Ho v The State of Western Australia

[2011] WASCA 108

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   HO -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 108

CORAM:   McLURE P

MAZZA J

HEARD:   14 APRIL 2011

DELIVERED          :   2 MAY 2011

FILE NO/S:   CACR 208 of 2010

BETWEEN:   HON KING HO

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :SCOTT DCJ

File No  :IND 1125 of 2010

Catchwords:

Criminal law - Appeal against sentence - Supplying ecstasy to another - Possession of ecstasy with intent to sell or supply it to another - Whether one transaction rule breached - Whether totality principle infringed

Legislation:

Criminal Appeals Act 2004 (WA), s 27(2)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (WA)

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

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

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554

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

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

The State of Western Australia v Johnson [2010] WASCA 187

Walgar v The State of Western Australia [2007] WASCA 241

1. McLURE P:  I agree with Mazza J.

2. MAZZA J: The appellant applies for leave to appeal against sentence. The appellant must satisfy the court that his proposed ground of appeal has a reasonable prospect of succeeding: s 27(2) of the Criminal Appeals Act 2004 (WA).

3. On 19 October 2010, the appellant pleaded guilty in the District Court to one count of supplying ecstasy to another (count 1) and one count of possession of ecstasy with intent to sell or supply it to another (count 2). 

4. He also pleaded guilty to some other offences set out in a notice under s 32 of the Sentencing Act 1995 (WA). These offences are not the subject of this appeal, and nothing more needs to be said about them.

5. The appellant was sentenced to 1 year's imprisonment on count 1  and 2 years and 6 months' imprisonment on count 2.  The sentences were ordered to be served cumulatively.  The total overall sentence imposed on the appellant was 3 years and 6 months' imprisonment with eligibility for parole. 

6. There is no challenge to the individual sentences. The appellant's ground of appeal, when read with the appellant's case, alleges a breach of the one transaction rule and the totality principle. 

7. The facts are these.  On 13 August 2009, the appellant obtained 300 ecstasy tablets.  Almost immediately after he had obtained the tablets, he supplied 97 of them to a man named McGovern.  Those tablets weighed 28.7 grams and were 13% pure.  Immediately after he committed this offence, he was stopped by police and searched.  Located in his jacket pocket were 198 ecstasy tablets weighing 58.6 grams, which were 13% pure. 

8. At the time he was sentenced, the appellant was 38 years of age.  He was in full‑time employment and he had a record of constant and gainful employment since completing his education.  He had no relevant criminal record.  Character references tendered to the court, on his behalf, spoke well of him.  He had been a user of ecstasy for 10 years and had an entrenched gambling habit.  His Honour accepted that the appellant sold ecstasy to obtain funds with which to gamble.  The pre‑sentence report noted that after his arrest, the appellant had ceased his illicit drug use, but he continued to gamble.

1. In his Honour's sentencing remarks, he expressly had regard to the appellant's early plea of guilty, his gambling addiction and his 'good personal circumstances'.  He noted the seriousness of the offending.  His Honour correctly characterised ecstasy as a drug on par with cocaine, heroin and methylamphetamine in seriousness.  He observed that ecstasy causes misery and harm to the community.

2. In light of the serious nature of the appellant's offending, his Honour, appropriately, gave particular emphasis to general and personal deterrence.  As to the latter, he pointed out that until the appellant had dealt with his gambling habit, he may be vulnerable to further offending.

3. His Honour made express reference to the one transaction rule and the totality principle. 

4. He said that the one transaction rule did not apply because, although the offending occurred on the same day, the appellant had taken part in what he described as 'separate transactions', the first being the supply of the ecstasy and the second being the retention of the rest of the tablets he obtained, with an intention to sell or supply them later.  Accordingly, he imposed cumulative sentences.  He considered that the appropriate sentences, without reference to the totality principle, were 2 years' imprisonment on count 1 and 3 years and 6 months' imprisonment on count 2.

5. Next, his Honour considered and then applied the totality principle.  As a result, he reduced the sentences he would otherwise have imposed by 1 year for each offence.

6. The appellant's essential complaint is that his Honour erred in making the sentences cumulative.  He asserted that the offences were, in truth, one transaction or a continuing episode and should have attracted concurrent sentences.  He submitted that the total overall sentence offended the totality principle in that the total effective sentence was disproportionate to his overall criminality.

7. There is no need to discuss in this case, in any detail, either the one transaction rule or the totality principle.  Both have been exhaustively examined in decisions of this court.  As to the one transaction rule, see R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554; and as to the totality principle, see Roffey v The State of Western Australia [2007] WASCA 246.

8. However this case is approached, the guiding principle is whether the punishment imposed on the appellant reflected the total criminality of what he did:  Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, 623; and Walgar v The State of Western Australia [2007] WASCA 241 [9].

9. The appellant obtained a total of 87.3 grams of ecstasy.  Immediately after he obtained it, he supplied a significant portion of it and retained the rest, with an intention to further distribute it into the community.  The dominant sentencing considerations for offences of trafficking ecstasy are general and personal deterrence.  Because of this, matters personal to the appellant carry less weight.  His Honour had regard to all relevant sentencing considerations.  He expressly reduced the terms of imprisonment to reflect the totality principle.  The total effective sentence imposed upon the appellant was within the range of sentences customarily imposed for offences of this type:  The State of Western Australia v Johnson [2010] WASCA 187; Rigney v The State of Western Australia [2008] WASCA 96; and Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49.

10. This court cannot intervene unless the appellant identifies an implied or express error by his Honour.  No such error has been demonstrated.  I would not give leave to appeal.  The appeal must be dismissed.

11. The orders I would make are:

    (1)Leave to appeal is refused.

    (2)The appeal is dismissed.