Jacomb v The State of Western Australia
[2021] WASCA 81
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JACOMB -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 81
CORAM: MAZZA JA
MITCHELL JA
BEECH JA
HEARD: 3 MAY 2021
DELIVERED : 11 MAY 2021
FILE NO/S: CACR 67 of 2020
BETWEEN: JOHN PETER JACOMB
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BIRMINGHAM DCJ
File Number : IND 1437 of 2017
IND 2201 of 2019
Catchwords:
Criminal law and sentencing - Offender pleaded guilty to 19 drug-related offences and two firearms offences - Where offender offended while on bail - Where offender spent a significant period of time in custody - Where sentencing judge expressly declined to give credit for part of the time spent in custody - Where sentencing judge expressly refrained from taking into account an aggravating factor - Whether sentencing judge erred in law in failing to give full credit for the time spend in custody
Legislation:
Sentencing Act 1995 (WA), s 6(1), s 6(2)
Result:
Leave to appeal on ground 2 granted
Appeal upheld
Appellant resentenced
Category: D
Representation:
Counsel:
| Appellant | : | C M Townsend |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | Armstrong Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Carlucci v The State of Western Australia [2019] WASCA 37; (2019) 276 A Crim R 472
Gullello v The State of Western Australia [2011] WASCA 261
House v The King (1936) 55 CLR 499
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Law v The Queen [2019] WASCA 81
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
MJS v The State of Western Australia [2011] WASCA 112
Narkle v Hamilton [2008] WASCA 31
NTH v The State of Western Australia [2020] WASCA 22
Seeto v The State of Western Australia [2014] WASCA 221; (2014) 246 A Crim R 386
Wellstead v The State of Western Australia [2019] WASCA 130
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
JUDGMENT OF THE COURT:
The appellant was convicted, following his pleas of guilty, of 16 counts of offering to sell or supply methylamphetamine, one count of conspiracy to sell or supply methylamphetamine, two counts of possession of methylamphetamine with intent to sell or supply and two possession of firearms offences.
The appellant was sentenced to a total effective sentence of 8 years 6 months' imprisonment. By the time he was sentenced, the appellant had spent a very long time - a total of 782 days - in custody. In fixing the length of the total effective sentence, the sentencing judge gave the appellant credit for a substantial majority of the time he had spent in custody, namely from 7 December 2016 to 13 March 2018 and from 5 March 2020 to 20 April 2020. However, the judge expressly declined to give credit for the period of 273 days from 7 June 2019 to 4 March 2020, saying that to do so would not adequately reflect the aggravating feature, in respect of one of the offences for which the judge was sentencing the appellant, that the appellant had offended while on bail. His Honour backdated the total effective sentence to commence on 19 November 2018.
The appellant now appeals against his sentence on two grounds:
(1)his total effective sentence breached the first limb of the totality principle; and
(2)the judge erred in law in failing to give credit to the appellant for the time he spent in custody from 7 June 2019 until 4 March 2020 on the basis that to give such credit would not adequately reflect the aggravating features of the appellant's offending while on bail.
For the reasons that follow, we would uphold ground 2 and resentence the appellant to a total effective sentence of 8 years' imprisonment, backdated to commence on 27 February 2018.
The facts
The counts for which the appellant was sentenced were on two indictments. All but one were committed in 2016 and were charged on District Court indictment 1437 of 2017 (the 2016 offences). The remaining count, possession of methylamphetamine with intent to sell or supply, occurred in 2019 and was charged on District Court indictment 2201 of 2019 (the 2019 offence).
2016 offences
Between January 2016 and March 2016, police lawfully intercepted mobile telephone services that the appellant was using.[1] The intercepted calls and messages showed that the appellant had made a number of offers to sell or supply prohibited drugs, predominantly methylamphetamine.
[1] ts 215.
On 13 January 2016, the appellant received a text message from an associate who asked for a half-ball, being 1.75 g of methylamphetamine. The appellant agreed (count 1).[2]
[2] ts 215.
On the same day, the appellant called an associate, who asked for a half‑ball. The appellant agreed (count 2).[3]
[3] ts 216.
