Iio v The State of Western Australia
[2022] WASCA 38
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: IIO -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 38
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 21 MARCH 2022
DELIVERED : 1 APRIL 2022
FILE NO/S: CACR 79 of 2021
BETWEEN: IIO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GETHING DCJ
File Number : IND XXXX of XXXX
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GETHING DCJ
File Number : IND XXXX of XXXX
Catchwords:
Criminal law - Sentencing - Drug offences - Whether total effective sentence for drug offences and possession of money reasonably suspected to be unlawfully obtained infringes the first limb of the totality principle - Turns on own facts
Legislation:
Criminal Code (WA), s 417
Misuse of Drugs Act 1981 (WA), s 6
Result:
Extension of time granted
Leave to appeal granted
Application to adduce additional evidence dismissed
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | N R Sinton |
| Respondent | : | R G Wilson & S D Packham |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Al-Rafei v The State of Western Australia [2017] WASCA 4
Carlucci v The State of Western Australia [2019] WASCA 37; (2019) 276 A Crim R 472
Donaldson v The State of Western Australia [2020] WASCA 193
Gallagher v The State of Western Australia [2019] WASCA 108
Gaskell v The State of Western Australia [2018] WASCA 8
Ha v The State of Western Australia [2019] WASCA 69
Italiano v The State of Western Australia [2020] WASCA 115
Kirkup v The State of Western Australia [2018] WASCA 102
KJL v The State of Western Australia [2021] WASCA 65
Monisse v The State of Western Australia [2021] WASCA 52
MRSA v The State of Western Australia [2018] WASCA 217
Nguyen v The State of Western Australia [2019] WASCA 56
O'Malley v The State of Western Australia [2021] WASCA 8
Pearman v The State of Western Australia [2021] WASCA 106
The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302
The State of Western Australia v Paolucci [2020] WASCA 188
Tirkot v The State of Western Australia [2018] WASCA 41
Tran v The State of Western Australia [2019] WASCA 50
Turner v The State of Western Australia [2021] WASCA 132
JUDGMENT OF THE COURT:
Summary
On 10 December 2020, the appellant was sentenced to a total effective sentence of 5 years 3 months' imprisonment, with eligibility for parole, in respect of the following drug-related offences.
Indictment A
Count
Offence
Sentence
Cumulation
1
Sold a prohibited drug (3.59 g of MDMA - 79% purity - for $350)[1]
6 months
Concurrent
2
Sold a prohibited drug (28 g of MDMA - 79% purity - for $1,700)[2]
2 years
Cumulative
3
Sold a prohibited drug (56 g of MDMA - 79% purity - for $3,500)[3]
3 years 3 months
Head Sentence
4
Sold a prohibited drug (42.2 g of MDMA - 85% purity - for $2,650)[4]
3 years
Concurrent
5
Possession of a prohibited drug (2.7 g of cocaine - 35% purity) with intent to sell or supply to another[5]
6 months
Concurrent
[1] Contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (Drugs Act).
[2] Contrary to s 6(1)(c) of the Drugs Act.
[3] Contrary to s 6(1)(c) of the Drugs Act.
[4] Contrary to s 6(1)(c) of the Drugs Act.
[5] Contrary to s 6(1)(a) of the Drugs Act.
Indictment B
Count
Offence
Sentence
Cumulation
1
Possession of money ($1,640) reasonably suspected to have been unlawfully obtained[6]
6 months
Concurrent
2
Possession of a prohibited drug (3.52 g of MDMA - 64% and 76% purity) with intent to sell or supply to another[7]
6 months
Concurrent
3
Possession of a prohibited drug (8.89 g of MDMA - 69% purity) with intent to sell or supply to another[8]
1 year
Concurrent
[6] Contrary to s 417(1) of the Criminal Code (WA).
[7] Contrary to s 6(1)(a) of the Criminal Code.
[8] Contrary to s 6(1)(a) of the Criminal Code.
On 18 June 2021, the appellant filed an appeal notice seeking leave to appeal against the above sentences. As the appeal notice was filed out of time, the appellant requires an extension of time in which to appeal. The sole ground of appeal is, in effect, that the total effective sentence of 5 years 3 months' immediate imprisonment infringes the first limb of the totality principle.
The applications for an extension of time and for leave to appeal were referred to the hearing of the appeal.
For the following reasons, while we would grant the extension of time and leave to appeal, the appeal must be dismissed.
Circumstances of offending
Between January and April 2020, the appellant was the target of controlled drug operations. On four separate days, he sold quantities of MDMA to an undercover police operative for the sums referred to in the above table (counts 1 - 4 on indictment A).
