Formica v The State of Western Australia
[2013] WASCA 237
•15 OCTOBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FORMICA -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 237
CORAM: NEWNES JA
MAZZA JA
HEARD: 5 SEPTEMBER 2013
DELIVERED : 15 OCTOBER 2013
FILE NO/S: CACR 117 of 2013
BETWEEN: MATHEW GARRY FORMICA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :EATON DCJ
File No :IND 69 of 2013
Catchwords:
Criminal law - Sentencing - Appeal against sentence - Sale of methylamphetamine and possession with intent to sell or supply - Total 83g of 52% to 64% purity - Plea of guilty - Total effective sentence 5 years' imprisonment
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: No appearance
Case(s) referred to in judgment(s):
Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49
Cant v The State of Western Australia [2009] WASCA 188
Chu v State of Western Australia [2012] WASCA 135
Dao v The State of Western Australia [2007] WASCA 237
House v The King [1936] HCA 40; (1936) 55 CLR 499
Karakuyu v The State of Western Australia [2012] WASCA 75
Nguyen v The State of Western Australia [2009] WASCA 81
Ricciardi v The State of Western Australia [2012] WASCA 106
Rigney v The State of Western Australia [2008] WASCA 96
Roffey v The State of Western Australia [2007] WASCA 246
Wilson v The State of Western Australia [2010] WASCA 82
NEWNES JA: This is an application for leave to appeal against sentence.
The appellant pleaded guilty in the District Court to one count of selling methylamphetamine, and one count of possession of methylamphetamine with intent to sell or supply. The appellant also pleaded guilty to four charges on a notice under s 32 of the Sentencing Act 1995 (WA). On 14 May 2013, the appellant was sentenced by Eaton DCJ to a total effective sentence of 5 years' immediate imprisonment, with eligibility for parole.
The appellant seeks leave to appeal on the ground that the total effective sentence infringed the first limb of the totality principle.
Background
Count 1
On 30 December 2011, the appellant met an associate at a carpark in Noranda. The appellant got into the associate's vehicle where he sold him 55 grams of methylamphetamine for $25,000. The methylamphetamine was in two packages. The first package contained 27.7 g of methylamphetamine at 52 % purity and the second contained 27.3 g of methylamphetamine at 64 % purity.
Count 2
On 2 February 2012, police executed a search warrant at the appellant's home in Morley. They found a clip seal bag containing methylamphetamine concealed in the backyard of the house. The bag contained approximately 28 g of methylamphetamine with a purity of 60%.
The two counts therefore involved a total quantity of 83 g of methylamphetamine at a purity ranging from 52% to 64%.
The offences on the s 32 notice
The charges on the s 32 notice involved two charges of possessing or using a prohibited drug, one charge of possessing a utensil used in connection with smoking or the manufacture of a prohibited drug plant, and one charge of possession of ammunition for a firearm without a licence or permit. They arose out of the same search at the Morley property.
In the course of the search, the police found three small clip seal bags in the appellant's bedroom containing a total of 0.1 g of methylamphetamine and a fourth bag containing a further 0.1 g of methylamphetamine (charge 1). The police also found approximately 1 g of cannabis in two clip seal bags (charge 2). Two glass smoking implements containing traces of methylamphetamine were found in the drawers of a television cabinet (charge 3), and a single round of .22 calibre ammunition was found in a drawer of a dressing table (charge 4).
The sentencing remarks
The sentencing judge noted that the appellant was 26 years old. At the time of sentencing, he was in a relationship with a supportive partner who has a job as a relief teacher. The appellant completed year 12 at school and went on to study at TAFE. Although he did not finish any of his TAFE qualifications, at age 18 he obtained a security licence and by age 21 was working in various security positions.
The appellant began using methylamphetamine at the age of 18 but ceased using it after about 12 months. He relapsed into use of the drug when he lost his security licence in 2009 following a number of minor convictions. The appellant has been unemployed since that time. Following the loss of his security licence, the appellant's use of methylamphetamine began to escalate and he began dealing in drugs. His Honour commented that the appellant's subsequent convictions, in 2010, of possessing a controlled weapon, disorderly behaviour and two counts of assault indicated that things were going wrong in the appellant's life.
