HSV v The State of Western Australia
[2020] WASCA 5
•15 JANUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HSV -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 5
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 4 DECEMBER 2019
DELIVERED : 15 JANUARY 2020
FILE NO/S: CACR 10 of 2019
BETWEEN: HSV
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LONSDALE DCJ
File Number : IND X of 2018
Catchwords:
Criminal law - Appeal against sentence - Drug offences - Whether total effective sentence infringes the first limb of the totality principle
Legislation:
Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(c)
Result:
Leave to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | S F Rafferty |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Seamus Rafferty Barristers & Solicitors |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Carlucci v The State of Western Australia [2019] WASCA 37
Gaskell v The State of Western Australia [2018] WASCA 8
Jneid v The State of Western Australia [2018] WASCA 67
Kabambi v The State of Western Australia [2019] WASCA 44
Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Olbrich [1999] HCA 54 (1999) 199 CLR 270
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397
The State of Western Australia v Smith [2019] WASCA 42
The State of Western Australia v Tittums [2018] WASCA 23; (2018) 271 A Crim R 298
Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1
JUDGMENT OF THE COURT:
Summary
On 18 January 2019, the appellant was convicted, on his pleas of guilty, of the five offences set out in the table below. He was sentenced to a total effective sentence of 13 years' imprisonment, comprised of the following individual sentences:
Count
Offence
Quantity
Maximum penalty
Sentence
Cumulative /Concurrent
1
Sale or supply of a prohibited drug (methylamphetamine)
Misuse of Drugs Act 1981 (WA) (Drugs Act) s 6(1)(c)
27.8 g
25 years and/or $100,000 fine
3 years 6 months
Cumulative
2
Possession of a prohibited drug with intent to sell or supply (cocaine)
Drugs Act s 6(1)(a)
630.07 g
25 years and/or $100,000 fine
5 years 6 months
Concurrent
3
Possession of a prohibited drug with intent to sell or supply (MDA)
Drugs Act s 6(1)(a)
138.3 g
(527 tablets)
25 years and/or $100,000 fine
3 years
Concurrent
4
Possession of a trafficable quantity of methylamphetamine with intent to sell or supply
Drugs Act s 6(1)(a)
977.82 g
Life imprisonment
9 years 6 months
Head sentence
5
Possession of stolen or unlawfully obtained property
Criminal Code (WA) s 417(1)
$33,075
7 years
18 months
Concurrent
Total Effective Sentence
13 years
The appellant was made eligible for parole and the sentence was backdated to 30 December 2018 to take into account the time that the appellant had spent in custody on remand.
It may be noted that the transcript indicates that the judge proposed to impose a sentence of five and a half years' imprisonment in respect of count 2.[1] However, when the sentencing judge indicated the sentences imposed at the end of her Honour's remarks, she said that a 5 year sentence would be imposed in respect of count 2.[2] The Certificate of Final Outcome signed by the sentencing judge and the Clerk of Arraigns indicates that the sentence imposed for count 2 was 5 years 6 months' imprisonment. That certificate is the formal record of the court.[3] We shall proceed on the basis that the sentence imposed in respect of count 2 was 5 years 6 months' immediate imprisonment. We note that, as the sentence for count 2 was ordered to be served wholly concurrently with other sentences, the resolution of this issue makes no difference to the total effective sentence imposed on the appellant.
[1] Primary ts 28.
[2] Primary ts 29.
[3] Rule 49(6) of the Criminal Procedure Rules 2005 (WA).
The appellant now appeals against the sentences on the sole ground that the total effective sentence infringes the first limb of the totality principle.
For the following reasons, while leave to appeal on that ground should be granted, the appeal must be dismissed.
Circumstances of offending
The sentencing judge made the following findings as to the circumstances of the appellant's offending, either expressly or by the incorporation of the facts read out by the prosecutor which were accepted by the appellant's counsel.
At 12.45 pm on Thursday, 1 March 2018, the appellant drove to a hardware store in Midland and parked his BMW sedan in the car park of the store. A woman approached the appellant's vehicle and sat in the front passenger seat. The appellant handed her some paper towel which contained 27.8 g of methylamphetamine (72% purity). She was stopped by police a short distance away. This supply of methylamphetamine to the woman was the subject of count 1 on the indictment.
At 4.10 pm on the same day, the appellant was stopped by police while driving in Welshpool. He was conveyed to his home address in Belmont, where police executed a Drugs Act search warrant.
During that search, police located five packages inside the channelling of the garage door of the premises:
(1)One package contained 5.57 g of cocaine (85% purity).
(2)A second package contained 100 MDA tablets weighing a total of 26.3 g (12% purity).
