Haasy v The State of Western Australia

[2010] WASCA 207

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   HAASY -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 207

CORAM:   PULLIN JA

NEWNES JA
MAZZA J

HEARD:   4 OCTOBER 2010

DELIVERED          :   27 OCTOBER 2010

FILE NO/S:   CACR 25 of 2010

BETWEEN:   DANIEL JAMES HAASY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :EATON DCJ

File No  :IND 1002 of 2009

Catchwords:

Criminal law - Sentence appeal - Several offences of possession of methylamphetamine with intent to sell or supply - Small quantity - Low purity - Appellant addicted - No evidence of dealing for commercial gain - Whether aggregate sentence manifestly excessive

Legislation:

Nil

Result:

Appeal allowed

Category:    B

Representation:

Counsel:

Appellant:     Mr D N Ryan

Respondent:     Mr P D Yovich

Solicitors:

Appellant:     Talbot Olivier

Respondent:     Director of Public Prosecutions (WA)

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

Bellissimo v The Queen (1996) 84 A Crim R 465

Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49

Burke v The State of Western Australia [2007] WASCA 210

Chan v The Queen (1989) 38 A Crim R 337

Coleski v The State of Western Australia [2008] WASCA 260

Laws v The State of Western Australia [2007] WASCA 95

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Rigney v The State of Western Australia [2008] WASCA 96

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

Steel v The State of Western Australia [2010] WASCA 118

The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165

The State of Western Australia v Andela [2006] WASCA 77

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

The State of Western Australia v Higgins [2008] WASCA 157

Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

1. PULLIN JA:  This is an appeal against sentence.  The appellant was convicted on his plea of guilty of three counts in an indictment which read:

   (1)On 24 January 2009 at Victoria Park Daniel James Haasy had in his possession a prohibited drug, namely Methylamphetamine, with intent to sell or supply it to another

   (2)On 3 March 2009 at Beaconsfield Daniel James Haasy had in his possession a prohibited drug, namely Methylamphetamine, with intent to sell or supply it to another

   (3)On 11 May 2009 at Bibra Lake Daniel James Haasy had in  his possession a prohibited drug, namely Methylamphetamine, with intent to sell or supply it to another

2. The convictions were recorded on 25 August 2009.  At the same time, the appellant pleaded guilty to eight other charges referred to in a s 32 notice.  The details of the three counts in the indictment and the eight charges in the s 32 notice, and the sentences imposed, are set out in the following table:

Indictment 1002 of 2009	Date	Offence	Details	Sentence
Count 1	24.01.09	Possession of a prohibited drug with intent to sell or supply (methylamphetamine)	3.79 grams 2% purity	6 months' imprisonment cumulative on count 3
Count 2	03.03.09	Possession of a prohibited drug with intent to sell or supply (methylamphetamine)	9.54 grams 5% purity	2 years 3 months' imprisonment concurrent with count 3
Count 3	11.05.09	Possession of a prohibited drug with intent to sell or supply (methylamphetamine)	25.22 grams 10% purity	3 years 9 months' imprisonment

Section 32 Notice
1. FR3123/09	05.12.08	Possession of a prohibited drug (methylamphetamine)	0.6 gram	1 month's imprisonment cumulative on count 3
2. FR3124/09	05.12.08	Possession of a smoking utensil	Used to smoke methyl- amphetamine	$100 fine
3. FR3125/09	05.12.08	Possession of a smoking utensil	Used to smoke cannabis	$100 fine
4. PE18597/09	24.01.09	Possession of a prohibited drug (cannabis)	1 gram	$200 fine
5. FR5493/09	19.02.09	Possession of a prohibited drug (amphetamine)	0.62 gram	1 month's imprisonment cumulative on count 3
6. FR5038/09	03.03.09	Possession of a prohibited drug with intent to sell or supply (cannabis)	1 gram	$200 fine
7. FR5689/09	03.03.09	Possession of stolen or unlawfully obtained property	$4360	$200 fine
8. FR7930/09	11.05.09	Possession of a prohibited drug (cannabis)	No amount (personal use)	$200 fine

1. The sentence on count 3 was the head sentence.  The sentence on count 2 was ordered to be served concurrently with count 3 and the sentence on count 1 to be served cumulatively upon count 3.  The terms of imprisonment in relation to charges FR3123/09 and FR5493/09 were ordered to be served cumulatively upon the head sentence.  It was ordered that the appellant be made eligible for parole and the sentence was backdated to 11 May 2009.

2. As a result, the total sentence imposed was 4 years 5 months.

The facts

1. On 24 January 2009, the appellant was driving a vehicle in Victoria Park when it was stopped by the police.  Methylamphetamine and cannabis were found in the vehicle and the possession of these two drugs was the subject of count 1 on the indictment and charge PE18597/09.

2. On 3 March 2009, the appellant was once again apprehended while driving a motor vehicle and he was found to be in possession of methylamphetamine and cannabis.  This resulted in count 2 and charge FR5038/09. 

3. On 11 May 2009, he was once again apprehended by the police while driving a motor vehicle and was found to be in possession of methylamphetamine and cannabis, this forming the subject of count 3 and charge FR7930/09.