The sentencing judge observed that the fairly large quantities and the high level of purity of the drugs involved in the offending indicated that the appellant was more than a street level dealer and was higher up in the chain of distribution in what was effectively a commercial operation.
The sentencing judge noted that the appellant's plea of guilty had been entered at the first reasonable opportunity and his Honour reduced the sentence he would otherwise have imposed by 25%, pursuant to s 9AA of the Sentencing Act.
His Honour imposed the following sentences:
| Offence | Sentence imposed | Maximum sentence |
| Count 1: Sold a prohibited drug (methylamphetamine) | 3 years' imprisonment (head sentence) | 25 years' imprisonment or $100,000 fine or both |
| Count 2: Possessed a prohibited drug with intention to sell or supply (methylamphetamine) | 2 years' imprisonment (cumulative) | 25 years' imprisonment or $100,000 fine or both |
| Charge 1 (s 32 notice): Possession or use of prohibited drug (methylamphetamine) | 2 months' imprisonment (concurrent) | 2 years' imprisonment or $2,000 fine or both |
| Charge 2 (s 32 notice): Possession or use of prohibited drug (cannabis) | 1 month imprisonment (concurrent) | 2 years' imprisonment or $2,000 fine or both |
| Charge 3 (s 32 notice): Possession of utensil used in connection with smoking or the manufacture of a prohibited drug plant | 1 month imprisonment (concurrent) | 3 years' imprisonment or $3,000 fine or both |
| Charge 4 (s 32 notice): Possession of ammunition without a licence | $50 fine | 3 years' imprisonment or $12,000 fine or both |
The total effective sentence was therefore a term of 5 years' imprisonment. The appellant was made eligible for parole.
The proposed ground of appeal
The sole ground of appeal is that the total effective sentence infringed the first limb of the totality principle.
Disposition of the application for leave to appeal
The first limb of the totality principle requires a judge who is sentencing an offender for multiple offences to ensure that the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [26]. In respect of offences of the present kind, it is well established, however, that the dominant sentencing considerations include general deterrence and the protection of the community, and that factors personal to the offender have diminished weight.
An appellate court cannot interfere with a sentence merely because it would have exercised the sentencing discretion differently to the sentencing judge. It can only do so if a material error on the part of the sentencing judge is shown. A contention that a sentencing judge infringed the totality principle involves an allegation that error is to be inferred from the result. In such a case, it is necessary to show that the sentence was so unreasonable or unjust that the appellate court is compelled to the conclusion that, although no express error has been identified, a substantial wrong has nevertheless occurred: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505; Wilson v The State of Western Australia [2010] WASCA 82 [2].
Whether or not a sentence infringes the totality principle must, of course, depend upon the particular facts and circumstances of the case. No two cases are the same and in considering the sentences imposed in other cases it must be borne in mind that there will often be significant differences in the circumstances of the offending and the offenders. However, while bearing in mind the limitations inherent in doing so, it is necessary to have regard to sentences imposed in other cases for offending of a similar nature in an endeavour to achieve broad consistency in sentencing. In considering sentences in other cases for drug offences, relevant variables include the type, amount and purity of the drug in question and whether the offending was part of a commercial enterprise: Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 [12] .
The appellant referred to a number of cases in support of the appeal, namely Rigney v The State of Western Australia [2008] WASCA 96; Ricciardi v The State of Western Australia [2012] WASCA 106; Dao v The State of Western Australia [2007] WASCA 237; Nguyen v The State of Western Australia [2009] WASCA 81; and Chu v State of Western Australia [2012] WASCA 135.