(3)A third package contained 100 MDA tablets weighing a total of 26 g (14% purity).
(4)A fourth package contained 227 MDA tablets weighing a total of 59.6 g (13% purity)
(5)A fifth package contained 100 MDA tablets weighing a total of 26.4 g (13% purity).
Police searched the appellant's bedroom and found three bundles of cash totalling $33,075, which was the subject of count 5 on the indictment. 3.72 g of methylamphetamine (80% purity) was located in the bedroom ensuite.
In the main living area and kitchen area of the premises, police located clip seal bags, elastic bands, digital scales, paper towel with printed logos and a vacuum sealing machine.
Police also conducted a search of a Toyota Prado which was parked at the premises. The vehicle was registered in the appellant's brother's name. The appellant arranged for the Prado to be registered in his brother's name to avoid drawing attention to himself.
Within the vehicle, police located a sophisticated secret compartment activated by hydraulic rams on either side of the lid, in which was located:
(1)A clip seal bag containing 499 g of cocaine (88% purity).
(2)A clip seal bag containing four individually wrapped packages of cocaine, weighing 27.8, 28.1, 27.8 and 27.9 g each (83 - 86% purity).
Police located two other vacuum-sealed bags containing 395 g of methylamphetamine (69% purity) and 496 g of methylamphetamine (80% purity).
The appellant declined to make any comment or assist the police at that time.
The Prado vehicle was seized and taken to a secure facility. On 15 March 2018, vehicle examiners conducted a search of the vehicle and located another hidden compartment in the front dashboard behind a temperature control panel. Located in this other hidden compartment were:
(1)Four packages of methylamphetamine, two which each contained 13.8 g (77 and 78% purity), one which contained 27.8 g (76% purity) and one which contained 27.7 g (74% purity).
(2)A remote control which activated the hydraulic rams to the secret compartment referred to at [13] above, so as to open and close the secret compartment.
A further search of the secret compartment referred to at [13] above located an additional package containing 13.9 g (67% purity) of cocaine.
The total weight of cocaine seized from the appellant's premises and the Prado vehicle was 630.07 g. This cocaine was the subject of count 2 on the indictment. The total weight of the 527 MDA tablets was 138.3 g.[4] This MDA was the subject of count 3 on the indictment. The total weight of methylamphetamine seized was 977.82 g. This methylamphetamine was the subject of count 4 on the indictment.
[4] The sentencing judge referred to 427 tablets at primary ts 25. This error as to the number of tablets was immaterial in circumstances where the judge correctly identified the weight of MDMA, and the error as to the number of tablets was in the appellant's favour.
The appellant's intention with respect to all of the drugs was to sell them for a profit, in a large scale commercial drug dealing operation. The sentencing judge observed:[5]
Your offending was self-evidently very serious. It involved a large quantity of drugs. You were obviously dealing for substantial profit. You had engaged a sophisticated system to avoid detection in the form of the secret compartment in the Prado and I note also that you had a BlackBerry device which is known to be associated with encrypted communications.
[5] Primary ts 26.
Submissions by appellant's counsel as to circumstances of offending
The appellant's counsel made written and oral submissions to the sentencing judge. In those submissions, counsel offered the following account of the manner in which the appellant came to offend.
The appellant was subject to a violent assault on 21 June 2017, in which he received injuries that prevented him from working for 6 months. Shortly afterwards, the appellant's partner of 6 years left him in acrimonious circumstances. He commenced using methylamphetamine and cocaine, and incurred a debt of about $20,000 to his drug dealer. The appellant commenced working as a 'runner' for his drug dealer from November 2017. The appellant commenced 'warehousing' drugs in January 2018 and continued to act as a 'runner' until his arrest on 1 March 2018. This involved the appellant distributing drugs stored at his home to 'mid-level drug dealers'. The appellant received approximately $5,000 per week and drugs for his own personal use as a reward for these activities. The $33,075 was not the appellant's money, but was 'going to go to those higher up the chain'.[6]
[6] Primary ts 21.
The sentencing judge did not make any express finding of fact which accepted this account of the appellant's involvement in the offending.
However, the prosecutor did not take issue with the account given, other than to say that it would involve the appellant receiving about $80,000, leaving $60,000 after repayment of his $20,000 drug debt. On that basis, the prosecutor submitted that the $33,075 located in the search could well have been the appellant's own profits.
Further, the sentencing judge did not indicate that she would not accept the statement made from the bar table without evidence.
The onus of satisfying the sentencing judge that the appellant was acting merely as a 'runner' or 'warehouser' of the drugs rested with the appellant on the balance of probabilities.[7] However, as the plurality noted in Olbrich:[8]
[I]t will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say 'if necessary' because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)
[7] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [27].
