Headley v The Queen
[2004] WASCA 88
•11 MAY 2004
HEADLEY -v- THE QUEEN [2004] WASCA 88
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 88 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:152/2003 | 5 MARCH 2004 | |
| Coram: | MALCOLM CJ WHEELER J MCKECHNIE J | 11/05/04 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | ANTHONY WILLIAM HEADLEY THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Drug offences Parity in sentencing Whether unwarranted disparity between 5 years for manufacturing amphetamine and 2 years for manufacturing and possession with intent 5year sentence for manufacture of amphetamine within the appropriate range Having regard to the respective roles of the offenders, no disparity made out Criminal law and procedure Sentencing Drug offences Personal circumstances of offender as a mitigating factor Personal circumstances of offender taken into account in sentencing Appeal dismissed Criminal law Sentencing Drug offences Totality Whether a total sentence of 10 years is excessive where individual sentences are within the appropriate range Total sentence of 10 years is proportionate to offender's criminal conduct |
Legislation: | Misuse of Drugs Act 1981 (WA), ss 6(1)(a)(b) |
Case References: | Abela v The Queen [2002] WASCA 279 Brittain v The Queen [2001] WASCA 92 Cabassi v The Queen [2000] WASCA 305 Lim v The Queen [1999] WASCA 296 R v Pallister [2002] WASCA 68 Worth v The Queen [2001] WASCA 303 Accini v The Queen [2001] WASCA 211 Brittain v The Queen [2001] WASCA 117 Cameron v The Queen [2000] WASCA 286 Crutch v The Queen [1999] WASCA 187 Herbert v The Queen [2003] WASCA 61 Jarvis v The Queen (1993) 20 WAR 201 Kezkiropoulos v The Queen [2002] WASCA 352 Lowndes v The Queen (1999) 195 CLR 665 Magee v The Queen [1980] WAR 117 Mill v The Queen (1988) 166 CLR 59 Postiglione v The Queen (1997) 189 CLR 295 Quach v The Queen [1999] WASCA 210 R v Bellissimo (1996) 84 A Crim R 465 R v Bowman (1993) 69 A Crim R 530 R v Clinch (1994) 72 A Crim R 301 R v Darwell (1997) 94 A Crim R 35 Watson v The Queen [2000] WASCA 119 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : HEADLEY -v- THE QUEEN [2004] WASCA 88 CORAM : MALCOLM CJ
- WHEELER J
MCKECHNIE J
- Applicant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : HAMMOND CJDC
File Number : IND 1345 of 2003
Catchwords:
Criminal law and procedure - Sentencing - Drug offences - Parity in sentencing - Whether unwarranted disparity between 5 years for manufacturing amphetamine and 2 years for manufacturing and possession with intent - 5year sentence for
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manufacture of amphetamine within the appropriate range - Having regard to the respective roles of the offenders, no disparity made out
Criminal law and procedure - Sentencing - Drug offences - Personal circumstances of offender as a mitigating factor - Personal circumstances of offender taken into account in sentencing - Appeal dismissed
Criminal law - Sentencing - Drug offences - Totality - Whether a total sentence of 10 years is excessive where individual sentences are within the appropriate range - Total sentence of 10 years is proportionate to offender's criminal conduct
Legislation:
Misuse of Drugs Act 1981 (WA), ss 6(1)(a)(b)
Result:
Application for leave to appeal dismissed
Category: D
Representation:
Counsel:
Applicant : Mr R D Young
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Gunning Young
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Abela v The Queen [2002] WASCA 279
Brittain v The Queen [2001] WASCA 92
Cabassi v The Queen [2000] WASCA 305
Lim v The Queen [1999] WASCA 296
R v Pallister [2002] WASCA 68
Worth v The Queen [2001] WASCA 303
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Case(s) also cited:
Accini v The Queen [2001] WASCA 211
Brittain v The Queen [2001] WASCA 117
Cameron v The Queen [2000] WASCA 286
Crutch v The Queen [1999] WASCA 187
Herbert v The Queen [2003] WASCA 61
Jarvis v The Queen (1993) 20 WAR 201
Kezkiropoulos v The Queen [2002] WASCA 352
Lowndes v The Queen (1999) 195 CLR 665
Magee v The Queen [1980] WAR 117
Mill v The Queen (1988) 166 CLR 59
Postiglione v The Queen (1997) 189 CLR 295
Quach v The Queen [1999] WASCA 210
R v Bellissimo (1996) 84 A Crim R 465
R v Bowman (1993) 69 A Crim R 530
R v Clinch (1994) 72 A Crim R 301
R v Darwell (1997) 94 A Crim R 35
Watson v The Queen [2000] WASCA 119
