HV v The State of Western Australia

[2006] WASCA 242

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   "HV" -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 242

CORAM:   MARTIN CJ

ROBERTS-SMITH JA
McLURE JA

HEARD:   18 OCTOBER 2006

DELIVERED          :   16 NOVEMBER 2006

FILE NO/S:   CACR 54 of 2006

BETWEEN:   "HV"

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :YEATS DCJ

File No  :IND 1756 of 2005

Catchwords:

Appeal - Criminal law - Sentence - Supply of methylamphetamine - Possession of methylamphetamine with intent to sell or supply - Sentences to be served cumulatively - Whether "one transaction rule" should have been applied - Whether sentences should have been made concurrent - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr P J Urquhart

Respondent:     Ms L B Black

Solicitors:

Appellant:     Kott Gunning

Respondent:     State Director of Public Prosecutions

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

Johnson v The Queen (2004) 78 ALJR 616

Mill v The Queen (1988) 166 CLR 59

Pearce v The Queen (1998) 194 CLR 610

PP v The State of Western Australia [2004] WASCA 144

R v Faithfull (2004) 142 A Crim R 554

R v White [2002] WASCA 112

Ruane (1979) 1 A Crim R 284

Tulloh v The Queen (2004) 147 A Crim R 107

Case(s) also cited:

Attwell v The Queen (1990) 1 WAR 540

Barany v The Queen (2000) 114 A Crim R 426

Bellissimo (1996) 84 A Crim R 465

Benter v The State of Western Australia [2005] WASCA 245

Cameron v The Queen (2002) 209 CLR 339

Colangelo v The State of Western Australia [2004] WASCA 294

Dinsdale v The Queen (2000) 202 CLR 321

Duffy (1996) 85 A Crim R 456

Duong v The State of Western Australia [2006] WASCA 110

Hayes v The Queen [1981] WAR 252

Lovatt v The State of Western Australia [2004] WASCA 265

Lowndes v The Queen (1999) 195 CLR 665

Macri v The State of Western Australia [2006] WASCA 63

Marker v The Queen (2000) 135 A Crim R 55

Minchinton (1998) 104 A Crim R 502

R v Gallagher (1991) 23 NSWLR 220

Shaw (1989) 39 A Crim R 343

Sikaloski v The Queen [2000] WASCA 63

1. MARTIN CJ:  I agree with Roberts‑Smith JA that this appeal should be dismissed for the reasons which he gives.

2. ROBERTS-SMITH JA:  This is an appeal against sentence.

3. The appellant was convicted of one count of supplying a prohibited drug, namely methylamphetamine, to another and one of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply to another, following his plea of guilty before Yeats DCJ in the District Court at Perth on 15 March 2006.

4. He was sentenced to 8 months' imprisonment on count 1 and 2 years' imprisonment on count 2, to be served cumulatively.  An order was made that he be eligible for parole.

5. Leave to appeal in respect of each of the three grounds of appeal set out in the Appellant's Case was granted by Wheeler JA on 13 June 2006.

6. On 17 October 2006 the appellant filed a notice of discontinuance in respect of grounds 1 and 3.

7. The sole ground of appeal is now that her Honour erred by failing to order that the sentence imposed in respect of count 1 be served concurrently with the sentence imposed on count 2, as the two offences substantially arose out of the same set of circumstances.

8. Both offences were committed on the same day, 9 August 2005.  Detectives executed a search warrant at the appellant's residence.  They found the appellant and an associate in the garage.  When the associate was searched he was found to be in possession of approximately 3.5 grams of methylamphetamine.  A subsequent search of the garage located two clip‑seal bags (one of which was open) containing methylamphetamine.  That was the subject matter of count 2.  One bag contained 26.5 grams of the drug which was 22 per cent pure.  The other contained 17.6 grams of 21 per cent purity.  Count 2 therefore related to a total of 44.1 grams of methylamphetamine between 21 and 20 per cent purity.

9. The appellant subsequently admitted that the methylamphetamine found in the possession of his associate had been supplied to him by the appellant.

1. At sentencing it was assumed that the methylamphetamine found on the associate had come from the open clip‑seal bag.  On the appeal, counsel for the respondent accepted that was the reasonable inference.

2. Before the sentencing Judge, much was put by counsel for the appellant by way of mitigation.  Her Honour had regard to all that had been put before her, including the fact the appellant had pleaded guilty by the "fast‑track", had co‑operated with police and was dealing in part to support his own drug habit.  Her Honour made extensive reference to the appellant's personal and family background and circumstances.  In sentencing, she indicated that she had substantially reduced the penalty which she would otherwise have imposed in light of the mitigating matters which had been put to her.

