Hva v The State of Western Australia

[2024] WASCA 156

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   HVA -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 156

CORAM:   BUSS P

MITCHELL JA

HEARD:   12 DECEMBER 2024

DELIVERED          :   12 DECEMBER 2024

PUBLISHED           :   13 DECEMBER 2024

FILE NO/S:   CACR 87 of 2024

BETWEEN:   HVA

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   PALMER DCJ

File Number            :   IND XXX of XXXX

Catchwords:

Sentencing - Application for leave to appeal - Appellant pleaded guilty - Home burglary - Possession of stolen property - Two counts of possession of a trafficable quantity of methylamphetamine - Whether sentence was manifestly excessive having regard to the appellant's mitigating circumstances - Whether total effective sentence infringed the first limb of the totality principle - Turns on own facts

Legislation:

Criminal Code (WA), s 401(2), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Result:

Leave to appeal refused
Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant	:	G Janssen
Respondent	:	No appearance

Solicitors:

Appellant	:	Janssen & Maluga Legal Pty Ltd
Respondent	:	Director of Public Prosecutions (WA)

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

ATH v The State of Western Australia [2021] WASCA 149

FZA v The State of Western Australia [2022] WASCA 124

Gaskell v The State of Western Australia [2018] WASCA 8

Jacomb v The State of Western Australia [2021] WASCA 81

Kabambi v The State of Western Australia [2019] WASCA 44

REASONS OF THE COURT:

1. At the conclusion of the hearing of the application for leave to appeal in this appeal against sentence, we ordered that leave to appeal be refused and the appeal be dismissed.  We said that we would publish our reasons for making those orders later.  These are our reasons for making those orders.

Summary

1. In July 2024, the appellant was sentenced to a total effective sentence of 9 years' imprisonment for the following four counts on an indictment:

Count	Offence	Maximum (minimum) penalty	Sentence	Accumulation
1	Home burglary (s 401(2) of the Criminal Code (WA))	18 years (2 years)	2 years	Cumulative
2	Possession of a prohibited drug (methylamphetamine) with intent to sell or supply it to another (s 6(1)(a) of the Misuse of Drugs Act 1981 (WA))	Life imprisonment	6 years (reduced from 7 years 3 months for totality)	Head sentence
3	Possession of property reasonably suspected to have been unlawfully obtained (s 417(1) of the Criminal Code)	7 years	8 months	Concurrent
4	Possession of a prohibited drug (methylamphetamine) with intent to sell or supply it to another (s 6(1)(a) of the Misuse of Drugs Act)	Life imprisonment	1 year (reduced from 2 years 9 months for totality)	Cumulative
Total effective sentence			9 years

1. The appellant was made eligible for parole and the sentences were backdated to take account of time spent in custody on remand.

2. The appellant now appeals against his sentences on two grounds.  Ground 1 contends that the individual sentence of 6 years' imprisonment for count 2 was manifestly excessive.  Ground 2 contends that the total effective sentence of 9 years' imprisonment infringes the first limb of the totality principle.

3. For the following reasons, neither ground of appeal has any reasonable prospect of succeeding.  Leave to appeal should be refused and the appeal should be dismissed.

Circumstances of offending

1. The sentencing judge made the following findings as to the circumstances of the appellant's offending, by reference to the agreed statement of material facts.

1. Just after midday on a day in April 2023, the appellant drove a co‑offender to the victim's home and parked outside the front gate of the house.  A short time later, the co-offender was captured on CCTV holding a crowbar and a balaclava as he scoped the property for an entry point.  The co-offender eventually gained entry and stole more than $10,000 worth of assorted items while inside.  The appellant's aiding of this home burglary offence is the subject of count 1.

2. The co-offender then came out of the house and got into the car driven by the appellant, who drove to a unit.  The appellant retrieved a black Rip Curl bag from the boot of the car.  The appellant then parked the car inside a garage at the unit and the garage door was closed.

3. A short time later, police attended the unit and gained entry by force.  They arrested the appellant and other persons.  Police located a clip seal bag containing a small quantity of methylamphetamine inside the appellant's wallet.  The Rip Curl bag which the appellant had carried was beside the car.  It contained a total of 325.4 grams of methylamphetamine (the subject of count 2) and $6,100 worth of cash (the subject of count 3).  

4. Police found the following items in various locations of the Rip Curl bag:

   1.Two clip-seal bags containing a total of 48.9 g of methylamphetamine (76% purity).

   2.A large clip-seal bag individually wrapped in Glad Wrap containing 138 g of methylamphetamine (74% purity).