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1 MALCOLM CJ: This is an application for leave to appeal against sentence. On 19 August 2003, the applicant was convicted in the District Court at Perth on his pleas of guilty to the following offences, namely, that:
(1) on 17 April 2001 at Gosnells, he manufactured a prohibited drug, namely, methylamphetamine contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA) the subject of an indictment dated 16 June 2003 (IND02/409);
(2) on or about 11 June 2002 at Maylands, the applicant and Amanda Catherine Williams ("Ms Williams") had in their possession a prohibited drug, namely, methylamphetamine, with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act (IND553 of 2003);
(3) on or about 11 June 2002 at Maylands, the applicant and Ms Williams attempted to manufacture a prohibited drug, namely, methylamphetamine, contrary to ss 6(1)(b) and 33(1) of the Misuse of Drugs Act (IND553 of 2003);
(4) on 13 June 2003 at Leederville, the applicant had in his possession a prohibited drug, namely, methylamphetamine with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act (IND1345 of 2003); and
(5) on the same date and at the same place, the applicant had in his possession a prohibited drug, namely, heroin, with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act (IND1345 of 2003).
2 The maximum penalty for the manufacture of a prohibited drug contrary to s 6(1)(b) of the Misuse of Drugs Act is a fine not exceeding $100,000 or imprisonment for 25 years or both. The maximum penalty for the possession of methylamphetamine with intent to sell or supply is the same. The maximum penalty for possession of heroin with intent to sell or supply is also the same.
3 The applicant also pleaded guilty to a charge that on 1 February 2002 he was convicted in the District Court of one count of possession of amphetamine with intent and on that day he was sentenced to
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- imprisonment for 18 months suspended for 2 years on the basis of his convictions on indictment 1345 of 2003 of possession of methylamphetamine with intent to sell or supply and on indictment 553 of 2003 of possession of methylamphetamine with intent to sell or supply, and one count of attempted manufacture of methylamphetamine. As a consequence, he became liable to be sentenced for the offence for which he was previously sentenced to a suspended term of imprisonment.
4 The applicant was sentenced in the District Court on 28 August 2003 by Hammond CJDC. His Honour noted that the applicant had pleaded guilty to each of the five charges on the indictment. It was also noted that on 1 February 2002, he was convicted of one count of possession of methylamphetamine with intent to sell or supply and on that day sentenced for 2 years to be suspended for 2 years.
5 The learned Chief Judge dealt first with indictment 1345 of 2003. The relevant facts were that at 6 am on Friday, 13 June 2003, police attended at the applicant's residence, 11 Byron Street, Leederville, for the purposes of executing a search warrant under the Misuse of Drugs Act. In the course of the search, police located a number of sachet bags containing white powder. These bags were located in the main lounge area, the applicant's bedroom and in the applicant's pants pocket.
6 Subsequent analysis established that certain quantities of the powder were amphetamines weighing a total of 26.28 grams. One package of 6.7 grams had a purity of 25 per cent. The remaining 18.98 grams had a purity ranging from 79 per cent to 81 per cent. Of the quantities of powder located by the police, analysis established that a quantity of 13.8 grams of the powder was diacetylmorphine heroin with a purity of 31 per cent. Police also located the amount of $7500.
7 The applicant was interviewed by the police and told them that the quantities of powder were "speed" and because they were in his house, they belonged to him.
8 As to indictment 553 of 2003, this related to an incident on 11 June 2002 when the police executed a search warrant at a house at 73 Caledonian Avenue, Maylands, which was occupied by the applicant and a co-accused. A small quantity of amphetamine was found hidden inside a bamboo pole, being 9.9 grams of 33 per cent purity. On that occasion, a clandestine laboratory was located in the rear shed of the residence with all of the paraphernalia and utensils consistent with the intended manufacture of quantities of methylamphetamine. These facts constituted
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- the offence of attempting to manufacture amphetamine on or about 11 June 2002.
