the circumstances of the offending.  She also made the following observations:

   " ... when it comes to sentencing people for these types of offences, deterrence and protection of the community are the principal considerations and matters which are personal to the offender ... are usually of limited significance when it comes to sentencing."

8. After referring to the destructive potential of amphetamines, her Honour went on to say:

   "So deterrence is a weighty sentencing consideration and the sentence must reflect those matters [that is, the seriousness of amphetamine offences] that I have referred to.  So it is a rare situation where a sentence other than imprisonment is imposed, particularly given, in your case, the number of offences and the time over which the offences were committed."

9. The remarks quoted above are in accordance with authority.  General and personal deterrence are weighty considerations in sentencing for drug trafficking offences, and the weight to be given to personal matters such as a person's good antecedents and prospects of rehabilitation, are of reduced significance:  Duong v The State of Western Australia (2006) 32 WAR 246 at [48] per Pullin JA and Samuel v The State of Western Australia [2004] WASCA 154 at [23] and [28] per Roberts‑Smith J.

10. It is correct, as the appellant's written submissions note, that her Honour did not expressly refer to the possibility of a suspended sentence of imprisonment.  The passage I have quoted above refers simply to the rarity of a sentence "other than imprisonment".  However, the authorities to which I have referred make it plain that a sentence of other than immediate imprisonment is rare in cases involving the distribution of any significant amount of methylamphetamine, or its distribution on any significant number of occasions.  Against the background of the authorities to which I have referred, and in circumstances where counsel for the appellant had expressly put to her Honour that a term of immediate imprisonment might not be the only sentencing option, it seems to me plain that, in referring to a sentence of other than "imprisonment" as being rare, her Honour was intending to refer to the rarity of a disposition other than immediate imprisonment. 

11. It is not, of course, necessary for a sentencing Judge to refer to each of the sentencing options adumbrated in s 39 of the Sentencing Act1995 (WA): Samuel at [31] ‑ [33] per Roberts‑Smith J. Notwithstanding that she did not expressly refer to it, I would not accept that her Honour failed to give "any consideration" to the possibility of a non‑custodial disposition, or to suspending any period of imprisonment. Having regard to the number of offences (even if involving small amounts on each occasion) and to the appellant's personal circumstances as I have described them, it is my view that her Honour would have erred had she imposed, as the ground of appeal appears to suggest, a non‑custodial disposition such as an intensive supervision order.

12. There remains the question of whether the sentence of 40 months' imprisonment which was imposed was manifestly excessive, either because it was too long a term of imprisonment, or because her Honour erred in not determining that suspension of the term which she imposed was appropriate.  The factors to which the appellant points are the early plea of guilty, the appellant's favourable antecedents, and the circumstances of the offences. 

13. Taking those factors in turn, the early plea of guilty is, of itself, not remarkable.  The appellant's antecedents did contain matters which were favourable.  The authorities to which I have referred above, however, make plain the limited weight which can be given to circumstances of that kind.  Further, while the appellant's antecedents contained favourable matters, they were not wholly favourable, and there was nothing which one could describe as exceptionally favourable in them. 

14. So far as the small quantity of drug involved on each occasion is concerned, this Court has dealt recently with the approach to be taken where there is repeated and persistent or prolific offending, by the distribution of relatively small quantities of methylamphetamine on repeated occasions.  In Moore v The State of Western Australia [2006] WASCA 121, in reasons with which both Steytler P and McLure JA agreed, I made the following observations:

    "16Turning to the grounds which, in broad, assert that too much emphasis was given by his Honour to the number of offences and not enough to the plea of guilty and the personal circumstances, I would begin by observing that this was a difficult sentencing exercise, in the sense that it arose from a very significant number of offences, in circumstances where it was not possible to work out what quantity of drugs was involved in each.  The more usual allegation of selling or supplying, or of possession with intent to sell or supply, arises from an offender's possession, on a single occasion, of a single quantity of drug.  In those cases, the purity and weight of the drug will often give rise to an inference about the scale of the offender's operation and the offender's level in the distribution enterprise, or alternatively there will be some admissions or some surrounding circumstances from which matters of that kind may be deduced.  However, the Court is not aware, in the usual case, of how many telephone calls, spread over how many weeks or months, will be necessary in order to dispose of that quantity of drug.  It is therefore very difficult from reading cases of the more usual kind to gain a sense of how to translate standards of sentencing set in those cases to the situation where the amount of activity involved in the drug‑dealing enterprise is very clear, but the actual amount of drug distributed is not. 