In Rigney, the offender pleaded guilty to two counts of possession of methylamphetamine with intent to supply, one count involving an amount of 82.7 g and the other an amount of 11.07 g, a total of 93.77 g, with a purity ranging between 25% and 51%. The offender also pleaded guilty to two charges on a s 32 notice, one of possession of ammunition and one of possession of cannabis with intent to sell or supply. He was sentenced to a total of 6 years' imprisonment on the drug offences and 3 months' imprisonment on each of the offences on the s 32 notice, the latter sentences to be served concurrently with the sentence on the drug offences. An appeal against the total effective sentence of 6 years' imprisonment was dismissed.
In Ricciardi, the offender pleaded guilty to one count of possession, with intent to sell or supply, of 104 g of methylamphetamine with a purity varying between 23% and 24%. He also pleaded guilty to one count of being in possession of an unlicensed firearm, the identification number of which had been removed and its design altered, contrary to the Firearms Act 1973 (WA). An appeal against a total effective sentence of 6 years' imprisonment, consisting of cumulative terms of 5 years' imprisonment for the drug offence and 1 year's imprisonment for the firearms offence, was dismissed.
In Dao, the offender pleaded guilty to one count of possession, with intent to sell or supply, of 56 g of heroin with a purity of 59% and one count of possession, with intent to sell or supply, of 119.2 g of methylamphetamine with a purity of 49%. The offender was transporting the drugs from Sydney to Perth for others in order to discharge gambling debts. An appeal against a total effective sentence of 6 years' imprisonment was dismissed.
In Nguyen, the offender pleaded guilty to one count of possession, with intent to sell or supply, of 138.8 g of methylamphetamine with a purity ranging from 52% to 55% and one count of possession, with intent to sell or supply, of 55.8 g of heroin with a purity of 59%. He was also convicted after trial on one count of possession of MDMA. An appeal against a total effective sentence of 6 years' imprisonment was dismissed.
In Chu, the offender pleaded guilty to four counts of selling methylamphetamine, on various dates, in amounts of 14 g with a purity of 52%, 28 g with a purity of 79%, 28.3 g with a purity of 65%, and 55.6 g with a purity ranging from 70% to 78%. He also pleaded guilty to one count of possession, with intent to sell or supply, of 101.6 g of methylamphetamine with a purity ranging between 23% and 81%, and one count of supplying one tablet of MDMA. The offender was sentenced to a total effective sentence of 7 years' imprisonment. An appeal against the sentences imposed on three of the counts on the grounds that they were manifestly excessive was dismissed. There was no appeal on totality grounds. The court went on to say, however, that the total effective sentence of 7 years' imprisonment did not infringe the totality principle.
I have also considered a number of other cases, including Bosworth; Karakuyu v The State of Western Australia [2012] WASCA 75; Wilson v The State of Western Australia [2010] WASCA 82 and Cant v The State of Western Australia [2009] WASCA 188. In Bosworth, Miller JA analysed a number of previous cases involving possession of methylamphetamine with intent to sell or supply, concluding that in cases involving amounts from 3 g to 65 g the sentences ranged between 2 and 5 years.
While inevitably there are differences in the circumstances of the various cases referred to, there is nothing in them which might suggest that a total effective sentence of 5 years' imprisonment did not appropriately reflect the total criminality involved in the offending in this case. The appellant's offending was serious. He was dealing in quite substantial quantities of methylamphetamine with a high level of purity. As the sentencing judge observed, this indicated that he was not a street level dealer but was involved in what was effectively a commercial operation at a higher level. The fact that his involvement was apparently, at least in part, for the purpose of paying drug debts does not alter the fact that he was involved in commercial drug trafficking. The only significant mitigating factor was the appellant's early plea of guilty, which the sentencing judge took into account.
Having regard to the circumstances of the case and to sentences customarily imposed for offences of this nature, in my view it is clear that the total effective sentence could not be regarded as disproportionate to the overall criminality involved in the offending. The appeal has no reasonable prospect of success.
Conclusion
I would refuse leave to appeal, with the result that the appeal is dismissed.
MAZZA JA: I agree with Newnes JA.
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