On 14 January 2016, the appellant called an associate and offered her a ball, being 3.5 g of methylamphetamine. She ordered 'just 100', which is evidently a lesser quantity but the meaning of which is otherwise unclear, and then amended this to '50' (again, the meaning of the reference to 50 is unclear) on a subsequent call (count 3).[4]
[4] ts 216
On 20 January 2016, the appellant received a call from an associate who asked for a quarter-ball, being 0.875 g of methylamphetamine, for $360. The appellant and the associate agreed a price of $400 (count 4).[5]
[5] ts 216.
Counts 5 and 6 are firearms offences. On 22 January 2016, a series of messages indicated that the appellant was intending to provide firearms to another person. Upon becoming alerted to the fact that the appellant was in possession of firearms, police performed a traffic stop to intercept him and seize the firearms. Police located two firearms in his vehicle. The first was a rifle, which the appellant had altered to cut down its length from 1090 mm to 530 mm (count 5). The second was a homemade submachine gun which, in its state when examined, was capable only of being fired as a single‑shot firearm (count 6).[6]
[6] ts 216.
The appellant was arrested and then released on bail to appear in the Armadale Magistrates Court on 19 February 2016.[7]
[7] ts 216 - 217.
A week after being released on bail, police again intercepted the appellant's communications, which showed that he was continuing to deal in methylamphetamine.[8]
[8] ts 217.
On 29 January 2016, the appellant called an associate who asked for a 'big one', meaning 3.5 g of methylamphetamine. The appellant agreed to supply it for $750 (count 7).[9]
[9] ts 217.
On 16 February 2016, the appellant called an associate and asked how much she needed. The associate asked for a half-ball, being 1.75 g of methylamphetamine, and the appellant agreed (count 8).[10]
[10] ts 217.
On 18 February 2016, the appellant received a call from an associate asking for an ounce, being 28 g of methylamphetamine, to which he agreed (count 9).[11]
[11] ts 217.
The next day, on 19 February 2016, the appellant appeared in the Armadale Magistrates Court in relation to the firearms charges (counts 5 ‑ 6). His bail was extended to his next appearance on 8 April 2016.[12]
[12] ts 217.
Again, after being released on bail, the appellant continued to deal methylamphetamine. He received a call from an associate asking for a half‑ball, being 1.75 g of methylamphetamine. The appellant said that he had only a weight, being 1 g, which he could provide (count 10). The associate agreed and requested that he provide the remaining 0.75 g later.[13]
[13] ts 217.
On 1 March 2016, the appellant received a call from an associate asking for a ball, being 3.5 g of methylamphetamine. The appellant agreed, telling her that it would cost $1,000 (count 11).[14]
[14] ts 217.
On the same day, the appellant received a call from an associate who asked for a half-ball, being 1.75 g of methylamphetamine. The appellant agreed and said that it would cost $550 (count 12).[15]
[15] ts 217.
Also on 1 March 2016, the appellant received another call from an associate wanting 1.75 g of methylamphetamine, to which he agreed (count 13).[16]
[16] ts 217.
On 3 March 2016, the appellant called an associate who asked for a weight, being 1 g of methylamphetamine. The appellant agreed (count 14).[17]
[17] ts 217.
On 4 March 2016, the appellant received a message from an associate asking for one and a half ounces, being 42 g of methylamphetamine. The appellant agreed and indicated that it would cost between $6,000 and $6,500 (count 15).[18]
[18] ts 217.
On the same day, the appellant called an associate who asked for a ball, being 3.5 g of methylamphetamine, to which he agreed (count 16).[19]
[19] ts 217.
On 6 March 2016, the appellant received a call from an associate asking for an ounce, being 28 g of methylamphetamine. The appellant agreed and indicated that it would cost $6,000 (count 17).[20]
[20] ts 218.
On 10 March 2016, the appellant received a call from a male associate who indicated that he had $40,000 to spend. The appellant subsequently called a female associate to discuss how to source the methylamphetamine.[21] The next day, the appellant called the male associate who indicated that he had between $40,000 and $60,000 to spend and was seeking 10 ounces, being 280 g, of methylamphetamine. On a subsequent call, the appellant confirmed with the male associate that the price of 10 ounces would be $40,000. The appellant had several discussions with the female associate where he conspired to source the methylamphetamine with the intent that he provide it to the male associate (count 18).[22]
[21] ts 218.
[22] ts 218.