9 Indictment 409 of 2002 related to the manufacture of methylamphetamine at Gosnells in April 2001. Between 12 and 17 April 2001, police intercepted telephone calls to and from a mobile phone leased by the applicant. In a number of these calls, the applicant discussed and organised the sale or supply of methylamphetamine and MDMA. The applicant also discussed supplying quantities of methylamphetamine to people in return for stolen property and employing people to perform violent acts upon persons owing him money from the sale or supply of prohibited drugs.
10 In several of these calls, the applicant discussed with, and arranged for, persons to supply him with quantities of pseudoephedrine for the purpose of manufacturing methylamphetamine. He agreed to provide a supplier of pseudoephedrine with a quantity of methylamphetamine to be produced from the pseudoephedrine. At 5.40 am on 17 April 2001, the applicant called a co-accused, one Alko Bos, and arranged to drive to the latter's house with the equipment required for the clandestine manufacture of methylamphetamine.
11 The applicant had arranged to use the patio at the rear of Bos's home to manufacture methylamphetamine and, in return, he had agreed to provide Bos with either money or methylamphetamine.
12 The applicant arrived at Bos's house with another co-accused, one Jonathan Nannup. Nannup and the applicant unloaded the applicant's car and the applicant assembled the clandestine laboratory and manufactured a quantity of 23.5 grams of methylamphetamine.
13 The method of manufacturing the methylamphetamine employed by the applicant was to use either lithium or sodium methyl dissolved in anhydrous ammonia to reduce pseudoephedrine to methylamphetamine. Based on the quantities of iodine and sodium present at the clandestine laboratory, it was estimated that the possible future production of methylamphetamine using those materials could be 327 grams.
14 The applicant indicated to those to whom he spoke in his intercepted telephone calls that he was prepared to sell 1 gram of uncut methylamphetamine for $400. He told people that his prices for methylamphetamine were higher than usual because he refused to "cut" the methylamphetamine with another agent. Based on these prices, the
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- value of the methylamphetamine manufactured by the applicant was some $9400.
15 Based on the quantities of iodine and sodium located within the laboratory, it was estimated that the applicant had enough of these chemicals to manufacture a quantity of methylamphetamine valued at $130,800. It was accepted by the learned Chief Judge that in that calculation there was a degree of estimation and prediction.
16 The police conducted surveillance of the premises at Gosnells on 17 April 2001 and at 6.44 pm the applicant was observed to leave those premises in his motor vehicle. He was followed and apprehended by police. The applicant was subsequently interviewed and told police that he had been at the premises at Gosnells earlier that day, but he refused to answer any questions concerning his participation in the laboratory located there.
17 The applicant's premises at Queens Crescent, Mt Lawley, was searched on 18 April 2001. In the kitchen, police located a set of electronic scales and methylamphetamine was detected on the surface of the scales. Police also found documents relating to the manufacture of methylamphetamine under the refrigerator and also in a briefcase belonging to the applicant.
18 The police found a list of names and amounts of money owing to the applicant inside a locked safe in the house. They found a revolver in the living area, an automatic rifle in the garage and a large quantity of ammunition. Inside a trailer licensed to the applicant and parked outside his residence, police found glass containers, a bag containing plastic funnels and tubes, caustic soda containers and a box marked as containing sodium methyl. The glass containers, funnels and tubes were found to contain traces of ephedrine, pseudoephedrine and Phenycin. The presence of these substances suggested that the equipment had been used previously for the manufacture of methylamphetamine.
19 The applicant's co-offenders, Bos and Nannup, were also charged. Bos co-operated with the police by providing a statement indicating the applicant's role in the clandestine laboratory. As a result of this co-operation, Bos was charged with knowingly permitting his premises to be used for the manufacture of a prohibited drug. He was sentenced to an intensive supervision order for 12 months by the Perth Court of Petty Sessions. The co-offender, Nannup, was charged with manufacturing methylamphetamine and a further count of possession of
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- methylamphetamine with intent to sell or supply. The second of these two counts represented the 23.5 grams of methylamphetamine manufactured.
20 The applicant had been indicted with only one count of manufacturing methylamphetamine, which represented the 23.5 grams of methylamphetamine manufactured being the same 23.5 grams for which Nannup was charged on a separate count.
21 Nannup also assisted the police by providing a statement implicating the applicant. Nannup pleaded guilty at an early stage. He was sentenced on the basis that he had assisted the applicant by unloading equipment from the applicant's vehicle, and being present while the applicant manufactured the methylamphetamine, in order to be available to run any errand for the applicant and to protect him if necessary. Nannup was sentenced to imprisonment for 2 years which took into account both the extent of his involvement in the commission of the offences, as well as the assistance he gave to the authorities and the fact that he was a sentenced prisoner at the time of sentencing.