4. Earlier, on 5 December 2008, the appellant was found to be in possession of methylamphetamine and a smoking utensil used for smoking methylamphetamine and a smoking utensil used to smoke cannabis.  This resulted in charges FR3123/09, FR3124/09 and FR3125/09.  Finally, on 19 February 2009, he was found to be in possession of methylamphetamine. 

5. The personal circumstances of the appellant disclosed to the sentencing judge were as follows.  He was 25 years of age at the time of the offences.   He first began using drugs at the age of 15 years.  He was a long‑time drug user who claimed that at the height of his addiction he was smoking 'up to 14 g' of methylamphetamine per day and was selling prohibited drugs in order to support his own drug addiction and to pay back an accumulated drug debt.  The appellant had prior convictions for offences committed throughout 2007, including aggravated burglary, stealing a motor vehicle and simple possession of prohibited drugs, being cannabis and amphetamines.  The appellant did not have any prior convictions in relation to possession of prohibited drugs with intent to sell or supply.  The State conceded that the prior criminal record was 'relatively minor'. 

6. For the 2007 offences, the appellant received the benefit of a community based order and attempted to deal with his drug addiction by attending a programme at Palmerston Farm.  For a substantial part of the appellant's drug‑taking life, he was in receipt of a good income and by and large was able to feed his habit without necessarily turning to sustained property crime and dishonesty.  The appellant's work came to a halt towards the end of 2008 due to the onset of the global financial crisis.  The appellant had strong family support and some insight into his offending behaviour, as well as a willingness to address it.  The pleas of guilty were by way of fast‑track pleas.

7. In relation to count 1, the very low percentage purity of drugs indicated that the amount was predominantly a cutting agent.  The result was that the appellant was summonsed on this charge even though it was committed while he was on bail in relation to the 5 December 2008 charge (FR3123/09).  The offences the subject of all counts were therefore committed by the appellant whilst on bail.  In addition, he was admitted to bail on count 2 so that count 3 was committed when he was on bail in relation to two offences.  The appellant committed the offence which is the subject of count 3 to satisfy a significant drug debt.  The appellant was under pressure from the habit of using drugs and from those to whom the appellant owed money.  There was no evidence to suggest that the appellant was making any profit by way of his dealing beyond what he required to support his habit and repay his drug debts.

8. The sentencing judge related the above facts, noted the need for general deterrence, noted that personal circumstances counted for little when it came to dealing in high end drugs and acknowledged that the fast‑track plea of guilty would result in a reduction of the sentences which would otherwise have been imposed by one‑quarter.   

The law

1. The sole ground of appeal is that the total sentence is manifestly excessive, meaning that the appellant contends that the total effective sentence for all charges offends the totality principle.  In determining whether a sentence is manifestly excessive, it is necessary to examine it from the perspective of the maximum sentences prescribed by law for the relevant offence, the standards of sentence customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question and the personal circumstances of the offender:  Steel v The State of Western Australia [2010] WASCA 118 [66]; Chan v The Queen (1989) 38 A Crim R 337, 342. When considering the sentencing standards that are usually observed in relation to the offences of the kind in question, it is necessary to have regard to the sentences imposed in comparable cases: The State of Western Australia v Atherton [2009] WASCA 148 [20] ‑ [21], [126]. It is helpful to determine whether a general range of sentences can be discerned for like offences by reviewing similar cases in an attempt to achieve consistency in sentencing: Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 [12] (McLure JA); The State of Western Australia v Higgins [2008] WASCA 157 [19] (Steytler P, McLure & Miller JJA agreeing). The outcome of discretionary decision‑making can never be uniform but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. It should be systematically fair and that involves reasonable consistency: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [6] (Gleeson CJ); Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [46] (McLure J).

2. I should add what must be obvious, namely that the production of a schedule of cases indicative of a range of sentences does not bind the court in a particular case to impose a sentence which fits within the highest and lowest sentences revealed by the schedule.  This is because the particular facts and circumstances of each case can vary markedly and sometimes the court's attitude to particular offences may have to be adjusted.  Nevertheless, a schedule of cases provides valuable relevant information to a sentencing court or appeal court.

3. When it comes to offences of possession of methylamphetamine with the intention to sell or supply, there is a large body of case law to draw upon which allows the preparation of a detailed schedule of relevant cases.  From time to time, the court itself prepares a summary of relevant cases:  see for example Tulloh and Atherton.  While it is true that to focus entirely on the quantity of drug involved is wrong, it nevertheless remains a very important factor which can, and usually is, given significant weight:  see Tulloh [50]; Wong [70]. In The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165 [36] and Atherton [22] ‑ [30], I remarked on the importance of parties providing relevant information. In my view, in relation to this type of offence (and other offences which commonly come before the court), the State might consider providing to the court or the public, via its website, a summary of information about the sentences revealed in other cases. If the DPP does not have sufficient resources to prepare and maintain such a summary, then the DPP might consider making a submission to government to obtain funds so that this information can be made available. It would make sense if the information was published on its website. Such a summary might be in the form of a schedule showing in relation to other cases the case citation, the date of judgment, the age of the offender, whether or not the offender had a relevant criminal history, the amount of the drug in grams, the percentage purity, the resultant pure weight of drug, whether or not the sentence was imposed after trial or a plea of guilty, the sentence after appeal and a brief note of other relevant circumstances. Such a schedule, if it existed, would be a resource then useful to the courts and accused persons.

