Gallagher v The State of Western Australia

[2019] WASCA 108

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   GALLAGHER -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 108

CORAM:   BUSS P

MAZZA JA

MITCHELL JA

HEARD:   15 JULY 2019

DELIVERED          :   7 AUGUST 2019

FILE NO/S:   CACR 229 of 2018

BETWEEN:   CORY EDWARD GALLAGHER

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   LEVY DCJ

File Number             :   IND 24 of 2018, IND 1167 of 2018

Catchwords:

Criminal law - Sentencing - Possession of prohibited drugs with intent to sell or supply to another - Stealing as a servant - Whether sentencing judge took into account indicated pleas of guilty to drug offences - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)(a)
Criminal Code (WA), s 383(7), s 552
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(1)
Sentencing Act 1995 (WA), s 9AA

Result:

Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant	:	Mr A J Robson
Respondent	:	Mr B M Murray

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	The Director Of Public Prosecutions (WA)

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

Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1

Anderson v The State of Western Australia [No 3] [2014] WASCA 190

Carlucci v The State of Western Australia [2019] WASCA 37

Evans v The State of Western Australia [2019] WASCA 73

Fenton v The State of Western Australia [2015] WASCA 255

Jneid v The State of Western Australia [2018] WASCA 67

Kirby v The State of Western Australia [2016] WASCA 199

McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121

Pflug v The State of Western Australia [2018] WASCA 65

Roffey v The State of Western Australia [2007] WASCA 246

JUDGMENT OF THE COURT:

Summary

1. The appellant was sentenced to a total effective sentence of 2 years 8 months' immediate imprisonment for a series of drug offences, as well as a series of stealing offences committed while on bail for the drug offences.  At his second appearance in the Magistrates Court for the drug offences, the appellant indicated that he would plead guilty to those offences.  The plea of guilty was formally entered about 2 months later.

2. The appellant appeals against his sentences. He contends that the sentencing judge, when giving a discount under s 9AA of the Sentencing Act 1995 (WA) for the drug offences, erred by failing to have regard to the point at which the appellant indicated he would plead guilty. That ground is established, so that it is necessary for this court to consider, afresh and for itself, the appropriate sentences. However, having regard to all the circumstances and the relevant sentencing principles, we are not of the opinion that any different sentence should have been imposed. The appeal must therefore be dismissed.

Background

1. On 9 November 2018, the appellant was sentenced, on his pleas of guilty, to a total effective sentence of 2 years 8 months' immediate imprisonment in respect of the following drug and stealing offences:

Count	Offence	Quantity	Section	Maximum penalty	Sentence	Cumulative /Concurrent
Indictment 24 of 2018 (Drug offences)
1	Attempted possession of a prohibited drug with intent to sell or supply (cocaine)	4.98 g	Misuse of Drugs Act 1981 (WA) s 6(1)(a), s 33(1)	25 years	10 months	Concurrent
2	Attempted possession of a prohibited drug with intent to sell or supply (MDMA)	6.93 g	Misuse of Drugs Act 1981 (WA) s 6(1)(a), s 33(1)	25 years	10 months	Concurrent
3	Possession of a prohibited drug with intent to sell or supply (cocaine)	10.28 g	Misuse of Drugs Act 1981 (WA) s 6(1)(a)	25 years	14 months	Head sentence
Indictment 1167 of 2018 (Stealing offences)
1	Stealing as a servant	$671.00	Criminal Code (WA) s 378(7)	10 years	4 months	Concurrent
2	Attempted stealing as a servant	$1,155.00	Criminal Code (WA) s 378(7), s 552	5 years	4 months	Concurrent
3	Stealing as a servant	$105.77	Criminal Code (WA) s 378(7)	10 years	2 months	Concurrent
4	Stealing as a servant	$3,949.58	Criminal Code (WA) s 378(7)	10 years	8 months	Concurrent
5	Stealing as a servant	$3,949.58	Criminal Code (WA) s 378(7)	10 years	8 months	Concurrent
6	Stealing as a servant	$161.81	Criminal Code (WA) s 378(7)	10 years	2 months	Concurrent
7	Stealing as a servant	$6,631.82	Criminal Code (WA) s 378(7)	10 years	8 months	Concurrent
8	Stealing as a servant	$5,290.70	Criminal Code (WA) s 378(7)	10 years	8 months	Concurrent
9	Stealing as a servant	$5,290.70	Criminal Code (WA) s 378(7)	10 years	8 months	Concurrent
10	Stealing as a servant	$15,872.11	Criminal Code (WA) s 378(7)	10 years	18 months	Cumulative
11	Stealing as a servant	$11,922.53	Criminal Code (WA) s 378(7)	10 years	12 months	Concurrent
12	Attempted stealing as a servant	$5,290.70	Criminal Code (WA) s 378(7), s 552	5 years	6 months	Concurrent
Total Effective Sentence  2 years 8 months