22 The learned Chief Judge noted that the applicant was 58 [sic 53] years of age at the time he was sentenced. He had five children, the youngest of whom was aged 12. The applicant is a Vietnam veteran and currently a totally permanently incapacitated pensioner. He had been diagnosed with chronic post-traumatic distress disorder and had been under the care of a Dr Kay since 1997. His Honour noted that it had been submitted on behalf of the applicant by his counsel that the applicant accepted his responsibility for law breaking. He pleaded guilty before the commencement of his trial in relation to indictment 409 of 2002, although the Director of Public Prosecutions was notified at the last moment that a plea would be entered.
23 The plea of guilty to indictment 1345 of 2003 was the subject of a fast-track plea. As to indictment 553 of 2003, the plea came at a relatively early stage.
24 The applicant suffers extremely poor health and fell into a spiral becoming addicted to amphetamines. That downward spiral led to his present situation. His counsel said that the applicant was a prolific and sustained user of amphetamines by way of orally ingesting them, which accounted for the significant quantities with which he was involved.
25 In his plea in mitigation, the applicant's counsel said that the Gosnells' offence in April 2001 indicated an amateurish home-based operation. The learned Chief Judge said, however, that it was difficult to
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- accept all of this in the light of the chronological circumstances. His Honour went on to refer to the applicant's prior record of convictions. In 1990, the applicant was convicted of possession of cannabis and a smoking instrument. There were three convictions for drug-related offences in December 1997 and offences involving the possession of controlled weapons in 2001.
26 His Honour also said:
"… it is appropriate to go back to 13 December 2000 when this man was driving his vehicle in Beckenham and 8.95 grams of amphetamines were discovered and he received a suspended term of imprisonment, namely, 1 and a half years. That appears to have been imposed by me. It is not long after that, however, namely on 17 April 2001, when the Gosnells operation or offence is committed. There is no doubt that this was a significant operation for the manufacture of amphetamines."
27 His Honour continued:
"From the statement of agreed facts, which I have largely quoted from earlier in these reasons, it is clear that a significant quantity of this was to be made available for distribution to other people. It is then just over a year later when the Maylands offences are committed when again he is attempting to manufacture amphetamines at Maylands. Almost a year after that, there is the Leederville incident where he is in possession of a significant [quantity] of methylamphetamine with intent to sell or supply to another.
All this leads inevitably to the conclusion that whereas this man may well be himself a significant user of amphetamines, he is also a significant producer of the same and a dealer therein. The Court of Criminal Appeal in this State has made it clear on many occasions that amphetamines [are] at the higher end of seriousness [in] the hierarchy of prohibited drugs. Again, and significantly, I am aware of and have read the authorities dealing with the manufacture of methylamphetamines, particularly the appeals of Pallister and Abela."
28 The two cases referred to at the end of that passage by his Honour were R v Pallister [2002] WASCA 68 and Abela v The Queen [2002] WASCA 279.
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29 In passing sentence on the applicant, the learned Chief Judge concluded that no reason whatsoever had been advanced to him why the suspended sentence of 18 months previously imposed should not now be served "in view of the gross subsequent offending of this offender". As to indictment 409/02 involving the manufacturing offence at Gosnells on 17 April 2001, his Honour noted that the plea of guilty was entered at a late stage after the trial had been listed. His Honour considered that the offence ought to attract a sentence of imprisonment of 6 years but in the light of the "eventual plea", a sentence of imprisonment for 5 years was imposed. As to the offences the subject of IND553/03, being the possession of methylamphetamine with intent to sell or supply and the attempt to manufacture methylamphetamine, being the offences on 11 June 2002, a sentence of imprisonment for 3 years was imposed for the attempt to manufacture and a sentence of 2 years for possession with intent to sell or supply was imposed.
30 As to the offences the subject of IND1345 of 2003, the learned Chief Judge took into account that the pleas of guilty to the two counts on that indictment constituted "a true fast-track matter" and having regard to those circumstances, imposed a sentence of imprisonment for 2 years on each of those counts.
31 His Honour went on to say:
"So at that point I must look at the overall matter generally and the issue of totality in order to arrive at what I see at any rate to be the appropriate result. On indictment 409 of 02 there is a term of 5 years. There are two counts on indictment 553 in which 3 and 2 years have been imposed, they shall be served concurrently, so that the head term for indictment 553 is 3 years, the term for indictment 409 is 5 years.
