Doherty v The State of Western Australia

[2014] WASCA 142

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   DOHERTY -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 142

CORAM:   McLURE P

HALL J

HEARD:   1 JULY 2014

DELIVERED          :   6 AUGUST 2014

FILE NO/S:   CACR 44 of 2014

BETWEEN:   WILLIAM LEONARD DOHERTY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :HERRON DCJ

File No  :IND 1235 of 2013

Catchwords:

Criminal law - Appeal against sentence - Possession of methylamphetamine with intent to sell or supply - Possession of unlicensed firearms - Totality principle - Rehabilitation - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 27(3)

Result:

Extension of time granted
Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr G M Rogers

Respondent:     No appearance

Solicitors:

Appellant:     Gary Rodgers Barrister & Solicitor

Respondent:     Director of Public Prosecutions (WA)

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

Barnes v The State of Western Australia [2004] WASCA 258

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

Le v The State of Western Australia [2014] WASCA 120

Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164

The State of Western Australia v Atherton [2009] WASCA 148

The State of Western Australia v Hunter [2014] WASCA 87

1. McLURE P:  I agree with Hall J.

2. HALL J:  This is an application for an extension of time and for leave to appeal against sentence.

3. The appeal papers were filed one week late due to an oversight on the part of the appellant's counsel.  In an affidavit in support of the application the appellant's counsel frankly concedes that he made an error when he placed an entry into his diary for the last day for filing an appeal.  The delay is relatively short and in the circumstances I would grant the extension of time sought.

4. With regard to the application for leave to appeal against sentence, the appellant was sentenced on 7 February 2014 to a total effective sentence of 5 years and 3 months' imprisonment.  The sentences imposed are reflected in the following table:

Count 1	9 July 2012	Possession of a prohibited drug (MDMA) with intent to sell or supply	12 months' imprisonment
Count 2	9 July 2012	Possession of a prohibited drug (Methylamphetamine) with intent to sell or supply	3 years and 9 months' imprisonment concurrent
Count 3	27 February 2013	Possession of a prohibited drug (Methylamphetamine) with intent to sell or supply	12 months' imprisonment cumulative
Count 4	27 February 2013	Possession of a firearm whilst not being the holder of a licence or permit and whilst in possession of three or more firearms in similar circumstances	6 months' imprisonment cumulative
Count 5	27 February 2013	Possession of a firearm whilst not being the holder of a licence or permit and whilst in possession of three or more firearms in similar circumstances	6 months' imprisonment concurrent

Count 6 27 February 2013 Possession of a firearm whilst not being the holder of a licence or permit and whilst in possession of three or more firearms in similar circumstances 6 months' imprisonment concurrent

1. In essence the appellant contends that the total effective sentence of 5 years and 3 months is disproportionate to the offending conduct as a whole because it fails to reflect the substantial efforts that the appellant had made towards his rehabilitation by the time he was sentenced.  For this reason there is said to have been a breach of the totality principle.  Whilst the grounds also refer to manifest excess, it was not contended that any of the individual sentences was excessive for any reason other than that it failed to reflect the appellant's rehabilitation.

Facts

1. The appellant pleaded guilty to all charges and the facts were not in dispute.

2. On 9 July 2012 police officers executed a search warrant at the appellant's home address in Marangaroo.  In the appellant's bedroom police officers found a carry bag in which were a number of clip seal bags containing methylamphetamine.  The amounts in the clip seal bags ranged in weight between 1.71 grams and 3.62 grams.  Another larger bag contained 57.6 grams of methylamphetamine.  The total quantity of methylamphetamine seized was 95.2 grams.

3. Also located in the carry bag were four bags containing various quantities of MDMA.  The total weight of the MDMA seized was 6.84 grams.

4. On a desk in the bedroom were a number of items indicative of drug dealing.  They included two electronic digital scales, numerous unused clip seal bags, mobile telephones, SIM card packets and notebooks containing names and amounts. 

5. The appellant was arrested and charged with the offences that comprise counts 1 and 2 on the indictment.  He was then released on bail.  Whilst on bail he committed the offences that comprise counts 3 to 6 on the indictment.  The facts in relation to those counts are as follows.

6. On 27 February 2013 police again attended at the appellant's home and executed another search warrant.  On this occasion two clip seal bags containing a total of 16.03 grams of methylamphetamine were located in a bedside drawer in the appellant's bedroom.  In the same location police found $7,000 in cash, a number of unused clip seal bags and a quantity of bulking agent.  Further searches of the premises resulted in the finding of a number of items consistent with drug dealing.  Those items included electronic scales, more clip seal bags, three mobile telephones and a further quantity of cash ($5,420).

