Harvey v The State of Western Australia
[2015] WASCA 146
•28 JULY 2015
HARVEY -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 146
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 146 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:56/2015 | 1 JULY 2015 | |
| Coram: | McLURE P MAZZA JA | 28/07/15 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | URSULA ESTELLE HARVEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for leave to appeal against sentence Drug offences Attempting to pervert the course of justice Total effective sentence 7 years 4 months' immediate imprisonment Whether total effective sentence breached the first limb of the totality principle |
Legislation: | Criminal Code (WA), s 143 Evidence Act 1906 (WA), s 11 Misuse of Drugs Act 1981 (WA), s 6(1)(a) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HARVEY -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 146 CORAM : McLURE P
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SCHOOMBEE DCJ
File No : IND 1396 of 2013
Catchwords:
Criminal law - Application for leave to appeal against sentence - Drug offences - Attempting to pervert the course of justice - Total effective sentence 7 years 4 months' immediate imprisonment - Whether total effective sentence breached the first limb of the totality principle
Legislation:
Criminal Code (WA), s 143
Evidence Act 1906 (WA), s 11
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S Rafferty
Respondent : No appearance
Solicitors:
Appellant : Seamus Rafferty
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
1 McLURE P: I agree with Mazza JA.
2 MAZZA JA: This is an application for leave to appeal against sentence. The appellant was convicted after trial of three counts of possession of a prohibited drug with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act1981 (WA) and, together with her then partner, Negussie Abebe, with one count of attempting to pervert the course of justice contrary to s 143 of the Criminal Code (WA).
3 On 3 February 2015, the appellant was sentenced as follows:
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Total effective sentence |
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4 The appellant does not challenge any of the individual sentences that were imposed upon her. Her sole ground of appeal alleges that the total effective sentence infringed the first limb of the totality principle.
5 For the reasons which follow, the proposed ground of appeal has no reasonable prospect of succeeding and thus, the appeal is taken to have been dismissed.
The facts
6 There is no dispute as to the facts of the offending. On 24 October 2012, police officers executed a search warrant at the appellant's home in Wattle Grove. There, they found the drugs the subject of counts 1 and 2.
7 The methylamphetamine the subject of count 2 comprised two quantities. The first was a clipseal bag containing 47.5 g of methylamphetamine with a purity of 60%, which was found floating in the toilet bowl of the appellant's ensuite bathroom. Another quantity of approximately 12 g of methylamphetamine was divided into 11 separate amounts in small clipseal bags. Some were lying on the top of the dresser in the appellant's bedroom and some were located in the spa bath in the ensuite bathroom (ts 1004). Police also discovered a number of items commonly associated with those engaged in the trafficking of drugs for commercial purposes, namely:
(a) electronic scales, together with a calculator;
(b) empty clipseal bags;
(c) a taser gun;
(d) 22 g of a common drug-cutting agent, dimethyl sulfone;
(e) an elaborate CCTV security system;
(f) several mobile telephones which contained text messages, some of which were addressed to 'Ursh', and which contained coded conversations about purchasing and sourcing drugs; and
(g) various papers which the learned sentencing judge said had the appearance of 'tick lists' (ts 1005).
8 The appellant was arrested, charged and ultimately admitted to bail.
9 On 15 February 2013, the police executed another search warrant at the appellant's house in Wattle Grove. There, they found the drugs the subject of count 3. At the time, the appellant was on bail for the offences in respect of counts 1 and 2. The police located three small clipseal bags which, upon later analysis, were found to contain a total of 11 g in methylamphetamine in the craft room of the house (ts 1006).
10 Once again, the appellant was arrested and charged with a further offence of possession of a prohibited drug with intent to sell or supply it to another. Because the appellant was already on bail for the offences allegedly committed on 24 October 2012, bail was refused. Count 4 was committed for the purpose of persuading a court to release her on bail for the offence which later constituted count 3.
11 After the appellant was remanded in custody, she and Mr Abebe, devised a plan for the appellant's older daughter, N, to take responsibility for the drugs found during the search on 15 February 2013. A letter was prepared with N's name on it which stated that the drugs were 'possibly hers', and they could have been 'part of a stash' that she had left at the house (ts 1007). In fact, the letter had not been prepared by N, and its contents were untrue. The letter, which was unsigned, was submitted to the Magistrates Court in support of the appellant's bail application which was ultimately unsuccessful.