The appellant was made eligible for parole.

Drug offences

1. The drug offences were committed on 21 September 2017.  On 19 September 2017, police intercepted an Australia Post parcel addressed to the appellant's address.  The parcel contained 6.93 g of MDMA and 4.98 g of cocaine.  A controlled delivery of the parcel was made on 21 September 2017.  The appellant's wife collected the parcel from their mailbox.  At about 12.30 pm, police executed a search warrant at the premises.  At about 12.45 pm, the appellant arrived at the address and was placed under arrest.  The unopened parcel was located in the garage at the address.  A laptop computer in the appellant's vehicle contained material relating to the purchase of drugs on the 'dark web', including a recent order for 7 g of MDMA and 5 g of cocaine.  The appellant also declared three quantities of cocaine in the vehicle, weighing a total of 10.28 g, which were the subject of count 3.  The appellant intended to retain half of the drugs for his own use and supply the other half to a co-purchaser of the drugs.

Stealing offences

1. The stealing offences occurred on various dates between 22 December 2017 and 8 February 2018, while the appellant was on bail for the drug offences.  The appellant was employed as a technical sales representative by ACC Industrial Pty Ltd. 

2. In respect of counts 1 - 3 and 6, the appellant altered invoices issued by ACC Industrial to its customers by substituting his own bank account details for those of the company's account. 

3. In respect of counts 4 ‑ 5 and 7 ‑ 12, the appellant altered invoices issued by a supplier to ACC Industrial by substituting his own bank account details for those of the supplier. 

4. The total amount stolen was $53,845.60.  The attempted stealing offences related to invoices that had been issued and altered but not paid by the customer in the case of count 2, and not paid by ACC Industrial in the case of count 12. 

5. The total amount the appellant sought to obtain (including the amounts actually stolen) was $60,291.30. 

6. The offending had a significant reputational and financial impact on the company, and an emotional and psychological impact on its proprietor.  The sentencing judge noted that the offending had some degree of sophistication and deception, and there clearly was some degree of significant premeditation.

Personal circumstances

1. The appellant was 39 years old at the date of sentence.  He was married with two young children, and had an 18‑year‑old son from an earlier relationship with whom he had no contact.  He had a good employment history, and had almost completed a Bachelor degree in mechanical engineering.  He had gambling and substance abuse problems which contributed to the offending.  He had taken steps to address these problems, including a self-referral to Cyrenian House by December 2017, and successful participation in the Drug Court program after his release on bail for the drug offences.  By 13 July 2018, he was assessed as not having outstanding substance abuse treatment needs.  He had not been convicted of any offences committed prior to 21 September 2017.  The appellant was genuinely remorseful for his offending. 

2. The appellant's incarceration has impacted on his wife's study due to her lack of support in caring for their two young children.  His absence also imposes hardship on his children, and financial and emotional strain on his family. 

Ground 1: Discount for plea of guilty

1. The appellant's first ground of appeal contends that:

   There was a miscarriage of justice in that the learned sentencing Judge was not made aware, for the purposes of determining the appropriate discount to be applied pursuant to s 9AA of the Sentencing Act1995 (WA), that the appellant had indicated pleas of guilty to the offences on IND 24 of 2018 approximately two months before those pleas were formally entered.