7. Police also located a number of firearms.  A Glock 9 mm handgun with a 30 round magazine was found in a bin in the games room.  A 0.357 calibre Smith & Wesson revolver was found in the garage.  A 0.38 Smith & Wesson revolver wrapped in a towel was found inside a bar fridge on the outdoor patio.  The appellant was not the holder of a licence or permit in respect of any of these firearms.

Personal circumstances

1. The appellant was aged 50 at the time of sentencing and had a minor record, including some drug offences for which he had been fined.  He had a stable employment history in the construction industry with no significant periods of unemployment.  According to the pre‑sentence report the appellant had commenced using methylamphetamine two years previously and soon began using the drug on a daily basis.  He said that this caused him to incur a drug debt and that he was then pressured into selling drugs to repay the debt.

2. At sentencing it was accepted on the appellant's behalf that the offences were serious and of a type that ordinarily attracts an immediate term of imprisonment.  However, great emphasis was placed on the fact that in the 12 months he had spent in custody prior to being sentenced he had taken significant steps to rehabilitate himself.  This was said to be reflected in him taking on a role as a peer support person for other prisoners with special needs.  This included prisoners with mental illnesses.  This was noted in the pre‑sentence report which stated that the appellant was the chairperson of a Peer Support Team and plays a role in assisting with issues that arise between prisoners and prison staff.  He also assisted prison officers with facilitating and arranging courses and was employed within the prison in a highly trusted position which involved the care and supervision of mentally ill prisoners.

3. During his remand period the appellant had also completed the Cognitive Brief Intervention Programme.  The programme completion report noted that he 'was a strong contributor to all areas of the programme and displayed leadership in all group activities'. 

4. A number of character references spoke well of the appellant, describing him as kind, caring and generous.  Reference was also made to him being remorseful and making efforts to better himself whilst in prison.

Sentencing remarks

1. The sentencing judge noted that the dealing paraphernalia and the quantity of drugs seized indicated that the appellant was involved in a significant commercial enterprise.  His Honour considered that it was an aggravating factor that the appellant committed further offences of the same type whilst on bail. 

2. His Honour said that the only mitigating factor was that the appellant had pleaded guilty at an early stage.  However, in referring to the appellant's personal circumstances his Honour noted that the appellant had expressed an intention of not returning to illicit substance use and that the pre‑sentence report author felt that the appellant had shown insight and appeared motivated to make the necessary lifestyle changes to reduce the risk of relapse following his release.

3. His Honour also noted that the appellant had shown some remorse for the offending.  However, the appellant maintained he was forced into selling the methylamphetamine because of a drug debt.  The appellant had reported that the drug debt had now been paid and his Honour noted that this might reflect the extent of his drug dealing.  His Honour said that the fact that the appellant may have been forced into selling drugs because of a drug debt was not a mitigating factor and did not lessen his culpability.

4. His Honour referred to the character references tendered on the appellant's behalf, including a character reference from a prison support officer.  He noted that the prison officer had referred to the appellant's participation whilst in prison in relation to various support groups.  His Honour also quoted from a letter from the appellant that referred to the same participation.  His Honour then said:

   Turning to the pre-sentence report dated 26 November 2013 the author of that report recorded you held a position of responsibility within the prison system and regularly assisted - or regularly assists with issues arising between prisoners and prison staff.  You were also employed in a highly trusted position within the prison involving the care and supervision of mentally ill prisoners.  Again, all of that is to your credit.

   During your period of remand you have completed a Cognitive Brief Intervention Programme in which you are reported to have been a strong contributor and displayed leadership qualities.  You were also reported to have displayed an understanding of the link between your substance abuse and offending.  The author of the pre-sentence report was of the opinion you would benefit from a community supervision order which included programme and supervision requirements.

   There is one other factor that is relevant to my determination of the sentence to be imposed on you.  That factor is general deterrence.  General deterrence is an important sentencing consideration in cases of this type.  I must place weight on the need to impose a sentence that is capable of acting as a deterrent to others who might be tempted to engage in the type of conduct that you have engaged in.

   A necessary consequence of giving effect to the sentencing considerations of general deterrence is that less weight must be given to mitigating circumstances that are personal to you.  That is not to say that such mitigating circumstances are irrelevant; they are not.  However, they assume less weight than might otherwise be the case.