12 The appellant and Mr Abebe then turned to the appellant's younger daughter, L. L was 17 years old at the time, and had substance and mental health issues (ts 1008). The appellant and Mr Abebe hatched a plan for L to take responsibility for the drugs (ts 1007).
13 During a prison visit, the appellant asked L 'to take the rap for the drugs' (ts 1007). L was initially reluctant, however Mr Abebe telephoned L repeatedly, telling her that the appellant was suicidal. During another prison visit, the appellant confirmed to L that she was suicidal and, once again, asked her to take the blame. The appellant explained something to L about a certificate under s 11 of the Evidence Act 1906 (WA). L understood the effect of this certificate to be that she could not be charged with an offence relating to the drugs even if she claimed responsibility for them (ts 1008).
14 Mr Abebe arranged for L to be taken to a lawyer's office where she signed a statutory declaration in which she falsely took responsibility for the drugs. That document was delivered to Mr Abebe. In the statutory declaration, L stated that the drugs had been given to her by N for her birthday (ts 1008). This version of events was designed to take into account the contents of N's earlier statement. In a recorded telephone conversation between the appellant and L after L had signed the statutory declaration, the appellant thanked L for her assistance. The appellant told L that, if she would take the blame for the drugs, the appellant would have nothing more to do with drugs or gangs. The appellant also told her that Mr Abebe 'would pay' for things for her (ts 1010). Consequently, as a reward to L, Mr Abebe offered L and her partner a house, a job and money. L declined the offer (ts 1009).
15 L's statutory declaration was provided to a magistrate on 13 March 2013 in support of a further bail application. The prosecution notice contains the following entry on 13 March 2013:
Stat dec provided. Another person responsible. Changed circumstances and exceptional.
16 The bail application was adjourned to 22 March 2013 and, on that day, the appellant was granted bail (ts 1009).
17 The attempt to pervert the course of justice came to light when L, on the advice of friends, went to the police and retracted her false confession (ts 1010). On 31 July 2013, the appellant and Mr Abebe were charged with count 4.
The appellant's personal circumstances
18 The appellant was 41 years of age at the time she was sentenced. She arrived in Australia with her first husband when she was 21. She has three adult children from her first marriage, including N and L (ts 1012).
19 She was introduced to illicit drugs at the age of 29. After her marriage ended, she continued to use illicit substances, particularly methylamphetamine, as an 'emotional crutch' (ts 1012).
20 The appellant has a significant prior record. She has a conviction for supplying methylamphetamine and a number of convictions for dishonesty offences, including for stealing, fraud and stealing as a servant (ts 1013).
21 Court-ordered reports revealed some history of depression, but, at the time of sentencing, the appellant fell within the normal range for depression and anxiety. The psychologist noted that the appellant has poor emotional and stress resilience skills, and that she lacks the ability to think beyond the present and to consider the consequences of her actions, which are prone to being risky and reckless (ts 1013). A character reference provided to the court by the appellant's mother described some of the difficulties the appellant has encountered in her life, and praised her qualities as a daughter (ts 1012).
22 The author of the pre-sentence report noted that the appellant had not accepted any responsibility for her offending behaviour.
The sentencing remarks
23 As no allegation of express error has been made, it is unnecessary to give a detailed description of her Honour's sentencing remarks.
24 The learned sentencing judge described the appellant's drug offending as serious. She noted the purity of the 47.5 g of methylamphetamine found in the toilet bowl, concluding that the appellant 'must have been reasonably close to a source' of the drug. Having regard to the presence of the dimethyl sulfone, her Honour found that the appellant 'clearly intended' to cut the larger quantity of methylamphetamine. While her Honour accepted that the appellant was a user of methylamphetamine, she found that the appellant was selling drugs to make money (ts 1011).
25 With respect to the offence committed on 15 February 2013, her Honour observed that the offence was aggravated by reason of it being committed on bail.
26 Her Honour described the offence of attempting to pervert the course of justice as being 'a very serious offence' (ts 1010). Her Honour noted the following features of this offence (ts 1009 - 1010):
(a) The appellant (and Mr Abebe) put emotional and financial pressure upon L to swear the false statutory declaration and offered inducements to do so.