   3.Two clip-seal bags wrapped together in Glad Wrap containing 55.1 g of methylamphetamine (76% purity) and 27.8 g of methylamphetamine (81% purity) respectively.

   4.A clip-seal bag wrapped in Glad Wrap containing 55.6 g of methylamphetamine (77% purity).

   5.$6,100 in cash.

   6.A tick-book, electronic scales, two spoons, numerous unused clip-seal bags, two marker pens, and a mobile phone.

5. Inside the unit's garage, police located most, but not all, of the items stolen from the victim's home.  Some items belonging to the victim were found in the Rip Curl bag.

6. After being arrested, the appellant was released on bail for the offences charged in counts 1 ‑ 3 of the indictment.

7. About six weeks later, police executed a search warrant at the appellant's rental unit.  The appellant was the sole occupant at the time of the search.  Police located a clip-seal bag containing 32.5 g of methylamphetamine (the subject of count 4).  Also at the appellant's unit, police located testosterone, digital scales, empty clip-seal bags, and glass smoking implements.  A search of the vehicle parked in the garage located a concealable bladed weapon and a piece of paper noting the appellant's 'PayID' details.

8. The sentencing judge found that the Rip Curl bag was the appellant's bag, and that the appellant was dealing in drugs.  The appellant must have made a substantial amount of money out of his commercial drug dealing.  A certain amount of the drugs which the appellant purchased to re-supply his drug dealing business would have been consumed by the appellant's own drug habit.[1]  The appellant was dealing drugs for commercial gain and materially benefited from his drug dealing.  The sentencing judge found the appellant was a 'significant drug dealer' who did not 'occupy a minor position in the hierarchy of drug dealing'.[2]

   [1] Sentencing ts 47.

   [2] Sentencing ts 53.

Personal circumstances

1. The sentencing judge made the following findings as to the appellant's personal circumstances.

2. The appellant was in his early forties at the time of sentencing.  He was the youngest of three children and had a very difficult childhood in large part due to his father's violence and alcoholism.  His parents were both deceased.  The appellant has two children.  His contact with his eldest child is intermittent.  The appellant had various partners over the years, but his relationships have tended to involve substance use.

3. The appellant attended various primary schools.  He found school difficult and was disruptive.  He was expelled from school in year 10.  Since then, the appellant had worked intermittently, but had otherwise been unemployed and had spent a substantial time in prison.

4. The appellant has an extensive criminal record comprising of traffic, property, nuisance, weapons possession and illicit drug-related offending.  The drug offending includes possession of prohibited drugs and drug paraphernalia, and possession of prohibited drugs with intent to sell or supply to another.  The appellant had been sentenced to terms of imprisonment on three prior occasions:

   1.In 2017, the appellant received a total effective sentence of 5 years' immediate imprisonment for home burglary and possession of MDMA, methylamphetamine and cannabis with intent to sell or supply to another.

   2.In early 2021, the appellant received a 10‑month cumulative sentence of imprisonment for possession of methylamphetamine with intent to sell or supply to another.

   3.Later in 2021, the appellant received a 6‑month cumulative sentence of imprisonment for reckless driving to escape police pursuit.

5. The offences charged in counts 1 - 3 of the indictment were committed only 6 months after the appellant's release from custody for the above offending.[3]  The offence charged in count 4 of the indictment was committed about a month later, while the appellant was on bail for the offences charged in counts 1 - 3 of the indictment.

   [3] In his Honour's sentencing remarks at ts 53 the trial judge said that the appellant committed these offences while he was on parole, but later corrected this at ts 57 - 58.

6. The appellant was a repeat offender for the purposes of s 401(4) of the Criminal Code, so that the minimum sentence for the home burglary offence was 2 years' immediate imprisonment.

7. The appellant was diagnosed with attention deficit disorder, depression and anxiety as a child.  He suffered from drug-induced psychosis as an adult and has been diagnosed as having complex post‑traumatic stress disorder.  The appellant has an extensive history of illicit drug use.  He first tried cannabis at 12 years of age and methylamphetamine when he was 13 years old.  The appellant had used other drugs, such as heroin, 'fantasy', DMT, ketamine and cocaine, but has not used them for many years.  The appellant used cannabis regularly until about eight years ago.  He remained a heavy user of methylamphetamine.

8. At the time of sentencing, the appellant had completed counselling sessions addressing the underlying root causes of his drug addiction.  The appellant had worked on strategies to refocus his life, engaged with counselling and made consistent progress.  The report from the counselling service indicated that the appellant had shown significant growth in the areas of emotional development.