I turn now to indictment 1345 of 03 and, clearly, the two counts of 2 years there are to be served concurrently, so that at the end of the day there is a 2-year term on indictment 1345 of 03. Looking now at the matter overall, there is no doubt that that term of 18 months' imprisonment ought to descend. Totality, however, indicates to me this: the terms of 3, 5 and 2 imposed on the indictments shall be served cumulatively, making a total of 10 years.
In the interests of totality and as a last look at this matter, I will direct that the term of 1 and a half years be served concurrently,
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- so that at the end of the day there is a term of 10 years' imprisonment dating from 14 March 2003 and this offender is eligible for parole on all counts. I believe that I have taken some care with all the indictments and the like and the numbering and I believe it to be correct."
32 The applicant sought leave to appeal on the single ground that the sentence imposed was manifestly excessive in all the circumstances. On a number of occasions, this Court has pointed out that a ground so formulated without any particulars is quite unhelpful. At the hearing of the application, the applicant sought and obtained leave to amend the grounds of appeal in terms of an amended notice filed on 3 March 2004.
Parity
33 Ground 1 as amended was that:
"The sentence of 5 years' imprisonment for manufacture of methylamphetamine on indictment 409/02 so far exceeded the sentence of 2 years' imprisonment imposed on the co-offender Nannup for that offence and a related offence of possession of methylamphetamines with intent to sell or supply as to produce a justifiable sense of grievance in the applicant."
34 It was conceded in relation to ground 1 that, although the offence was not at the highest end of the scale, a sentence of 5 years' imprisonment was within the appropriate range having regard to such cases as Lim v The Queen [1999] WASCA 296; Cabassi v The Queen [2000] WASCA 305; Worth v The Queen [2001] WASCA 303; and Abela (supra). It was submitted, however, that there was a question of parity as between the applicant and his co-offender Nannup. The latter was sentenced to imprisonment for 2 years for his role in the manufacture plus possession with intent to sell or supply of the 23.5 grams said to have been reduced from the manufacture.
35 While it was conceded there were some reasons why Nannup should have received a lower sentence than the applicant, it was submitted that the disparity between 5 years for a single count of manufacturing for the applicant and 2 years for manufacturing and possession with intent for the co-offender was not warranted. It was accepted that Nannup entered an earlier plea than the applicant, although it was not a fast-track plea. It was also accepted that Nannup was entitled to have some reduction for his willingness to co-operate with the authorities. It was not conceded,
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- however, that Nannup was a secondary offender or played a less significant role.
36 It was submitted that the fact that the applicant was the person actively involved in the mixing together of chemicals was not a true reflection of his level of criminality, but rather a reflection of the applicant's greater intelligence and/or knowledge than Nannup. In his statement to police, Nannup said that he had only a limited education and that he did not know "… how to cook speed". However, Nannup was prepared to assist in the establishment of the laboratory, as well as acting as the applicant's "bodyguard" and in distributing the drugs manufactured. It was on that basis that it was submitted that he should be regarded as an equal participant in the offence, as he did what he could within the limits of his ability. It was pointed out that Nannup was not a young man and that he had a bad prior record. While his earlier plea of guilty and a promise of co-operation with respect to the subject offence entitled him to a deduction, it was submitted that that should have been balanced to some extent by the fact that he was sentenced for offences both of manufacturing and possession with intent. It was submitted, however, that a difference of 3 years between the sentence imposed upon the applicant and that imposed upon Nannup was such as to leave the applicant with a justifiable sense of grievance. In my opinion, Nannup's role was that of the applicant's "bodyguard" and laboratory assistant. He was also convicted of possession with intent to sell or supply the 23.5 grams produced from the manufacture.
37 In this context, it is of significance that, although counsel for the applicant submitted that it was difficult to ascertain on what basis the learned Chief Judge arrived at a sentence of 3 years, given that there was no indication of the capacity of the laboratory, it was conceded that the sentence of 3 years "would seem to fall within an appropriate range, albeit at the highest end of the range for an attempt".
38 In my opinion, having regard to the respective roles of the applicant and Nannup, no case of disparity has been made out.