On 12 March 2016, the appellant received a call from an associate who asked for a half-ball, being 1.75 g of methylamphetamine, to which the appellant agreed (count 19).
On 17 March 2016, police executed a search warrant of the appellant's residence. The appellant was home at the time. During the search, police located 2.25 g of methylamphetamine in a clipseal bag in a couch near where the appellant was sitting (count 20).
The total amount of methylamphetamine which the appellant offered to sell or supply between January 2016 and March 2016 was 126.125 g, and the total amount involved in the offending the subject of the 2017 indictment, that is including the conspiracy and possession charges, was 416.175 g of methylamphetamine.[23]
2019 offence
[23] ts 218.
The facts of the single count on the 2019 indictment were as follows.
On 6 June 2019, police executed a search warrant of the address where the appellant was living.[24] The appellant was home at the time. During the search, police located three clipseal bags and a set of digital scales in a jacket in the bedroom. The clipseal bags contained the following amounts of methylamphetamine: 0.26 g, 3.49 g of 49% purity and 2.77 g of 81% purity.
[24] ts 218 - 219.
Police located a further clipseal bag containing 2.03 g of methylamphetamine of 78% purity near the bed, as well as another set of digital scales and some unused clipseal bags.[25]
[25] ts 219.
The total amount of methylamphetamine found in the appellant's possession was 8.55 g.
Police also seized a mobile phone at the address which contained messages relating to the sale and supply of prohibited drugs.[26] The messages were over the period between 4 June 2019 and 5 June 2019 and related to the sale of a half-weight, being 0.5 g of methylamphetamine. The phone also contained what appeared to be a 'tick list' of sales, dated 14 March 2019.
[26] ts 219
When interviewed by police, the appellant denied that he was dealing in drugs.[27]
[27] ts 219.
The appellant's personal circumstances
The appellant was born in New Zealand and was 36 years of age at the time of sentencing.[28]
[28] ts 220.
The appellant completed school up to year 10. Between 15 and 21 years of age, he worked in the boat building industry.
The appellant moved to Australia in 2002. He gained employment in logistics with the Independent Grocers Alliance and also worked as a welder.
In 2015, there was a 'run-through' of the appellant's house in which he was shot by the offenders, resulting in the loss of one of his legs. The appellant has not had any legitimate employment since the incident.
The appellant has been in a relationship for 16 years. He has four children, aged between 1 and 14 years. The judge recognised the important role that the appellant played, not only in his own family, but also in the rearing of the children of his sister, who died in childbirth.[29]
[29] ts 221.
From 2014 through to the point in 2015 when the appellant was shot, he had been using drugs. The appellant's criminal history demonstrated his drug use prior to the incident. The appellant's drug use escalated after the incident and he started dealing drugs at a high level. The judge found that the incident was a catalyst for the appellant resuming his use of drugs at a greater level than previously.[30]
[30] ts 220.
By January 2016, the appellant was able to access and deal in significant quantities of drugs.
Time in custody
The appellant was arrested on 21 March 2016 in relation to the 2016 offences and was then released again on bail.[31]
[31] ts 218.
On 7 December 2016, the appellant was remanded in custody while awaiting trial on the 2016 offences.[32]
[32] ts 225.
The appellant's trial was ultimately aborted, and, on 13 March 2018, he was released on bail, having spent 462 days in custody.[33]
[33] ts 225.
The appellant was remanded in custody from 6 June 2019 (the date of the search the subject of the 2019 offence) until his sentencing on 20 April 2020, amounting to 320 days in custody.
Sentencing remarks
Factual findings
The 2019 offence was committed while the appellant was on bail awaiting trial for the 2016 offences.[34]
[34] ts 220.
The judge found that, in relation to the 2019 offence, the scales, unused clipseal bags and phone messages were evidence that the appellant was dealing drugs while on bail.[35]
[35] ts 219.
The judge accepted that the appellant was using drugs at the time but stated that it was not clear whether he was selling drugs to generate income to then buy drugs for his own use. Nevertheless, the judge found that the appellant's dealing was of a commercial nature.[36]
Aggravating factors
[36] ts 219.