4. The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence:  Bellissimo v The Queen (1996) 84 A Crim R 465, 471; Atherton [125]. Other factors to be weighed in the balance are referred to in Atherton [125].

5. The appellant concedes that the sentencing judge considered the totality principle which resulted in a significant reduction in the term which would have been imposed if all sentences had been ordered to be served cumulatively.  The totality principle requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentence is appropriate for each offence and is a just and appropriate measure of the total criminality involved: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 ‑ 308. That is, after setting appropriate sentences for the individual charges, the court must review the aggregate sentence to ensure that it is just and appropriate for the offender's behaviour as a whole.

6. The totality principle comprises two limbs.  The first is that the total effective sentence must bear 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 offender personally.  The second limb is that the court should not impose a 'crushing' sentence.  An aggregate sentence may be inappropriately long under the first limb, even if it cannot be described as crushing: Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [25] (McLure JA). The appellant contends only that the first limb was breached and thereby impliedly and properly concedes that there was no breach of the second limb.

7. The respondent accepts that the offending was not aggravated by a motive purely of financial gain.  However, the respondent submitted that there is no principle that dealers who are also drug addicts should be treated more leniently because their motive for dealing is the need for money to finance their drug habit.  That submission is correct: see The State of Western Australia v Andela [2006] WASCA 77 [15]. However, where the evidence is (and in this case the finding was) that the appellant possessed drugs for his own use, was addicted to methylamphetamine and dealt in drugs to finance his habit, then those points may be, within strict or narrow limits, points of mitigation: Andela [15].

8. The relevant circumstances of this case were all, save one, points in mitigation.  They were that the appellant had pleaded guilty on the fast‑track; had chronic addiction; was using drugs himself; and was not driven by drug selling as a business for financial gain.  Moreover, the purity of the drugs was low; he did not have a serious criminal record; and he had demonstrated a desire to address his addiction.  Finally, he had strong family support.  The only countervailing and aggravating aspect was that the appellant went on committing offences while on bail.  However, at the time these offences were committed, he was addicted to methylamphetamine and indebted to and under pressure from his suppliers.

9. The appellant referred to four cases in particular.  They were:  Laws v The State of Western Australia [2007] WASCA 95, Coleski v The State of Western Australia [2008] WASCA 260, Rigney v The State of Western Australia [2008] WASCA 96 and Bosworth.  Bosworth is important because the court there indicated that in cases involving smaller quantities of methylamphetamine (between 3 g and 65 g), sentences range between 2 years and 5 years [41], although Miller AJA suggested [42] that there is a consistency in sentences for 'mid‑range dealers' and that sentences under the 'new regime' are often between 2 and 4 years' imprisonment, but 'sometimes more'.

10. This appellant was not a mid‑range dealer.  There was no dispute that the percentage purity of the drug involved in the case here was of 'street level' purity.  The case of Laws involved a gross weight of the drug of 30.76 g, the majority of which was of 23% purity.  That attracted a 3 year 4 month total sentence.  Coleski involved a very small quantity of 9.87 g of 24% purity attracting a 1 year sentence.  Rigney, in my view, provides no guidance. That case involved just over 98 g, the majority of which was at 50% purity. Another case to provide some guidance is Burke v The State of Western Australia [2007] WASCA 210, which involved 27.89 g with a purity between 11 ‑ 46% where a sentence of 2 years' imprisonment was imposed.

1. Taking into account all the factors mentioned above, the aggregate sentence imposed in this case was excessive and disproportionate to the total criminality of the appellant's conduct.  The appeal notice was filed out of time and an extension is sought.  The appeal notice was filed on 26 February 2010, the latest date for appealing being 15 September 2009.  The delay was largely as a result of the conduct of the appellant's legal advisers and the need to obtain a grant of aid.  An order extending time in which to appeal is not opposed by the respondent.  It is appropriate that the time for appealing should be extended to 26 February 2010.  Leave to appeal has already been granted.  The appeal should be allowed.

2. It therefore necessary to resentence.  There is no dispute that no less a penalty than a term of imprisonment should be imposed.  The appellant should be sentenced to 3 years' imprisonment on count 3.  The same sentences imposed by the sentencing judge on all other counts and charges should be reimposed.  A reconsideration of the factors relevant to the conclusion that imprisonment was warranted leads to the conclusion that the sentence of imprisonment should not be suspended.  All the terms of immediate imprisonment should be served concurrently except for the sentence on count 1, which should be served cumulatively on count 3 as a result of the application of totality principles.  The result is a total sentence of 3 years 6 months' imprisonment.  The appellant should be made eligible for parole which means that the minimum term he must serve before being eligible for release on parole is one half of the total sentence.

3. NEWNES JA:  I agree with Pullin JA.

4. MAZZA J:  I agree with Pullin JA.