2. On 6 June 2019, the court granted the appellant leave to appeal on ground 1, on the understanding that by that ground the appellant contends that the sentencing judge erred in fact and law by:

   (a)failing to find that the appellant indicated he would plead guilty to the drug offences at the first reasonable opportunity, within the meaning of s 9AA(4)(b) of the Sentencing Act; and

   (b)sentencing the appellant on the basis that he could not be allowed the maximum discount under s 9AA of 25% for the drug offences (ts 65).

3. Under s 9AA(4) of the Sentencing Act, a reduction of a head sentence under that section must not exceed 25%, and can only be by 25% where the offender 'pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity' (emphasis added).

4. According to the committal report, the appellant's first appearance on the drug offences was on 17 October 2017.  He next appeared on 13 November 2017 and was remanded to the Drug Court on indicated pleas of guilty to those offences.  After appearances in the Drug Court on 21 and 28 November 2017, on 8 January 2018 the appellant was committed for sentence on his 'fast track' pleas of guilty.

5. The committal report was before the sentencing judge, who appears to have been referred to it in the course of sentencing submissions.[1]  The State submitted that the pleas were early, but not made at the first reasonable opportunity.  The sentencing judge ultimately allowed a discount of 22% on all counts for pleas of guilty 'at a very early opportunity' notwithstanding that the cases against the appellant were 'relatively strong'.[2]  In doing so, his Honour observed:[3]

   I am of the view that I cannot allow you the maximum discount of 25 per cent for your pleas of guilty.

   [1] Sentencing ts 54 - 57.

   [2] Sentencing ts 65 - 66.

   [3] Sentencing ts 65.

6. The sentencing judge appears to have reached this conclusion by reference to the time when the appellant formally pleaded guilty to the drug offences.  His Honour does not appear to have considered the point at which the appellant indicated that he would plead guilty.  That indication, given at the second appearance, was made at the first reasonable opportunity, only 53 days after the appellant was charged with the drug offences. 

7. The State accepts that, as the sentencing judge did not have regard to the indicated pleas of guilty to the drugs charges, an error has occurred which enlivens this court's jurisdiction to resentence the appellant.  However, the State submits that, in all the circumstances, no different sentence should have been imposed.

8. The State's concession as to error by the sentencing judge should be accepted.  It is then necessary for this court to consider whether a different sentence should have been imposed. 

Ground 2: Error in not suspending sentences

1. It is therefore unnecessary to determine ground 2 (on which the question of leave was referred to the hearing of the appeal), which contends that the sentencing judge erred in failing to suspend the sentences he imposed.  In any event, it follows, from our consideration below of whether a suspended or conditionally suspended term of imprisonment should be imposed, that we see no merit in ground 2.  Leave to appeal should be refused on this ground.

Should a different sentence have been imposed

1. This court may allow an appeal against sentence if, in its opinion, a different sentence should have been imposed.[4]  Where an error of principle has been established, this court must consider afresh the sentence which, in its view, ought to have been imposed.  It conducts this review in respect of the whole of the single sentencing decision, rather than merely the component in respect of which error has been identified.[5]

   [4] Section 31(4)(a) of the Criminal Appeals Act 2004 (WA).

   [5] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [8] - [9].

2. The maximum penalties for the offences of which the appellant was convicted are noted above. 

3. As noted above, the appellant indicated that he would plead guilty to the drug offences at the first reasonable opportunity.  However, the case against him was strong, which tends to reduce the benefits to the State[6] resulting from the appellant's plea of guilty to the drug offences. 

   [6] As to which, see Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [56].

4. We are not bound to allow a discount of 25% because the appellant indicated he would plead guilty to the drug offences at the first reasonable opportunity. Section 9AA confers a discretion in deciding upon the discount to be given in each case. This recognises that the nature, character and extent of the benefits referred to in s 9AA may vary across particular cases where the offender has pleaded guilty, or indicated he or she will plead guilty, at the first reasonable opportunity.[7]

   [7] Abraham [62]; Kirby v The State of Western Australia [2016] WASCA 199[25].

5. In our view, in all the circumstances of the present case, it is appropriate to allow a discount of 22% in respect of the drug offences, under s 9AA of the Sentencing Act. That is, we consider the discount given by the sentencing judge to be appropriate in all the circumstances, including the time at which the appellant indicated he would plead guilty to the drug offences. We also agree with the sentencing judge that a discount of 22% under s 9AA is appropriate in respect of the stealing offences.