The judge identified the following aggravating factors:
(1)The offending was not isolated; it involved the ongoing supply of methylamphetamine. The duration of the 2016 offending supported the conclusion that the appellant was a significant dealer at a high level who had the ability to source large quantities of methylamphetamine. The judge stated that people looked to the appellant for the supply of significant quantities of drugs in the community.[37]
(2)The appellant's offending was commercially motivated, as was indicated by the quantities of drugs involved and the sums of money referred to.[38]
(3)The appellant had the ability and willingness to provide firearms to others, enhancing the risk to people in the community. He also modified the firearms, the first, so that it could be concealed, and the second was a homemade submachine gun, albeit it did not have the capacity to be used as a submachine gun at the time it was apprehended.[39]
(4)The appellant committed offences while on bail on two occasions. He was granted bail while on remand for the firearms offences, yet continued to deal in significant quantities of methylamphetamine over the following three‑month period.[40] Further, the appellant committed the offence the subject of the 2019 indictment while on bail awaiting trial for the 2016 offences.[41] The judge remarked that this reoffending indicated that the offences were not out of character for the appellant.[42]
[37] ts 220, 227.
[38] ts 227.
[39] ts 227 - 228.
[40] ts 222.
[41] ts 222.
[42] ts 222.
The judge observed that the appellant's criminal history revealed persistent defiance and disregard for the law over the preceding six years, particularly in respect of drug and traffic matters.[43]
Mitigating factors
[43] ts 221 - 222.
The judge identified the following mitigating factors:
(1)The appellant's pleas of guilty.
(2)As already noted, the appellant played an important role in his family, supporting his children and the children of one of his siblings who died during childbirth.[44] However, the judge noted that this is a role that the appellant played while he continued to deal in illicit drugs.
(3)While in custody, the appellant had taken the opportunities provided to him to complete courses directed to his rehabilitation.[45]
[44] ts 221.
[45] ts 225.
The judge made the following findings as to the timing of the appellant's pleas of guilty. In respect of the 2016 offences, the appellant initially pleaded not guilty and the matters were scheduled for trial in February 2019. The appellant ultimately pleaded guilty in September 2019. The judge remarked that the lateness of the appellant's pleas of guilty reflected that the pleas did not indicate remorse but rather his recognition of the strength of the case against him.
Pursuant to s 9AA of the Sentencing Act 1995 (WA), the judge applied a discount of 10% to the individual sentences for the 2016 offences.[46] In respect of the 2019 offence, the judge applied a discount of 20% for the appellant's plea of guilty.[47]
[46] ts 223.
[47] ts 223.
The judge stated that the appellant's culpability was not reduced by the fact that he was a drug user.[48]
[48] ts 226.
While the appellant wrote to the judge to express his acceptance of responsibility and remorse, his Honour did not accept that the appellant was genuinely remorseful for his offending.[49] The judge remarked that the appellant had steadfastly defended the charges and accepted no responsibility for the offending until he subsequently entered his pleas of guilty.[50] His Honour considered that the appellant's sentiments expressed in his letter were simply a belated acceptance that his conviction was inevitable in the face of a strong case.[51] Further, the judge stated that the appellant's conduct and criminal history gave his Honour no confidence that the appellant had much capacity for remorse.[52]
[49] ts 221.
[50] ts 221.
[51] ts 224.
[52] ts 224.
The judge remarked that the appellant's responses to the opportunities to achieve rehabilitation in the past had been unsatisfactory.[53] His Honour also stated that the leniency which has been extended to the appellant for past offending has not dissuaded him from reoffending, and instead, the appellant reoffended in a more serious way at the beginning of 2016.
[53] ts 222.
The judge stated that the appellant was not entitled to any leniency for good character and that his previous offending underscored the importance of personal deterrence in sentencing.[54]
[54] ts 222.
The judge recognised the hardship that the appellant will experience as a New Zealand citizen, and his likely deportation to New Zealand once he has served his term of imprisonment, and noted that it will be difficult for the appellant's family. However, his Honour stated that the prospect of deportation is not a mitigating factor.[55]
[55] ts 224.
The judge had further regard to the impact of the COVID-19 pandemic on the operations at Hakea prison, and found that the restrictions on social visits and programs for sentenced prisoners will, in the medium term, make serving a custodial sentence more onerous.[56]
Sentence imposed
[56] ts 225.