In April 2020, police executed a search warrant of the appellant's residence and found him in a rear bedroom of the premises. A body search of the appellant located a clip-seal bag containing 2.7 g of cocaine (count 5 on indictment A). He had previously offered to supply an undercover operative with a free sample of cocaine.[9]
[9] Sentencing ts 17 - 18.
In March 2020, police conducted a traffic stop on a vehicle driven by the appellant. A search of the appellant's vehicle and person located $1,640 in cash (count 1 on indictment B) and two clip-seal bags containing a total of 3.52 g of MDMA powder (count 2 on indictment B). The appellant told police that $300 - $400 belonged to him and the rest had been given to him by friends to whom he intended to provide the drugs. He asked police if they could return the money so he could then return it to his friends as the drugs had been seized.[10]
[10] Sentencing ts 18 - 19.
When questioned during the traffic stop, the appellant told police that he had just dropped drugs off at a specified address before being apprehended. Police attended that address and located a clip-seal bag containing 31 capsules, which contained a total of 7.9 g of MDMA. They also located five more capsules containing a total of 0.99 g of MDMA. These amounts of MDMA were the subject of count 3 on indictment B.[11]
[11] Sentencing ts 19.
The appellant's offences were not isolated incidents but were rather part of an on going drug dealing enterprise for commercial gain to fund the appellant's cocaine addiction and pay off drug debts. The appellant was characterised by the sentencing judge as a mid-level street dealer who had the capacity to secure amounts up to 56 g, or 2 ounces, of MDMA and who sold drugs to persons who would on-sell to others.[12]
[12] Sentencing ts 29.
Personal circumstances
At the time of the offending, the appellant was aged in his 20s. He had migrated to Australia as a child. He completed year 10 of high school in Australia, completed an apprenticeship and was employed until he was made redundant in early 2020. The appellant had a history of drug use but only a modest criminal record, which the sentencing judge regarded as essentially neutral in the sentencing process. References spoke to the appellant's positive characteristics, remorse and progress towards rehabilitation.[13]
[13] Sentencing ts 30 - 31, 33.
Sentencing judge's approach
The sentencing judge regarded the weight (a total of 129.79 g having been sold) and purity of MDMA involved in the offending, that the dealing occurred in the context of an ongoing commercial operation and the level of the appellant's participation as aggravating factors.[14]
[14] Sentencing ts 29.
The judge also accepted that the appellant pleaded guilty at the first reasonable opportunity and said:[15]
So I'm going to reduce the length of the head sentence as I would have otherwise imposed by 20 per cent on this basis which is the maximum that I'm entitled to do so.
[15] Sentencing ts 30.
The reference to a discount of 20% appears to have been a slip of the tongue, as the sentencing judge would have been well aware that the maximum discount provided for by s 9AA of the Sentencing Act 1995 (WA) is 25% where the offender pleads guilty at the first reasonable opportunity. There is no complaint in the appeal grounds as to the discount applied under s 9AA. We infer that the judge did in fact apply a 25% discount.
The sentencing judge identified six factors which led his Honour to the view that the appellant, at the time of sentencing, was well on his way to rehabilitation and that his risk of reoffending was low. These were the appellant's demonstrated insight into the wrongful nature of his offending; his demonstrated remorse; the steps he had taken to address the cause of his offending; his expressed genuine desire to continue that rehabilitation; his periods of non-offending; and the positive support he had from family and friends.[16]
[16] Sentencing ts 32.
The judge noted the maximum penalties of 25 years' imprisonment and/or a fine of $100,000 for the offences against s 6 of the Drugs Act,[17] and the maximum penalty of 7 years' imprisonment for the offence against s 417(1) of the Criminal Code.
[17] See Drugs Act s 34(1)(aa).
After referring to the harm that illicit drugs cause and the significance of general deterrence as a sentencing consideration, the judge concluded that sentences of immediate imprisonment were the only appropriate sentencing option. His Honour then imposed the sentences referred to in the tables above. The appellant was made eligible for parole and, as the appellant had not at that time spent any time in custody, the sentences took effect from the date they were imposed.
General principles
The relevant principles concerning grounds of appeal asserting implied error, such as an infringement of the totality principle, are well settled. They were summarised by this court in Ha v The State of Western Australia[18] in the following terms:
(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. …
(3)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.
(4)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.
(5)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.
(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 (that 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 (that 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.
(7)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.
[18] Ha v The State of Western Australia [2019] WASCA 69 [28].
