Evans v The State of Western Australia

[2017] WASCA 225

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   EVANS -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 225

CORAM:   BUSS P

MAZZA JA

HEARD:   21 NOVEMBER 2017

DELIVERED          :   6 DECEMBER 2017

FILE NO/S:   CACR 171 of 2017

BETWEEN:   JAY NORMAN EVANS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :O'NEAL DCJ

File No  :IND 553 of 2014, IND 179 of 2017

Catchwords:

Criminal law - Application for leave to appeal against sentence - Manufacture and attempt to manufacture a prohibited drug - Possession of a prohibited drug with intent to sell or supply - Methylamphetamine - Whether total effective sentence infringed the first limb of the totality principle

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(b), s 33(1)

Result:

Leave to appeal refused
Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     No appearance

Solicitors:

Appellant:     Lawley Legal

Respondent:     Director of Public Prosecutions (WA)

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

Bomford v The State of Western Australia [2013] WASCA 153

Brady v The Queen [2003] WASCA 154

Dooling v The State of Western Australia [2012] WASCA 95

Lovett v The State of Western Australia [2013] WASCA 78

Lowe v The State of Western Australia [2015] WASCA 83

Paparone v The Queen [2000] WASCA 127; (2000) 112 A Crim R 190

Skinner v The State of Western Australia [2012] WASCA 99

Tai v The State of Western Australia [2016] WASCA 234

Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465

1. JUDGMENT OF THE COURT:    This is an application for leave to appeal against sentences imposed in the District Court by O'Neal DCJ on 4 August 2017. 

2. The appellant was charged with four drug offences contained in two indictments. Indictment 553 of 2014 (the first indictment) alleged that on 27 September 2012 at Byford the appellant manufactured a prohibited drug, namely methylamphetamine, contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA) (MDA) (count 1). On the same date and at the same place it was alleged that the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) MDA (count 2). It was also alleged that on 3 January 2013 at Roleystone the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another (count 3).

3. Indictment 179 of 2017 (the second indictment) alleged that on 23 February 2015 at Bedfordale the appellant attempted to manufacture a prohibited drug, namely methylamphetamine, contrary to s 6(1)(b) read with s 33(1) MDA.

4. The maximum penalty for all these offences is 25 years' imprisonment and/or a fine of $100,000.

5. The appellant was sentenced as follows:

Indictment 553 of 2014
Count 1	3 years 4 months' immediate imprisonment (reduced from 3 years 6 months for time spent in custody)
Count 2	2 years 10 months' immediate imprisonment
Count 3	1 years 8 months' immediate imprisonment
Indictment 179 of 2017	3 years and 2 months' immediate imprisonment

1. His Honour ordered that the sentences on count 1 and count 3 in the first indictment be served cumulatively with each other and cumulatively with the sentence imposed for the offence in the second indictment.  Accordingly, the total effective sentence imposed upon the appellant was 8 years 2 months' imprisonment.  The sentence was backdated to commence on 17 August 2016 and the appellant was made eligible for parole. 

2. There is only one proposed ground of appeal.  It alleges that the total effective sentence infringed the first limb of the totality principle.  None of the individual sentences are challenged. 

3. For the reasons that follow, we are of the opinion that the proposed ground of appeal has no reasonable prospect of succeeding, leave to appeal should be refused and the appeal must be taken to have been dismissed.

The facts

1. The facts of the offending were admitted.[1]  The facts of the offences in the first indictment are these.   On 27 September 2012, the appellant drove to an address in Byford.  At that address police executed a search warrant.  In the course of the search the appellant himself was searched.  $953 cash was located in his pocket and a further $660 cash was located in his wallet. 

   [1] ts 34.

2. The police then searched the appellant's car.  In the boot they located two 10‑litre jerry cans each containing a biphasic liquid.  In the upper layer of the liquid in each jerry can was ephedrine and methylamphetamine.  In the lower layer, traces of ephedrine and methylamphetamine were detected.  The total quantity of methylamphetamine in the two jerry cans was 27.19 g.  Also located were laboratory apparatus and chemicals which chemists later said constituted a clandestine drug laboratory by which methylamphetamine had been manufactured using the Birch reduction method (colloquially known as the 'Nazi method').  Ephedrine and methylamphetamine were detected on some of the equipment found by the police (count 1). 