The judge remarked that, in sentencing the appellant for the drug offences, he was required to give significant weight to general deterrence and the appellant's mitigating circumstances must be given less weight.[57]
[57] ts 226.
The judge observed that general deterrence was a major factor in sentencing for the firearms offences. Commonly in drug cases, the firearms are part of the tools of trade of those engaged in drug dealing, but this was not relevant in the appellant's case.[58] The judge found that, given the appellant's previous convictions for firearms offences, personal deterrence was a particularly relevant factor.[59]
[58] ts 227.
[59] ts 228.
The judge stated that he had had regard to the maximum penalty for each offence.[60]
[60] ts 228.
For the 2016 offending, the judge imposed the following sentences:
Count
Offence
Sentence
Count 1
Offer to sell or supply methylamphetamine
6 months' imprisonment concurrent
Count 2
Offer to sell or supply methylamphetamine
6 months' imprisonment concurrent
Count 3
Offer to sell or supply methylamphetamine
9 months' imprisonment concurrent
Count 4
Offer to sell or supply methylamphetamine
6 months' imprisonment concurrent
Count 5
Possession of a firearm
2 years' imprisonment reduced to 1 year cumulative
Count 6
Possession of a firearm
2 years' imprisonment concurrent
Count 7
Offer to sell or supply methylamphetamine
9 months' imprisonment concurrent
Count 8
Offer to sell or supply methylamphetamine
6 months' imprisonment concurrent
Count 9
Offer to sell or supply methylamphetamine
2 years' imprisonment concurrent
Count 10
Offer to sell or supply methylamphetamine
6 months' imprisonment concurrent
Count 11
Offer to sell or supply methylamphetamine
9 months' imprisonment concurrent
Count 12
Offer to sell or supply methylamphetamine
6 months' imprisonment concurrent
Count 13
Offer to sell or supply methylamphetamine
6 months' imprisonment concurrent
Count 14
Offer to sell or supply methylamphetamine
6 months' imprisonment concurrent
Count 15
Offer to sell or supply methylamphetamine
2 years 6 months' imprisonment
cumulative
Count 16
Offer to sell or supply methylamphetamine
9 months' imprisonment concurrent
Count 17
Offer to sell or supply methylamphetamine
2 years' imprisonment concurrent
Count 18
Conspiracy to supply methylamphetamine
4 years' imprisonment
head sentence
Count 19
Offer to sell or supply methylamphetamine
6 months' imprisonment concurrent
Count 20
Possession of methylamphetamine
9 months' imprisonment concurrent
For the 2019 offending, one count of possession of 8.55 g of methylamphetamine, the judge identified a sentence of 1 year 8 months' imprisonment as appropriate, but his Honour then reduced the sentence on totality grounds, as explained below.[61]
Totality
[61] ts 229.
The judge stated that some degree of accumulation was required in relation to the firearms offences.[62]
[62] ts 229.
Having regard to principles of totality, the judge stated that the overall criminality involved in the 2016 offending warranted a total effective sentence of 7 years 6 months' imprisonment.[63] To give effect to this, his Honour made the orders reflected in the table above.
[63] ts 229.
The judge set count 18, the conspiracy offence, for which a sentence of 4 years' imprisonment was imposed, as the head sentence. His Honour ordered that:
(1)count 5 (possession of a firearm) be reduced from 2 years' imprisonment to 1 year's imprisonment to be served cumulatively on count 18; and
(2)count 15 (offering to sell or supply methylamphetamine, for which a sentence of 2 years 6 months' was imposed) to also be served cumulatively.[64]
[64] ts 229 - 230.
The judge then stated that the total criminality involved in the offending the subject of both indictments warranted the total effective sentence of 8 years 6 months' imprisonment.[65]
[65] ts 229.
For totality reasons, the judge therefore reduced the sentence for the one count of possession of methylamphetamine the subject of the 2019 indictment to 1 year's imprisonment. His Honour ordered that the sentence be served wholly cumulatively on the sentence for the 2016 offending, to give a total effective sentence of 8 years 6 months' imprisonment.
The judge ordered that the appellant be eligible for parole.[66]
Backdating
[66] ts 230.
As outlined above, the appellant spent a total of 782 days in custody on remand, comprising 462 days between 7 December 2016 and 13 March 2018 and 320 days between 6 June 2019 and his sentencing on 20 April 2020.