Disposition
There is no complaint that any of the individual sentences imposed by the sentencing judge are manifestly excessive. The question is whether it was open to the sentencing judge to consider that a total sentence of 5 years 3 months' imprisonment was commensurate with the criminality involved in all of the offending in all the circumstances (including those personal to the appellant). That is, was the total sentence imposed by the sentencing judge unreasonable or plainly unjust so that error is to be inferred from the outcome of the exercise of the sentencing discretion?
The general principles governing sentencing for serious drug offences are well established, and were summarised in Gaskell v The State of Western Australia,[19] in the following terms:
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)
[19] Gaskell v The State of Western Australia [2018] WASCA 8[128] - [129].
Most of the offences for which the appellant was sentenced involved dealing in MDMA. As this court has consistently observed, MDMA is a harmful drug which has the same high level of seriousness as methylamphetamine, cocaine and heroin.[20] It has also been recognised that, for sentencing purposes, there is no basis for making any significant distinction between MDMA, heroin and methylamphetamine.[21] A qualification to that observation must now be made given that the maximum penalty for offences against s 6 of the Drugs Act in respect of 28 g or more of methylamphetamine was increased to a life sentence in 2017. However, cases prior to the amendment increasing the maximum penalty that deal with sentences for offences involving large quantities of methylamphetamine remain informative.
[20] KJL v The State of Western Australia [2021] WASCA 65 [51] and cases there cited.
[21] Al-Rafei v The State of Western Australia [2017] WASCA 4 [20], citing The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 [121].
The appellant was engaged in the business of dealing in 'ounces' of MDMA (an ounce, or 28 g, being a common unit of dealing in prohibited drugs). In Carlucci v The State of Western Australia,[22] the court referred to a number of pre-amendment cases where sentences of 5 - 7 years' imprisonment were imposed on persons engaged in a commercial drug business that involved dealing in ounces of methylamphetamine rather than kilograms. The sentence imposed in this case is well within that common range.
[22] Carlucci v The State of Western Australia [2019] WASCA 37; (2019) 276 A Crim R 472 [39] - [42].
The parties have referred to a number of comparable cases on which they rely.[23] There are some similarities and some differences between those cases and the present matter. Having regard to the similarities and differences, the total sentence in the present case appears broadly consistent with customary sentencing practices.
[23] The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198; The State of Western Australia v Doyle [2017] WASCA 207; Tirkot v The State of Western Australia [2018] WASCA 41; Turner v The State of Western Australia [2021] WASCA 132; O'Malley v The State of Western Australia [2021] WASCA 8; Pearman v The State of Western Australia [2021] WASCA 106; Italiano v The State of Western Australia [2020] WASCA 115; The State of Western Australia v Paolucci [2020] WASCA 188; Monisse v The State of Western Australia [2021] WASCA 52; Kirkup v The State of Western Australia [2018] WASCA 102; Gallagher v The State of Western Australia [2019] WASCA 108; Donaldson v The State of Western Australia [2020] WASCA 193; MRSA v The State of Western Australia [2018] WASCA 217; Nguyen v The State of Western Australia [2019] WASCA 56; Tran v The State of Western Australia [2019] WASCA 50.
The appellant's offending was a serious example of its type. He was engaged in a commercial operation in selling ounces of MDMA, of a high purity, over six weeks.
In order to properly reflect the appellant's overall criminality, some accumulation of the individual sentences that were imposed was required. To have imposed concurrent sentences for each of counts 1 ‑ 5 on indictment A and counts 1 - 3 on indictment B would have resulted in the imposition of a total effective sentence which would not have properly reflected the appellant's overall criminality.
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), the matters referred to in the confidential annexure attached to these reasons and all relevant sentencing factors (including the imperative to provide general deterrence and proper punishment), a total effective sentence of 5 years 3 months' imprisonment was within the discretionary range properly open to the sentencing judge, even if it may be regarded as being towards the upper end of that range.
The total effective sentence of 5 years 3 months' imprisonment did not infringe the first limb of the totality principle. It was not unreasonable or plainly unjust. Inferred error has not been established.
Orders
As the appellant's delay in commencing the appeal has been adequately explained, we would grant the extension of time sought. We would also grant leave to appeal on the sole ground of appeal. However, for the above reasons, we would dismiss the appeal.
By application in an appeal filed on 17 March 2022, the appellant seeks leave to adduce additional evidence in the appeal. The appellant accepts that the additional evidence would be relevant only to the resentencing of the appellant in the event the ground of appeal was established. As the ground has not been established, the application should be dismissed.
Therefore, we would make the following orders:
1.The time for the appellant to commence the appeal is extended to 18 June 2021.
2.Leave to appeal is granted on the sole ground of appeal.
3.The appellant's application in an appeal filed on 17 March 2022 is dismissed.
4.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
1 APRIL 2022
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