Relevant principles

1. The appellant seeks leave to appeal the sentence on the basis that the principle of totality was offended given the strength of the appellant's rehabilitation.  In the appellant's submissions reference was made to manifest excess, but this concept relates to individual sentences and it was accepted that the individual sentences imposed were all within the customary range for offences of this type.  What was submitted was that the total effective sentence failed to reflect that the appellant had taken significant steps towards rehabilitation.

2. 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 all relevant circumstances, including those referable to the appellant personally.

3. Grounds of appeal that claim that the totality principle has been infringed assert implied error.  That is, though no express error is apparent from the reasons of the sentencing judge the result is said to be one that cannot be reconciled with a proper exercise of sentencing discretion.  What must be demonstrated in such cases is that the sentence imposed was unreasonable or plainly unjust.

4. The appellant's written submissions assert that the sentencing judge 'failed to give significant weight' to the positive indications of rehabilitation.  It cannot be said that there was failure to take this factor into account at all since the sentencing judge made specific reference to it.  However, it is very difficult for an appellant to succeed on a ground that alleges that too little weight was given to a particular factor.  That is because sentencing is a discretionary exercise and a failure of that kind will not give rise to an appealable error unless it is so significant as to lead to a conclusion that the sentencing judge failed to exercise the discretion entrusted in the court:  Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26] (Gaudron & Gummow JJ).

5. Any delay between being charged and being sentenced is not, in itself, a mitigating factor.  However, progress towards rehabilitation that occurs in such a period should be taken into account:  Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164 [31] (McLure JA) [62] (Buss JA). Where progress towards rehabilitation has been made this may reduce the need for personal deterrence. However, much will depend upon the extent, quality and effect of the rehabilitative work undertaken.

6. 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 [125]:

   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].

7. Progress towards rehabilitation is a factor personal to an offender.  Personal factors have less weight in regard to drug trafficking offences because of the importance of general deterrence.  Thus, in a case like the present, rehabilitation, whilst not irrelevant, will be of reduced significance:  Barnes v The State of Western Australia [2004] WASCA 258 [34] (McLure J).

8. The maximum penalty for possession of a prohibited drug with intent to sell or supply is 25 years' imprisonment, a fine of $100,000 or both.  The maximum penalty for being in possession of a firearm when not licensed to do so and in circumstances where the person is in possession of three or more such firearms is 10 years' imprisonment.

9. It was not disputed that the individual and total sentences imposed in this case were consistent with those imposed in comparable cases.  That this is so is supported by reference to the recent cases of The State of Western Australia v Hunter [2014] WASCA 87 and Le v The State of Western Australia [2014] WASCA 120 and other cases referred to in those decisions. Some of those cases involved offenders with favourable personal circumstances.

Merits of the application

1. The sentencing judge's characterisation of these offences as serious and as indicating a significant commercial enterprise was clearly correct.  The amounts of drugs involved, particularly on the first occasion, and the existence of scales and other paraphernalia clearly supported a conclusion that the appellant was engaged in significant drug dealing.  This was not a conclusion that the appellant disputed.

2. The fact that the appellant continued to deal in drugs whilst on bail and committed further offences of the same type was a seriously aggravating factor.  It indicated a contempt for the law and a willingness to take the risk of capture and punishment in order to garner further profits from illegal drug dealing.  In these circumstances the need for personal and general deterrence loomed large.

3. The fact that the appellant had accepted responsibility for his conduct, expressed remorse and taken some steps towards his rehabilitation in prison was to his credit.  Of course those efforts had occurred in a prison context and whether they would translate into lasting change on release was yet to be established.  Expressions of remorse and determination to change may well be sincere but they are not uncommon.  In any event, they were matters specifically referred to by the sentencing judge.  It cannot be suggested that these factors were overlooked.  They were matters that should properly have been taken into account but they were very much outweighed by the seriousness of the offending and the importance of general deterrence. 

4. The appellant's submission is that the total effective sentence imposed manifests an implied error because it is not consistent with sufficient credit being given for the appellant's efforts towards rehabilitation.  I cannot accept that argument.  The total sentence imposed was entirely appropriate in all the circumstances, including those personal to the appellant.

5. In my view, neither of the appellant's proposed grounds has a reasonable prospect of success. Accordingly, I would refuse leave to appeal. In those circumstances the appeal would be deemed to be dismissed: s 27(3) Criminal Appeals Act 2004 (WA). I would make the following orders:

   1.Extension of time to appeal granted.

   2.Application for leave to appeal refused.

   3.Appeal dismissed.