3. A search of the inside of the appellant's vehicle located a small plastic container in a bag in the driver's side footwell.  Inside the container was a clipseal bag which contained 29.4 g of methylamphetamine with a purity of approximately 59%.  Police also found a set of scales on which methylamphetamine was later detected and a large quantity of clipseal bags (count 2). 

4. The appellant was arrested and later granted bail.  On 3 January 2013, police officers executed a search warrant at the appellant's home in Roleystone.  The appellant was seen by the police to enter a shed for a short period of time and then reappear.   When the police searched the shed they located a container which appeared to have been thrown against a wall inside the shed.  Inside the container were several clipseal bags which, on later analysis, proved to contain a total of 5.37 g of methylamphetamine, 2.72 g of which was found to be 52% pure.  The police also searched the appellant's bedroom and located a box on his dressing table, inside of which were three small clipseal bags which contained a total of 4.97 g of methylamphetamine.  The police also located a clipseal bag containing $1,000 in cash and a small set of digital scales on which methylamphetamine was detected.  The total weight of methylamphetamine the subject of count 3 was 10.34 g.[2] 

   [2] ts 33.

5. The appellant was once again released on bail after committing count 3.  He absconded from bail and while at large he committed the offence the subject of the second indictment.  On 23 February 2015, police officers attended some bushland in Bedfordale.  There they found items consistent with the clandestine manufacture or attempted manufacture of methylamphetamine.  A forensic examination of items at the scene led to the appellant's DNA being discovered on some gloves.  On 13 May 2016, police officers executed a search warrant at the appellant's home in Roleystone.  There they found items consistent with the manufacture of methylamphetamine, including packaging similar to that found at the laboratory site.  An examination of several electronic devices located in the appellant's bedroom revealed numerous documents providing instructions on how to manufacture methylamphetamine.  On 17 August 2016, the appellant was arrested and charged with the offence contained in the second indictment.

6. Eventually the appellant entered pleas of guilty to all of the charges.  The pleas in respect of the offences in the first indictment were not entered at an early stage in the proceedings.  The plea in respect of the offence in the second indictment was a fast‑track plea of guilty. 

The appellant's personal circumstances

1. At the time he was sentenced, the appellant was 36 years of age.[3]  The appellant grew up in a stable family.  He has two young children with his current partner.  After leaving school, the appellant completed an apprenticeship and became a qualified diesel mechanic.  After the breakup of his first marriage he turned to methylamphetamine and, although there have been some periods of abstinence, he developed a significant dependency on the drug.

   [3] ts 53.

2. The appellant has a substantial history of prior offending, and cannot be said to be a person of good character.  Significantly, on 23 December 2005, the appellant was convicted in the Armadale Magistrates Court of possession of an unspecified drug with intent to sell or supply it to another, for which he was fined $2,000.  Then, on 19 December 2008, he was sentenced in the District Court to a total effective sentence of 3 years 6 months' imprisonment with eligibility for parole for two counts of possession of methylamphetamine with intent to sell or supply the drug to another.

3. The learned sentencing judge was provided with a number of expert reports in relation to the appellant.  He has no serious or treatable mental health issue.

The sentencing remarks

1. As the proposed ground of appeal makes no allegation of express error, it is unnecessary to summarise the sentencing remarks in detail.  His Honour noted these aggravating circumstances:

   1.Count 3 and the count the subject of the second indictment were each committed while the appellant was on bail.

   2.There was a commercial element to much if not all of the offending.

   3.The 'sheer persistence' of the offending.

2. The only significant mitigating factor was the appellant's pleas of guilty. His Honour gave a discount for the pleas of guilty entered in respect of the first indictment of 12.5% pursuant to s 9AA of the Sentencing Act 1995 (WA). As the plea of guilty for the offence in the second indictment was entered at the first reasonable opportunity, his Honour gave a discount of 20% for that plea.

3. In light of the appellant's criminal history, his Honour found that the offending demonstrated a continuing attitude of disobedience of the law and that retribution, deterrence and the protection of society were factors that warranted greater prominence.[4] 

   [4] ts 56.

4. In fixing the total effective sentence, his Honour expressly had regard to both limbs of the totality principle.[5] 

   [5] ts 59.