[8] Olbrich [25].
In the present case, the prosecutor did not controvert the appellant's account of the offending, except in relation to the ownership of the $33,075 located in his bedroom. The sentencing judge did not indicate that she was not prepared to act on the assertions made by the appellant's counsel from the bar table. Her Honour did not expressly reject the submissions advanced by the appellant's counsel.
It would have been preferable for the sentencing judge to have made express factual findings in relation to the matters advanced by the appellant's counsel. However, given the above context, it is appropriate to infer that her Honour implicitly accepted that the appellant undertook the drug dealing business as agent for another person, and received $5,000 per week plus drugs for his own use as compensation for his efforts.
Personal circumstances
The appellant was 31 years old at the time of sentence and 30 at the time of the offending. He did not have youth on his side. He was single at the time and he had no children. He comes from a supportive family and was very close to his siblings.
The appellant was educated to year 11, and had a good employment history until the assault referred to above. Although the sentencing judge considered that the appellant did not have any ongoing substance abuse issues, her Honour noted that the appellant commenced using ecstasy at the age of 19 and progressed to methylamphetamine in his mid to late 20s. Her Honour took into account that the appellant had very little by way of a criminal record, and sentenced him 'effectively on the basis that you are a first offender'.[9]
[9] Primary ts 27.
Sentencing judge's approach
The sentencing judge noted that the appellant's offending was very serious, involved a large quantity of drugs and that his dealing was for substantial profit. Her Honour also referred to the appellant's sophisticated system for avoiding detection.
The sentencing judge referred to the need for general and personal deterrence and considered that, although an element of personal deterrence was warranted, such deterrence was limited as the appellant had learnt his lesson.
The sentencing judge noted that the variety of drugs involved was an aggravating factor.
The sentencing judge noted there was little by way of mitigation, but then referred to the following mitigating factors:
(1)The appellant pleaded guilty on 30 July 2018 in the Perth Magistrates Court prior to the committal stage.
(2)The appellant was remorseful.
(3)The absence of any significant criminal record.
In fixing individual sentences, the sentencing judge applied a discount of 20% under s 9AA of the Sentencing Act 1995 (WA) in respect of the pleas of guilty. The sentencing judge applied a further discount of 20% (which, in our opinion, was generous) for another matter referred to in the confidential annexure to these reasons. Her Honour took into account the other mitigating factors.
Her Honour then referred to the totality principle, reduced the sentence for count 1 to 3 years 6 months' imprisonment and made it cumulative on the sentence for count 4. This resulted in a total effective sentence of 13 years' imprisonment.
The sentencing judge noted that the sentence was severe, but that it was reflective of Parliament having signalled its intent that those who deal in trafficable quantities of methylamphetamine can expect severe punishment. Her Honour considered that the increase in the maximum penalty to that of life imprisonment demonstrated this intention.
The totality principle
McLure JA (Steytler P and Miller JA agreeing) summarised the totality principle in Roffey v The State of Western Australia:[10]
The legal principles relevant to the disposition of this appeal are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law.
The appellant relies on the totality principle which comprises two limbs. The first limb 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. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing.
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up. (citations omitted)
[10] Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26].
The following general principles are also well established:[11]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(3)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(4)The real question is whether the total effective sentence imposed on the offender is unreasonable or plainly unjust.
[11] See, for example, Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Sentencing for drug offences - general principles
The general principles of sentencing offenders for serious drug offences are well established.[12] 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.
[12] See, for example, Jneid v The State of Western Australia [2018] WASCA 67 [81].
The appellant's submissions emphasise the characterisation of the appellant's role as a 'runner' or a person 'warehousing' drugs. However, it is important to recognise that the characterisation of an offender's role, even where possible, must not obscure an assessment of what the offender did.[13]
[13] Gaskell v The State of Western Australia [2018] WASCA 8 [129] and cases there cited.
Disposition
The appellant does not complain about any of the individual sentences. Rather, the ground of appeal is confined to alleging a breach of the first limb of the totality principle.
It may be noted that this appears to be the first case considered by this court in which the maximum penalty for an offence against s 6(1) of the Drugs Act is life imprisonment. On 18 September 2017, the maximum penalty for possession of 28 g or more of methylamphetamine was increased from 25 years to life imprisonment.[14] Such a quantity is defined as a 'trafficable quantity of methylamphetamine'.[15]
[14] Section 7(2) of the Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017 (WA) (2017 Amendment Act).
[15] Section 34(1A), read with sch VII item 8, of the Drugs Act.