3. In imposing the two sentences of imprisonment she gave no reason for ordering that they be served cumulatively.

4. The appellant's argument in this ground is that the circumstances of his criminal conduct were such that the two offences clearly fell within the "one transaction" rule and the sentences should therefore have been concurrent, producing an aggregate term of 2 years' imprisonment.

5. However, as McLure J (as her Honour was then) observed in R v Faithfull (2004) 142 A Crim R 554, [28], although it is a general rule, or a "good working rule" (Ruane (1979) 1 A Crim R 284) that when a number of offences arise out of the one transaction or continuing episode any terms of imprisonment should be made concurrent, that is certainly not a principle of law (R v White [2002] WASCA 112).

6. It is true that the offences here occurred about the same time.  But as counsel for the respondent submitted, they were quite different offences.  Count 1 reflected an actual sale or supply of 3.5 grams of the drug to a particular individual.  Count 2 reflected the appellant being in possession of a much larger quantity of the same drug, after that particular sale or supply, for sale or supply to others.

7. Certainly it would have been open for her Honour to have made the sentences concurrent, and in my view that would have been the better approach, but had she taken that approach it is clear one of the sentences (presumably that in respect of count 1) would have been longer than that actually imposed, so as still to produce the end result of a total of 2 years 8 months' imprisonment.  As I apprehend it, she reduced that sentence in order to make them cumulative, without exceeding due proportionality.

1. It is apparent that in that way her Honour took a "global view" of the offending and determined that an aggregate sentence of 2 years 8 months' imprisonment (equivalent to a sentence of 4 years' imprisonment prior to the amendments to the Sentencing Act 1995 (WA) which came into effect on 31 August 2003) was appropriate and proportionate to the criminality involved in both offences.

2. That approach was not in accordance with Pearce v The Queen (1998) 194 CLR 610, but nor was it a wrong approach (Johnson v The Queen (2004) 78 ALJR 616) so long as she did not have regard only to the total effective sentence to be imposed as her starting point. I do not think she did.

3. No issue is taken about the individual sentences.  In my opinion, they are both well within the range of sentences for offences of this kind, as indeed is the aggregate of 2 years 8 months.

4. Even had I been of the view that there had been a sentencing error in the approach taken by her Honour to first fix the overall sentence and then "allocate" or impose individual sentences to achieve her intended overall outcome, I would not have concluded that a different sentence should have been imposed (see s 31(4) of the Criminal Appeals Act 2004 (WA)).

5. I would dismiss the appeal.

6. McLURE JA:  I agree with Roberts‑Smith JA that the appeal against sentence should be dismissed.  The appellant was convicted of one count of supplying 3.5 grams of methylamphetamine to another for which he was sentenced to 8 months' imprisonment and one count of possession of 44.1 grams of methylamphetamine with intent to sell or supply for which he was sentenced to 2 years' imprisonment.  The learned sentencing Judge ordered that the sentences be served cumulatively.

7. The only ground of appeal is that the sentencing Judge erred by failing to order that the sentences be served concurrently.  The offences occurred on the same day and the methylamphetamine supplied to the third party came from, and reduced, the methylamphetamine in the appellant's possession the subject of count 2.  The appellant contended that the one transaction rule applied.  I discussed the content and application of the one transaction rule in R v Faithfull (2004) 142 A Crim R 554 at [25] ‑ [28] and PP v The State of Western Australia [2004] WASCA 144 at [9] ‑ [10]. The one transaction rule applies when the offences are considered to be "manifestations of the one criminal enterprise, transaction or episode". The rule can and does apply to closely

connected but different offences.  The two offences in this case are closely connected in time, nature and circumstances and in my view the one transaction rule applies.  However, that is not determinative of the question whether the sentences must be made concurrent.

1. In the ordinary course of sentencing for multiple offences, the Court will first determine the appropriate sentence for each offence, secondly assess whether the sentences should be made concurrent or cumulative in accordance with established principle and finally review the aggregate sentence by reference to principles of totality.  If the sentencing Judge considers that the application of the one transaction rule would result in an inappropriate measure of the total criminality involved in the conduct, then the appropriate aggregate result should be achieved, if practicable, by making the sentences partially or wholly cumulative:  Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 at 624.

2. The sentencing Judge in this case clearly came to the view that the total criminality of the conduct as a whole would not be adequately reflected by making the sentences concurrent or partially concurrent.  That is understandable in a context where the amount and purity of the drugs in question are relevant factors given significant weight in sentencing:  Tulloh v The Queen (2004) 147 A Crim R 107 at [50]. The greater the quantity and the higher the purity, the more widespread the deleterious ripple effect caused by the drug trafficker's conduct.

3. Even if, contrary to my view, the sentencing Judge erred in failing to order partial or total concurrency, I would not allow the appeal because I am not of the opinion that a different total sentence should have been imposed (see s 31(4) of the Criminal Appeals Act 2004 (WA)).