Sentencing judge's approach

1. The sentencing judge allowed a discount of 20% under s 9AA of the Sentencing Act 1995 (WA) for pleas of guilty at an early stage but not the first reasonable opportunity.[4]

   [4] Sentencing ts 50, 52.

2. The sentencing judge accepted that the appellant was genuinely remorseful, observing that:[5]

   It is evident from the expert evidence that I have received that the root cause of your offending seems to be the emotional issues that you have grappled with all of your life because of your traumatic childhood experiences.  By addressing those root issues, there is a prospect that you will address your offending.  Whilst this isn't - perhaps not the first time that you've attempted to do this, it is something which in my mind reveals remorse; I accept that your remorse is genuine.

   I've already mentioned the steps towards rehabilitation that you have taken.  The struggle with substances is an ongoing struggle for many people.  But it is to your credit that you sought to engage in rehabilitation services, which have at least the prospect of minimising the chances of your reoffending.

   [5] Sentencing ts 51.

3. The sentencing judge found that the seriousness of the appellant's offending was such that a sentence of imprisonment is the only appropriate sentence in respect of the offences.[6]

   [6] Sentencing ts 54.

4. For the home burglary offence the subject of count 1, the sentencing judge imposed the minimum term of 2 years' immediate imprisonment, having regard to the parity principle and the sentence received by the appellant's co-offender.[7]

   [7] Sentencing ts 54.

5. The sentencing judge indicated that he would have imposed a sentence of 7 years 3 months' imprisonment for count 2, 9 months' imprisonment for count 3,[8] and 2 years 9 months' imprisonment for count 4. Applying the totality principle, the sentencing judge found a total effective sentence of 9 years' imprisonment to bear a proper relationship to the overall criminality involved in all the offending, viewed in its entirety, and having regard to the circumstances of the case including those personal to the appellant. The sentencing judge gave effect to that conclusion by imposing the sentences set out in the table at [2] above.

   [8] Although the sentencing judge referred to a sentence of 9 months' imprisonment in this part of the transcript, the sentence ultimately imposed for count 2, as reflected in the certificate of final outcome, was only 8 months' imprisonment.

6. The sentencing judge stated, consistently with the submission advanced by the prosecutor which was not contradicted by counsel for the appellant, that the maximum penalty for the home burglary offence was 20 years' imprisonment. This appears to have been in error. The only circumstances affecting the maximum and minimum penalties pleaded in the indictment were that the victim's place was ordinarily used for human habitation and that the appellant is a repeat offender. None of the circumstances of aggravation defined in s 400(1) of the Criminal Code were pleaded (despite the reference in the margin of the indictment to s 401(1)(a) of the Criminal Code). As such, the offence charged in count 1 was not an 'aggravated home burglary' as defined in s 1(1) of the Criminal Code, for which the maximum penalty provided in s 401(2)(a) is 20 years' imprisonment. Rather, it was a home burglary not committed in circumstances of aggravation, for which the maximum penalty provided in s 401(2)(b) is 18 years' imprisonment. However, nothing turns on this apparent error in the present appeal. As the appellant received the minimum available penalty for the home burglary offence, the apparent mistake as to the available maximum penalty is immaterial.

General principles

1. The appellant's proposed grounds of appeal assert inferred, rather than express, error.  The relevant principles are well established, and were summarised in Kabambi v The State of Western Australia:[9]

   (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)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

   (3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases. 

   (4)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.

   (5)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.

   (6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence.  A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts.  A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively.  The real question is whether the total effective sentence is unreasonable or plainly unjust.

   [9] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

Ground 1: whether individual sentence for count 2 is manifestly excessive

1. The maximum penalty for the offence against s 6(1)(a) of the Misuse of Drugs Act charged in count 2 of the indictment is life imprisonment.

2. The general sentencing considerations for serious drug offences are well established, and were summarised in Gaskell v The State of Western Australia in the following terms:[10]

   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.  That is because it can be presumed that the greater the quantity and the purity, the greater the harm which may be done to the community.  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 almost always be subsidiary considerations, but they are not completely irrelevant.

   As this court has recently observed, while categorisation of the role of an offender may promote consistency, the utility of such an exercise is often limited by the extent of the available information.  Such a characterisation is not an essential task to be undertaken in every case, regardless of whether it is possible or appropriate.  The characterisation of an offender's role, even when possible, must not obscure an assessment of what the offender did.