The judge explained his approach to the question of when the sentence should be taken to have commenced as follows:[67]
I have regard now as to when the sentence should commence. Your return to custody on 7 June 2019, following your reoffending whilst on bail in respect of the matters, the subject of indictment 2201 of 2019, and remanded on that matter without bail since that time. In my view, to simply allow your sentence to be backdated for all of the time in custody for your offending would fail to reflect the feature of the offending that it's been committed whilst on bail for similar serious offending.
In fixing the sentence imposed on 2201, I have not had regard to the aggravating feature for which the need to give weight to personal deterrence would otherwise have been required.
In my view, that aspect can more properly be addressed by not backdating your sentence from the time you've spent in custody on that matter; a matter flowing directly from your reoffending whilst on bail. To simply give credit for the time in custody would not adequately reflect the aggravating feature of your reoffending whilst on bail.
It's important to note that the offending on all counts on indictment – sorry, counts 8 through to 20 on indictment 1437 were committed by you whilst on bail in relation to counts 5 and 6 on indictment 1437. You had committed offences whilst on bail. You lost your privileges and liberty. You were remanded into custody. You got bail and yet you, again, reoffended whilst on bail.
To simply give credit for the time in custody wouldn't adequately reflect the aggravating features of that reoffending both in relation to 1437 and in relation to the subsequent indictment. Accordingly, I'll not take that time in custody in determining the commencement of the total effective sentence.
The sentence in respect of 1437 of 2017 will be backdated 518 days to 19 November 2018. Such period being an (indistinct) of 472 days to reflect the time in custody before you had bail on those charges and the period subsequent to your conviction in this court on indictment 2201 of 2019 until today until when remanded into the sentence.
That is to say from your date of conviction, being on 5 March to 20 April, 46 days. Plus 472 days, being from the time you were committed into custody until released to bail on indictment 1437.
The period in indictment 2201, for which you are not granted, until your conviction on 5 March will not be taken into account for the purpose of commencement date of your sentence. Your sentence will, accordingly, be backdated to commence on 19 November 2018. (emphasis added)
[67] ts 230 - 231.
As can be seen, the judge ordered that the sentence be backdated 518 days[68] to commence on 19 November 2018.[69] The judge stated that this comprised the 472 days[70] that the appellant spent in custody from when he was committed on 7 December 2016 until he was released on bail on 13 March 2018, and the 46 days that the appellant spent in custody between his conviction for the 2019 offence on 5 March 2020 and 20 April 2020.[71]
[68] It would seem that this should be 508 days.
[69] ts 231.
[70] Again, this should be 462 days.
[71] ts 231.
Further, as is apparent, the judge expressly decided against backdating the sentence to give credit for the 273 days - the period from the appellant's return to custody on 6 June 2019 to 4 March 2020, the day before his conviction - and gave reasons for not so doing.
His Honour's approach in this respect is challenged by ground 2.
Grounds of appeal
The appellant advances two grounds of appeal.[72]
[72] Ground 2 was added by leave granted on 2 March 2021.
Ground 1 asserts that the total effective sentence of 8 years 6 months' imprisonment breaches the first limb of the totality principle.
Ground 2 contends that the judge erred in law in failing to give credit to the appellant for the time he spent in custody from 7 June 2019 until 4 March 2020 on the basis that to give such credit would not adequately reflect the aggravating features of the appellant's offending while on bail.
Appellant's submissions
Although ground 1 is framed by reference to totality, the substance of the appellant's written submissions in support of it is a complaint as to the judge's failure to give credit for the 273 days which the appellant spent on remand. The appellant submits that when regard is had to those days, the effect of the sentence imposed is that the appellant will be required to serve a total of just over 9 years 3 months (leaving aside the prospect of release on parole).[73]
[73] Appellant's submissions [33].
As to ground 2, the appellant accepts that the court has a discretion whether to take into account time spent in custody, but submits that the judge's reason for declining to do so reveal error in the exercise of the discretion.[74] He also accepts that a variety of mechanisms for giving credit for time in custody are available. However, he submits that the judge erred in that, in substance, his Honour used an aggravating feature of the 2019 offence, not to lead to a firmer sentence for that offence, but to justify a refusal to give credit, in fixing the commencement date, for the entirety of the time the appellant spent in custody after he had committed that offence. The proper approach, he submits, would be to determine the appropriate sentence for the 2019 offence by reference to all relevant sentencing factors, including the aggravating feature that it was committed while on bail, and then to exercise the discretion as to time spent in custody by fully backdating the commencement of the sentence.