    17It is important in a case such as the present to recognise that a sentencing Judge will always have but limited information, and that, in cases involving the distribution of drugs, no two cases will ever be precisely comparable.  It is important also, however, to ensure that there is no distortion of the sentencing process which might result in a distributor at a high level in a distribution hierarchy, who happens to be caught with a quantity of drug on one occasion, to be treated leniently by comparison with the very low level distributor who, as in this case, may as a result of surveillance be observed to engage in a very large number of transactions.  Complicating that latter observation, of course, is the overriding proposition that an offender always falls to be sentenced only for the offences of which he or she has been convicted.  In that sense, an offender is sentenced not for his or her role or knowledge, or place in a hierarchy, but for a particular dealing with a particular drug at a particular time.  Against that background, I turn to the sentences imposed on the appellants."

15. Moore's case involved two offenders, Moore and Despotakis.  Despotakis had been convicted of some 38 counts involving sale or supply, or offering to sell or supply, methylamphetamine, while Moore was convicted of 10 counts relating to the drug.  The quantities appear to have been somewhat larger on each occasion than the quantities in which the present appellant dealt, being in the vicinity of 1.5 to 3.5 grams in general.  Each received a sentence of 16 months' imprisonment in respect of each count, with five of those terms being made cumulative in the case of Despotakis (resulting in 6 years and 8 months in total), and three being made cumulative in the case of Moore (resulting in 4 years in total).  Those sentences were imposed subsequent to the transitional provisions. 

The background to the offending was that the indictment resulted from telephone surveillance over a period of approximately five months monitoring in excess of 13,000 telephone calls, about 80 per cent of which related to methylamphetamine.

1. After a review of cases which might be regarded as the most appropriate comparators, in Moore's case, I described those total terms of imprisonment in each case as "perhaps severe", but not as lying outside the range of a sound sentencing discretion.  Moore is plainly the most appropriate of the comparators so far as the appellant is concerned.  She was convicted in relation to 10 counts, as compared to his 13, but I would accept that each of those counts represented a larger quantity of the drug.  Like the appellant, Moore had taken steps to rehabilitate herself, although, unlike the appellant, she had taken part in an organised programme, which the sentencing Judge had described as "rigorous".  She did not have references of the kind available to the appellant, but had had what the sentencing Judge described as a childhood of "great hardship".  In all of the circumstances, it seems to me that the 3 years and 4 months' total sentence imposed upon this appellant should be regarded, like the 4 years imposed upon Moore, as "perhaps severe", having regard to all the relevant circumstances, but I am unable to regard it as outside the range of a sound sentencing discretion, having regard to the considerations to which I referred in Moore's case.

2. The delay in this case has not been very lengthy, and is largely explained by an affidavit sworn by the appellant's solicitor.  I would grant an extension of time, but dismiss the appeal.

3. ROBERTS-SMITH JA:  I agree with Wheeler JA and would make the following additional brief remarks.

4. An appeal against sentence is not simply an opportunity to seek to persuade three Judges of Appeal that they should impose a different sentence to that imposed by the primary Judge.

5. Lowndes v The Queen (1999) 195 CLR 665 at 671 ‑ 672 is authority for the proposition that an appellate court may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from that in which the sentencing Judge exercised his or her discretion. It must be shown by the appellant that the court at first instance failed to properly exercise its discretion by imposing a sentence that falls outside the range of a sound exercise of the sentencing discretion.

1. Notwithstanding these offences may be described as "street level drug dealing" individually involving small amounts or "deals" of methylamphetamine, they were serious offences. 

2. As the High Court made clear in Wong v The Queen (2001) 207 CLR 584, it would be an error of principle to regard the quantity and purity of a prohibited drug invariably as the primary determinant of the seriousness of an offence. That is because there are many conflicting and contradictory elements which bear upon sentencing an offender and all must be taken into account, as must considerations of proportionality.

3. So it is that the prolific and prolonged nature of the appellant's drug dealing, whether for commercial gain or to support his own addiction, is significant because of the damage to the community caused by such activity. 