General principles

1. The proposed ground of appeal asserts an inferred error.  The general principles governing appeals of this nature are well established.  This court can intervene only if the appellant demonstrates that the end result is so unreasonable or unjust that we conclude that a substantial wrong has occurred.  In other words, this court cannot substitute its own opinion for that of the sentencing court merely because we would have exercised the sentencing discretion differently. 

2. 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, viewed in their entirety and having regard to all relevant facts and circumstances including those referable to the offender personally. 

3. In undertaking this assessment it is relevant to have regard to the total effective sentences imposed in comparable cases, but bearing in mind that the range of sentences customarily imposed does not establish the range of a sound exercise of the sentencing discretion in the particular case.  Comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, taking into account 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.  In the end, each case must be determined on its own facts and circumstances. 

Disposition

1. With respect to offences of the type committed by the appellant, the dominant sentencing considerations are general and personal deterrence.  In some cases personal deterrence is a matter of particular importance.  This is one such case.  While the appellant cannot be punished again for his prior offences or receive a sentence which is disproportionate, his criminal history shows that the offending was far from uncharacteristic and when viewed in the context of his past offending is indicative of a continuing attitude of disobedience to the law such that retribution, deterrence and the protection of society are important sentencing considerations.  His Honour took this approach and, in our respectful view, it was well open for him to do so.  In these circumstances a more severe penalty was warranted.[6]

   [6] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465.

2. The appellant cited a number of cases said to be comparable:  Paparone v The Queen;[7] Brady v The Queen;[8] Dooling v The State of Western Australia;[9] Skinner v The State of Western Australia;[10] Lovett v The State of Western Australia;[11] Bomford v The State of Western Australia;[12] Lowe v The State of Western Australia[13] and Tai v The State of Western Australia.[14]

   [7] Paparone v The Queen [2000] WASCA 127; (2000) 112 A Crim R 190.

   [8] Brady v The Queen [2003] WASCA 154.

   [9] Dooling v The State of Western Australia [2012] WASCA 95.

   [10] Skinner v The State of Western Australia [2012] WASCA 99.

   [11] Lovett v The State of Western Australia [2013] WASCA 78.

   [12] Bomford v The State of Western Australia [2013] WASCA 153.

   [13] Lowe v The State of Western Australia [2015] WASCA 83.

   [14] Tai v The State of Western Australia [2016] WASCA 234.

3. It is unnecessary to examine the facts and details of each of these cases.  They all have features sufficiently different from the present case that make them inapt comparators.  For example, Bomford and Lovett were cases involving only one count of manufacturing or attempting to manufacture methylamphetamine.  Paparone involved an offender who pleaded guilty at an early stage and was treated as a first offender.  In Lowe the offender was an aider rather than a principal in relation to one of two counts on which he was sentenced.  In Dooling the offender was sentenced as an aider rather than a principal.  In Skinner the offender was sentenced for offences involving the manufacture or attempted manufacture of methylamphetamine on the basis that there was no element of commerciality in his efforts to produce methylamphetamine.

4. The appellant's overall criminality was high, particularly having regard to the persistence and commerciality of the offending.  Apart from the pleas of guilty, there was very little mitigation. 

5. Counsel for the appellant said in oral argument that at the heart of the proposed ground of appeal was the sentencing judge's decision to accumulate the sentence for the offence in the second indictment with the sentences imposed for counts 1 and 3 in the first indictment.  It was submitted that this sentence should have been made concurrent.  We do not accept this submission.  The offending the subject of the second indictment was separate in time and place to the offending in the first indictment  It was particularly serious because it was committed while the appellant was in effect a fugitive from justice, having breached bail.  In order to reflect its seriousness, it warranted a separate and additional punishment.

6. Having regard to all relevant sentencing principles, the total effective sentence imposed in the present case bore a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to all the circumstances of the case including those referable to the appellant personally.  The proposed ground does not have a reasonable prospect of success.

Conclusion and orders

1. As the proposed ground of appeal has no reasonable prospect of success, leave to appeal should be refused and the appeal must be taken to have been dismissed.  The orders of the court will be as follows:

   1.Leave to appeal is refused.

   2.The appeal is dismissed.