[74] Appellant's submissions [36], [41].
Respondent's submissions
The respondent accepts that:[75]
(1)the sentence for the 2019 offence was to be determined having regard to the aggravating feature of being committed while the appellant was on bail for the 2016 offences;
(2)the judge expressly stated that he had not taken that aggravating feature into account in determining the length of the sentence for the 2019 offence, but instead decided not to backdate the total effective sentence by the time which the appellant had spent in custody as a result of the 2019 offence; and
(3)in proceeding in this fashion, the judge departed from the approach dictated by the Sentencing Act and thereby erred.
[75] Respondent's submissions [16] - [21]; appeal ts 11 - 12.
In its written submissions, the respondent submitted that no different sentence should have been imposed, and accordingly the ground of appeal should be dismissed. It submitted that the practical outcome of the judge's approach was that the aggravating factor of offending while on bail was taken into account in the overall sentencing exercise, as was the time in custody. The judge expressly balanced his exclusion of the aggravating factor in fixing the length of the sentence on the 2019 offence against his decision to omit the period of 9 months in custody for backdating purposes. The combination of the term of 1 year's imprisonment imposed for the 2019 offence and the 9 months spent in custody results in an effective sentence of 1 year 9 months' for the 2019 offence. That sentence is well within the range of sentences commonly imposed for such offending.[76]
[76] Respondent's submissions [22] - [26].
In oral submissions, counsel for the State retreated from the position summarised in the previous paragraph. Counsel accepted that, error having been established, this court was required to exercise its own independent discretion to determine the appropriate sentence.[77] Counsel submitted that, in independently exercising that discretion, this court should take the view that a longer total effective sentence than that imposed by the sentencing judge was appropriate, taking into account the aggravating feature that the 2019 offence was committed while on bail. If the court took the view (as counsel invited) that a total effective sentence of 9 years 3 months' imprisonment was appropriate and backdated the sentence to February 2018 (9 months earlier than the date selected by the sentencing judge) then the sentence imposed by this court would have the same practical effect as that imposed by the sentencing judge in terms of the parole eligibility date and the release date. Counsel ultimately accepted that, even in that event, it would be appropriate for the court to allow the appeal and impose the new different sentence, albeit that the new sentence would have the same practical effect in terms of the time at which the appellant may be released from custody.[78]
[77] Appeal ts 9.
[78] Appeal ts 10 - 11.
As will be seen, we accept the respondent's concession of error referred to in [82] above, but we do not accept its written submissions summarised in [83] above. In our view, counsel for the State was correct to retreat from the position summarised in [83] above in her oral submissions and to accept the proposition in the last sentence of [84] above. Even if the court took the approach to resentencing described in [84] above, the court would still have formed the view that a different sentence should have been imposed for the purposes of s 31(4)(a) of the Criminal Appeals Act 2004 (WA) (being a longer total effective sentence with an earlier start date). That would have been so even if the new and different sentence had the same practical effect in terms of the time at which the appellant would be eligible for parole and the time at which the sentence would end. In any event, as will also be seen, in exercising our independent sentencing discretion we have come to the view that a lower total effective sentence of 8 years' imprisonment should be imposed on resentence. That is, in our view a different sentence, which also has a different practical effect in relation to the time at which the appellant may be released from custody, should have been imposed in this case.
Disposition
The court has a discretion when determining whether it will make an allowance for time spent in custody and, if so, how much.[79] As this court observed in Narkle v Hamilton,[80] the manner in which the discretion is exercised will depend upon the individual circumstances of the case.
[79] MJS v The State of Western Australia [2011] WASCA 112 [217].
[80] Narkle v Hamilton [2008] WASCA 31 [40].
Credit can be given for time spent in custody by various mechanisms. These include backdating the commencement date, reducing the length of the sentence imposed or taking the time in custody into account in deciding as to the extent of concurrency or accumulation of sentences.[81]
[81] Gullello v The State of Western Australia [2011] WASCA 261 [14] - [22].