4. Prolific small‑scale street drug dealers play a vital role in the distribution of drugs in the community and should be sentenced accordingly:

   "There are those who carry out the final role of obtaining the drug from someone higher in the chain of distribution and then selling it on the streets.  Persons in this latter category play a part which is as essential to the distribution as any other participant in the chain of distribution … The culpability of those in this category may not be seen as great as those higher in the chain of distribution because the profits of those higher would be greater and the risk of detection less.  This does not detract from the fact that their culpability remains high by reason of the essential part they are playing.  It precludes the description that their offending is at the bottom end of the scale … Normally the term could not apply to a person in possession of electronic scales and a telephone making him readily available to persons wishing to purchase the drug."  (R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October (1998) at 11 per Pidgeon J (with whom Ipp and Wallwork JJ agreed)).

5. The sentencing Judge correctly characterised the nature of the appellant's offending.  Her Honour described it as a serious course of conduct and the appellant as a low‑level street dealer for profit, whose distribution activities possessed quite a deal of organisation.

6. Of course it is true that general deterrence does not have to be given primacy in every case, but in the circumstances of the appellant's offending here, her Honour was correct to regard it as a weighty sentencing consideration and the case as one in which the mitigating features personal to the appellant were of limited significance. 

7. In his submission, counsel for the appellant postulates a mathematical construct involving notional "starting points" before and after application of the transitional provisions of the 2003 amendments to the Sentencing Act 1995 (WA) and quantification of possible discounts for the pleas of guilty, to present an argument that having regard to the small amounts and values of the drugs involved and the appellant's antecedents, a "starting point" of 6 years 8 months was not warranted.

1. That submission is misconceived and fallacious.

2. The mathematical approach of subtracting specific amounts for particular mitigating factors has been criticised by the High court in Wong (supra) and Markarian v The Queen (2005) 79 ALJR 1048. It is an improper fetter on the exercise of the sentencing discretion and is based on the inaccurate assumption that there is a single correct sentence. The appellant must establish that the sentence is plainly unjust or unreasonable and the steps by which that sentence is arrived at (in a mathematical sense) are irrelevant (see Benter v The Queen [2005] WASCA 245 at [23] per McLure JA (with whom Roberts‑Smith JA agreed).

3. The point was explained by Murray J (with whom Steytler J, as his Honour then was, and Miller J agreed) in Grimwood v The Queen [2002] WASCA 135 at [17] ‑ [19]:

   "17     To my mind, the argument fails for at least two reasons.  In the first place, the process of taking a proportion expressed as a percentage of a notional starting point, even one articulated by the sentencing Judge, and endeavouring to demonstrate that the sentence imposed is manifestly excessive having regard to the percentage figure, is an illusory process because the so-called 'starting point' is not the sentence, the adequacy or proportionality of which the appellate court is required to measure so that the appeal will succeed if it can be demonstrated that the exercise of sentencing discretion has miscarried because the sentence finally imposed is manifestly excessive.

18Secondly, in my opinion, although this Court has observed from time to time, including in Miles at 521, that the substantial discount required to be given by the law (Sentencing Act 1995 (WA) s 8(2)) has in fact been able to be seen to be in the order of from 20 to 25 per cent up to 30 to 35 per cent, depending upon the circumstances, it has never been suggested, and in my respectful opinion rightly so, that it is an appropriate way for an appellate court to consider the adequacy of a sentence, to allocate periods of time or percentage points applied to a starting point for the purpose of deciding whether the sentence imposed is manifestly excessive or inadequate: see also Cameron v The Queen [2002] WASCA 81 per Miller J, with whom Murray and Steytler JJ agreed, at pars [16] - [19].

19That is because, to put it shortly, as did the majority of the High Court in Pearce v The Queen (1998) 194 CLR 610 at 624 [46], 'Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision.' The attempt to measure the size of the discount diverts the appellate court from the essential task of determining whether the sentencing discretion has miscarried because the Judge has made some error of principle or because, even though error is not particularly identifiable, it is demonstrated because the final result is manifestly excessive or inadequate …"

1. I would respectfully agree with those observations.

2. McLURE JA:  I agree with both Wheeler JA and Roberts-Smith JA.