39 It was conceded that the sentence of imprisonment for 2 years on count 1 on indictment 553/2003 was within an appropriate range. It was further conceded that the sentence of imprisonment for 2 years for each of the offences the subject of indictment 1345/2003 were within an appropriate range. In my opinion, it follows that there is no substance in ground 1.
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The applicant's personal circumstances and medical condition
40 Ground 2 contended that:
"The learned sentencing Judge failed to take into account sufficiently or at all the applicant's personal circumstances, and, in particular, the effect of his medical condition upon his offending behaviour."
41 The applicant relied upon the following particulars in support of ground 2:
"(a) In about 1997, the applicant had been left totally and permanently incapacitated as a result of a series of medical conditions arising from his service in the Vietnam War, most particularly post-traumatic stress disorder.
(b) As a result of his medical conditions, the applicant had turned to drug use as a means of coping.
(c) Having become addicted to amphetamines, the applicant became involved in these offences primarily as a means of funding and providing for his own use of amphetamines."
42 While counsel for the applicant acknowledged that, but for the question of parity, 5 years was within an appropriate range for the manufacture and sentences of 3 years and 2 years respectively were appropriate for the counts on the other indictments, it was submitted that his Honour did not take any account, or any sufficient account, of the applicant's personal circumstances. In support of this contention, it was submitted that it appeared from the sentencing remarks made by the learned Chief Judge that he paid little, if any, regard to the applicant's medical condition and its relationship to his offending. It was submitted that all his Honour did was to recount in general terms information provided to him in the plea in mitigation, without relating that to the offending behaviour and determining whether it should be regarded as mitigatory. It was also submitted that the learned Judge merely recounted what he had been told by counsel for the applicant in his plea in mitigation without indicating whether or not he accepted that the matter disclosed in the plea was mitigatory or what its relevance was in the context of the applicant's offending behaviour. As recorded in the transcript, the learned Chief Judge said in this context that:
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- "Counsel has pointed out that this man suffers extremely poor health and he fell into a spiral of becoming addicted to amphetamines and that downward spiral has led to his present situation. Counsel further says that this man was a prolific and sustained user of amphetamines by way of orally ingesting them, which accounts for the significant quantities with which he seems to be involved."
43 This reference was made against the background of the finding made by the Chief Judge that the applicant was a Vietnam veteran, a totally permanently incapacitated pensioner who had been diagnosed with chronic post-traumatic distress disorder, and who had been under the care of a Dr Kay since 1997. At the same time, it was put on his behalf by counsel that he accepted his responsibility for his law-breaking. In my opinion, the clear implication from the sentencing remarks is that all of these matters which were pleaded in mitigation were taken into account in the imposition of sentence.
44 It was also submitted that the applicant was at the time of sentence aged 53 years. Until his conviction for possession with intent to sell or supply in 2002, for which he received a suspended term of imprisonment, he only had a minor prior record. He was himself a heavy user of drugs. In fact, he used more drugs of a higher purity than most because he consumed the drugs orally rather than by way of injection. However, his Honour did say specifically that while the applicant was "a significant user of amphetamines, he is also a significant producer of the same and a dealer therein". Consequently, I am unable to accept the submission that no account appears to have been taken for sentencing purposes of the fact that the applicant was a heavy drug user and would have used a quantity of the drugs for his personal use: cfBrittain v The Queen [2001] WASCA 92.
45 In my opinion, ground 2 has not been made out.
Ground 3 – Totality
46 Ground 3 was that:
"In accumulating the sentences of 5 years, 3 years and 2 years' imprisonment for the offences the subject of the three indictments to which the applicant pleaded guilty, the learned sentencing Judge failed to take into account sufficiently or at all the totality principle and to consider whether the total of
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10 years produced by that accumulation was proportionate to the totality of the applicant's criminal conduct."
47 It was submitted in support of this ground that even where individual sentences are appropriate, and even where accumulation of those sentences may be warranted, the total sentence produced by the accumulation of individually appropriate sentences may be disproportionate to the totality of the offending behaviour. While so much may be conceded, I am of the opinion that the totality of the sentences imposed on the applicant was by no means disproportionate to the chapters of criminal conduct that the facts of this case reveal. There was no infringement of the totality principle or any disparity between the sentences imposed on the applicant and Nannup.
48 For these reasons, I would refuse this application for leave to appeal.
49 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Malcolm CJ. I agree with them and I too would dismiss this application.
50 MCKECHNIE J: I agree with the reasons and conclusions of the Hon the Chief Justice.
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