(b) By reason of L's relationship with the appellant, her age and her mental state, L was very 'vulnerable'.
(c) The appellant's behaviour toward L was callous.
(d) The appellant had no compunction in committing the offence.
(e) The false statutory declaration was tendered to a court, with the intention of deceiving the court.
(f) The false statutory declaration was taken into account in the decision to release the appellant on bail.
27 Her Honour found that there was 'very little' that could be said in mitigation of the appellant's overall offending. She noted that the appellant was not entitled to any reduction of her sentences by reason of a plea of guilty. Further, the appellant had not shown any remorse (ts 1013). Her Honour took into account the appellant's background but observed that, because of the need to provide general deterrence in respect of the offending, personal factors attracted little mitigating weight (ts 1014).
28 For reasons of totality, her Honour ordered that the sentences on counts 1, 2 and 3 be served concurrently. However, she ordered that the sentence for count 4 be served cumulatively, noting that 'it was a totally different offence' (ts 1015).
The appellant's submissions
29 Counsel for the appellant did not shy away from the seriousness of the appellant's offending and accepted, in effect, that the individual sentences could not sensibly be challenged. He further accepted that some accumulation was required with respect to the sentence that was imposed for the offence of attempting to pervert the course of justice. However, it was asserted that the total effective sentence was too long, having regard to the appellant's total criminality. Counsel submitted that, in order to reflect the totality principle, the learned sentencing judge should have either reduced the length of the sentence on count 4 or ordered that it be served partly concurrently.
The totality principle
30 This court is not entitled to intervene simply because it would have exercised a sentencing discretion differently from the sentencing judge. The jurisdiction to intervene is only enlivened if a material error of fact or law is established. A claim against the totality principle is a claim of implied error. The appellant must persuade this court that the total effective sentence is plainly unjust or unreasonable.
31 The first limb of the totality principle requires that the total effective sentence be a just and appropriate reflection of the total criminality involved in all the relevant offences, viewed in their entirety and having regard to the circumstances of the case, including the circumstances of the offender.
32 Without question, the appellant's total offending was very serious. Putting count 4 to one side for the moment, the drug offences showed that the appellant was engaged in drug dealing, primarily for profit. During the search of the appellant's house on 24 October 2012, the police discovered not only a substantial quantity of high-purity methylamphetamine, but also tabs of LSD. It is clear that the appellant intended to cut the larger quantity of methylamphetamine. Many of the typical accoutrements of a commercial drug dealer were present. The smaller quantities of methylamphetamine were already packaged for sale or supply.
33 The appellant committed count 3 while on bail for counts 1 and 2. This is a plainly aggravating factor. The commission of count 3 shows that the appellant was a persistent and determined dealer in drugs, thus underscoring the need for personal deterrence.
34 The offence of attempting to pervert the course of justice was a serious example of its type. The appellant engaged in concerted conduct over a period of time, which misled a court into granting her bail. Her behaviour towards her daughters, and particularly L, was cynical and calculated. Deliberately, the appellant (and Mr Abebe) emotionally and financially exploited L who was, at the time, especially vulnerable by reason of her age and other factors.
35 There was very little mitigation to speak of. The appellant is a mature adult. She was not remorseful. She could not call in aid pleas of guilty. She had a prior criminal history. It could not be said that she was a person of prior good character. The difficulties that she had encountered in her life could be given very little weight, having regard to the predominant need to impose sentences which provided general and personal deterrence.
36 The learned sentencing judge was correct to impose a substantial and wholly cumulative term of imprisonment for the offence of attempting to pervert the course of justice. That offending was separate from, and of a different nature to her drug offences.
37 In my opinion, the total effective sentence imposed by the learned sentencing judge did not infringe the first limb of the totality principle. In my opinion, it was a proper reflection of the appellant's overall criminality. It was neither unjust nor unreasonable in all of the circumstances of the case. The proposed ground of appeal has no reasonable prospect of succeeding. I would refuse leave to appeal, with the effect that the appeal is taken to have been dismissed.
1 Sentence erroneously noted in the sentencing transcript at 1015 and in the certificate of final outcome of charge dated 3 February 2015 as count 3. Counsel for the appellant accepted in his written submissions that the appellant was sentenced to 4 years 10 months' imprisonment in relation to count 2.
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