In her second reading speech to the Bill for the 2017 Amendment Act, the Minister emphasised the harmful effects of methylamphetamine and observed:[16]
The effects of methamphetamine on our community are just devastating. It has to stop. The community quite rightly expects tough action against methamphetamine dealers and traffickers. Our government will give police and the judiciary the tools they need to prevent and deter this trade.
This legislation implements our commitment to reduce the supply of methamphetamine by increasing penalties for drug traffickers. The penalties will be some of the toughest in the country. The bill targets methamphetamine dealers, manufacturers and suppliers further up the drug supply chain who feed lower-end street dealers and addicts.
[16] Western Australia, Parliamentary Debates, Legislative Assembly, 16 May 2017, p 95 - 96 (M H Roberts, Minister for Police).
Customary sentencing standards for offences involving commercial dealings in prohibited drugs, particularly methylamphetamine prior to the penalty increase, were referred to in Gaskell[17] and Carlucci v The State of Western Australia[18] and cases there cited. Prior to the increase in the maximum penalty for trafficking in methylamphetamine, the courts were already imposing significant sentences for the offence. As was noted in Zanon v The State of Western Australia,[19] there are a number of cases (including some where the offender pleaded guilty) in which a total quantity of prohibited drugs of around 1 kg attracted sentences of 9 - 12 years' imprisonment.
[17] Gaskell [131] - [141].
[18] Carlucci v The State of Western Australia [2019] WASCA 37 [38] - [49].
[19] Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1 [174].
It is established that the maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence and demonstrates the Parliament's view of the gravity of the offence. The maximum penalty must be taken into account in determining, in each particular case, the appropriate sentence. If the Parliament, by a legislative amendment, increases the maximum penalty for an offence, the Parliament's new view of the gravity of the offence must be taken into account in deciding upon sentencing outcomes. An increase in the maximum penalty for the offence is an indication that sentences for that offence should be increased.[20]
[20] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31]; The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397 [121] - [123]; Liyanage v The State of Western Australia [2017] WASCA 112; (2017) 51 WAR 359 [277]; The State of Western Australia v Tittums [2018] WASCA 23; (2018) 271 A Crim R 298 [59] - [61]; The State of Western Australia v Smith [2019] WASCA 42 [24].
Therefore, at the time of the appellant's offending, Parliament's view of the relative seriousness of possession of trafficable quantities of methylamphetamine was reflected in the maximum penalty of life imprisonment. That view is to be taken into account in assessing the criminality of the offending conduct charged in count 4 on the indictment, as part of the overall criminality of all the offences which is to be reflected in the total effective sentence.
The overall criminality involved in all of appellant's offending was high. He was operating a commercial drug dealing business involving significant quantities of drugs. He was in possession of about a kilogram of methylamphetamine with intent to sell at least most of it to others as part of his regular business. He was dealing with a range of other different kinds of prohibited drugs. There was a significant element of planning and sophistication involved in the appellant's steps to conceal the drugs. He was engaged in a commercial operation for profit. While the appellant was acting as agent for another person, his payment of $5,000 per week plus drugs for his own use was a significant personal benefit for the appellant. It indicates the importance of his role in the particular drug dealing enterprise. The offending was not fleeting, isolated or out of character. The quantity, purity and variety of the drugs, and the value of the cash, found in the appellant's possession, together with the sophistication of the steps taken to conceal the drugs and the payment the appellant was receiving, indicate that the appellant was more than the mere 'foot soldier' suggested by his counsel's submissions.
There is no challenge, and in the circumstances there could be no challenge, to the individual sentence of 9 years 6 months' imprisonment imposed on count 4 (involving about 978 g of methylamphetamine with a high degree of purity). Some degree of accumulation was clearly required in respect of the other offending, particularly having regard to the additional criminality involved in count 2 (relating to the 630 g of cocaine) and count 5 (relating to the $33,075 cash). We are satisfied that, in all of the circumstances (including those referred to in the confidential annexure to these reasons), the degree of accumulation was not unreasonable or plainly unjust.
We have dealt with some additional matters to which counsel referred in the confidential annexure to these submissions.
Having regard to:
(1)the maximum penalties for the offences of which the appellant was convicted;
(2)the overall criminality involved in all of the appellant's offences, viewed in their entirety having regard to all relevant circumstances (including those referable to the appellant personally);
(3)the customary sentencing practices for these kind of offences; and
(4)all relevant sentencing factors and principles;
we are satisfied that the total effective sentence of 13 years' imprisonment imposed in this case was not unreasonable or plainly unjust.
Orders
For the above reasons, the following orders should be made in the appeal:
(1)Leave to appeal is granted on the sole ground of appeal.
(2)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Research Orderly to the Honourable Justice Mitchell15 JANUARY 2020
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