6. The general principles of sentencing offenders for serious drug offences are well-established.[8]  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 within a particular organisation, or generally, and whether the offending was committed for commercial gain.  The degree of purity is often regarded as significant.  Matters personal to an offender will invariably be subsidiary considerations, but they are not irrelevant.

   [8] See, for example, Jneid v The State of Western Australia [2018] WASCA 67 [81]; Carlucci v The State of Western Australia [2019] WASCA 37 [37].

7. The drug offences were of a kind that would commonly attract a sentence of immediate imprisonment, notwithstanding the absence of any commerciality in the intended supply to the co-purchaser.  As McLure P (with whom Buss and Mazza JJA agreed) noted in Fenton v The State of Western Australia:[9]

   The sentencing principles for s 6(1) MDA offences are well known.  Ordinarily, a term of immediate imprisonment is the only appropriate sentencing option.  That is so even in the absence of commerciality.  The gravamen of the offence is the distribution of illicit drugs, which cause significant damage in, and to, our communities.

   …

   The imposition of a suspended term is, as a matter of fact, exceptional. (citations omitted)

   [9] Fenton v The State of Western Australia [2015] WASCA 255 [18] - [19].

8. The drug offences were not at the upper end of seriousness on the scale of offending of this type.  The quantities involved were relatively low, and the only supply was to a co-purchaser.  Nevertheless, any possession of quantities of dangerous drugs with an intention to sell or supply them to another is a serious offence.

9. In relation to the stealing offences, as this court recently reiterated in Pflug v The State of Western Australia:[10]

   [T]he offence of stealing as a servant is serious in that it involves the abuse of a position of trust.  Consequently, significant weight is ordinarily accorded to general deterrence with a related reduction in the weight ordinarily given to personal circumstances and antecedents. The appropriate penalty is ordinarily, as a matter of fact, a term of imprisonment to be served immediately, especially where the total amount stolen is substantial and involves multiple offences.

   [10] Pflug v The State of Western Australia [2018] WASCA 65 [55].

10. In the present case, the offending involved a series of premeditated and deceptive transactions over a period of months, which resulted in a significant financial detriment to ACC Industrial.  The offences were aggravated by the fact that the appellant committed them while on bail for the drug offences.  Notwithstanding the appellant's good antecedents (which is not uncommon in persons holding a position of trust as an employee) and remorse, a sentence of immediate imprisonment was clearly the only appropriate type of sentence for the stealing offences.  We are positively satisfied that suspended and conditionally suspended imprisonment are not appropriate sentencing options having regard to the facts and circumstances of the particular case and all relevant sentencing factors and principles.  The imposition of a term of immediate imprisonment for the stealing offences precludes suspension or conditional suspension of the terms for the drug offences,[11] even if (which we doubt) that course had otherwise been open.

    [11] Section 76(3)(b) and s 81(3)(b) of the Sentencing Act.

11. The family hardship resulting from the appellant's incarceration, while significant, is of a kind ordinarily associated with immediate imprisonment.  This is not one of the exceptional cases in which family hardship is a mitigating factor.[12]

    [12] See Evans v The State of Western Australia [2019] WASCA 73 [60] - [61], adopting Anderson v The State of Western Australia [No 3] [2014] WASCA 190 [96] - [97] and [100] - [101].

12. Having regard to all the circumstances of the case and all relevant sentencing principles, we consider that the individual sentences imposed by the sentencing judge are appropriate.

13. It is then necessary for this court to determine the total effective sentence which bears a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the appellant personally.[13]  In our view, a total effective sentence of 2 years 8 months' immediate imprisonment is the appropriate total effective sentence in all the circumstances of the case.

    [13] See Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26].

Disposition

1. For the above reasons, the sentencing judge erred by failing to have regard to the appellant's indicated pleas of guilty to the drug offences when determining the maximum available discount under s 9AA of the Sentencing Act.  However, in all the circumstances, we are of the opinion that no different sentence should have been imposed.  The appropriate orders are:

   (1)Leave to appeal on ground 2 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.

ZMM
Research Associate/Orderly to the Honourable Justice Mitchell

7 AUGUST 2019