   (citations omitted)

   [10] Gaskell v The State of Western Australia [2018] WASCA 8 [128] ‑ [129].

3. The appellant refers to three decisions of this court in support of the submission that the sentence imposed for count 2 was manifestly excessive:

   1.ATH v The State of Western Australia,[11] where the offender was convicted after trial of one count of possessing almost 1 kg of methylamphetamine with intent to sell or supply it to another.  The offender acted as a courier for little financial reward.  The court upheld a sentence of 7 years' imprisonment which was challenged on parity grounds.  This case is not a useful comparator to the present.  While the offender was in possession of a significantly greater quantity of methylamphetamine than the appellant and was convicted after trial, she was not conducting her own drug dealing enterprise and had significantly better antecedents than the appellant.  Further, the only ground of appeal in ATH concerned parity.

   2.Jacomb v The State of Western Australia,[12] where the offender was convicted of a series of drug offences arising out of his conduct of a commercial drug dealing operation, some of which were committed while the offender was on bail.  The 36‑year‑old offender pleaded guilty and was not of good character.  This court allowed an appeal against sentence on the ground that the sentencing judge in that case did not take account of time spent in custody on remand.  This court imposed a total effective sentence of 8 years' imprisonment on resentencing.  However, the individual offences involved much lower quantities of drugs than that involved in count 2, and much lower individual sentences were imposed.  This case is not a useful comparator for determining whether the individual sentence for count 2 in the present case was manifestly excessive.

   3.FZA v The State of Western Australia,[13] a search of the offender's residence located 28.9 g (count 1) and 13.46 g (count 2) of methylamphetamine.  The 38-year-old offender, who was jointly involved in a commercial drug dealing operation, pleaded guilty and was resentenced by this court to 3 years 6 months' immediate imprisonment for count 1 as part of a total effective sentence of 4 years' immediate imprisonment.  As this case involved a much lesser quantity of drugs, a lower level of the offender's involvement in the operation, an offender with better antecedents than the appellant and the application of the parity principle, it is of limited use as a comparator in the present case.

   [11] ATH v The State of Western Australia [2021] WASCA 149.

   [12] Jacomb v The State of Western Australia [2021] WASCA 81.

   [13] FZA v The State of Western Australia [2022] WASCA 124.

1. In the present case the appellant was conducting a commercial drug operation from which he was found to have derived a substantial amount of money.  For the purposes of that operation he was in possession 325.4 g of methylamphetamine - over 11 times the threshold for a trafficable quantity of 28 g of methylamphetamine.  The appellant had previously been sentenced to significant terms of immediate imprisonment in 2017 and 2021 for drug dealing offences.  The offending the subject of count 2 was committed only shortly after the appellant's release from prison.  The appellant's poor antecedents elevated the significance of personal deterrence and community protection as sentencing considerations.  Even having regard to the appellant's early pleas of guilty, remorse and other mitigating factors which the record indicates the sentencing judge took into account, the sentence of 6 years' imprisonment imposed for count 2 cannot be regarded as unreasonable or plainly unjust.  Ground 1, which contends that the individual sentence for count 2 was manifestly excessive, has no reasonable prospect of succeeding.

Ground 2: totality

1. Ground 2, which asserts that the total effective sentence of 9 years' imprisonment infringed the first limb of the totality principle, is likewise without merit.  Although the offences charged in counts 1 - 3 were committed on the same day, the home burglary offence was separate to the offending charged in counts 2 and 3.  The offending charged in count 4 involved a continuation of the appellant's commercial drug dealing operation even after he had been released on bail for the previous offending.  At least some degree of accumulation of the appropriate individual sentences for counts 1, 2 and 4 was required to reflect the overall criminality involved in all of the appellant's offending.

2. Having regard to the maximum penalties for the appellant's offences, the overall criminality involved in the commission of those offences viewed in their entirety, the aggravating and mitigating circumstances (including the pleas of guilty), and all relevant sentencing factors (including the imperative to provide general deterrence and proper punishment), a total effective sentence of 9 years' imprisonment was not unreasonable or plainly unjust.  The total effective sentence of 9 years' imprisonment did not infringe the first limb of the totality principle.  Inferred error has not been even arguably established.

Orders

1. For the above reasons, neither of the grounds of appeal have any reasonable prospect of succeeding.  We therefore made the following orders at the hearing of the application for leave to appeal:

   1.Leave to appeal is refused.

   2.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KP

Associate to the Hon Justice Mitchell

13 DECEMBER 2024