Where, as here, the judge considered the question of the extent of appropriate backdating, the appellant needs to demonstrate a material error of fact or law (in the House v The King[82] sense, which may be express or implied error) to justify appellate interference with his Honour's exercise of discretion.[83]
[82] House v The King (1936) 55 CLR 499, 504 - 505.
[83] MJS [220]; Gullello [22].
In our respectful opinion, the sentencing judge's reasons for declining to give credit for the 273 days in custody reveal an error of principle, essentially for the reasons submitted by the appellant in [81] and conceded by the respondent in [82] above.
In the framework of the Sentencing Act, the judge was required to impose a sentence, for each offence, that was commensurate with the seriousness of the offence: s 6(1) of the Sentencing Act. The seriousness of an offence is to be determined by taking into account (i) the maximum penalty, (ii) the circumstances of the commission of the offence, including the vulnerability of any victim, (iii) any aggravating factors and (iv) any mitigating factors.[84] It is well‑established that the commission of an offence while on bail for other offences is an aggravating factor.[85]
[84] Sentencing Act, s 6(2).
[85] See, for example, Seeto v The State of Western Australia [2014] WASCA 221; (2014) 246 A Crim R 386 [73].
Fixing the length of a sentence involves synthesising all of the relevant sentencing factors to arrive at the appropriate term, in other words the term that is commensurate with the seriousness of the offence.[86] As is explained in the 'instinctive synthesis' jurisprudence, it is neither appropriate nor necessary to attempt to identify the extent to which a particular aggravating factor increases the length of the appropriate sentence.[87] Consequently, the extent by which the appropriate sentence for the 2019 offence is increased by the aggravating factor that it was committed while on bail cannot be known. In those circumstances, there is no particular relationship, and certainly no direct relationship or equivalence, between:
(1)the length of time spent in custody after having been arrested for committing an offence while on bail; and
(2)the extent to which the appropriate sentence for the offence is increased by reason of the aggravating feature that it was committed while on bail.
[86] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [75].
[87] See for example, Wong v The Queen [74] - [76]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [37].
In effect, the judge assumed such an equivalence in declining to give credit for the time spent in custody after the appellant was arrested for committing the 2019 offence while on bail, while refraining from taking into account the fact that that offence was committed on bail as an aggravating feature in determining the appropriate sentence for it.
For these reasons, the judge's reasons for declining to give credit for the 273 days in custody reveal an error of principle, justifying and requiring intervention by this court.
When a sentencing judge errs in the House v The King sense, the appellate court does not assess whether and to what degree the error influenced the outcome. Rather, it is the appellate court's duty to exercise the discretion afresh in deciding whether a different sentence should have been imposed.[88] If, in the independent exercise of its discretion, it would impose the same sentence as the sentencing judge, then this court will dismiss the appeal, notwithstanding the error identified, on the basis that it considers that no different sentence should have been imposed.[89] Where, as here, the sentencing judge's discretion miscarried in respect of one component of a sentence, including, as in the present case, one of the individual sentences forming part of the total effective sentence, the whole of the sentence imposed by the primary judge should be set aside.[90]
[88] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [42]; NTH v The State of Western Australia [2020] WASCA 22 [163].
[89] Kentwell [35]; Wellstead v The State of Western Australia [2019] WASCA 130 [89].
[90] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [9]; Law v The Queen [2019] WASCA 81 [134] and cases there cited.
Applying these principles, for two reasons we reject the respondent's written submission summarised in [83] above that, notwithstanding that error has been demonstrated, the appeal should be dismissed on the ground that no different sentence should have been imposed.
First, the respondent's written submission emphasised that the judge expressly balanced his exclusion of the aggravating factor in fixing the length of the sentence on the 2019 offence against his decision to omit the period of 9 months in custody for backdating purposes. As explained in [91] above, there is no equivalence, or even direct relationship, between these two matters.
Secondly, the respondent's written submission that the effective sentence for the 2019 offence was within the range of sentences commonly imposed for an offence of that kind misses the mark. Once error is demonstrated, the question is not whether the sentence imposed was within the range. Rather, the task of the appellate court is to determine, in the exercise of its independent discretion, the appropriate sentence.
Consequently, we would uphold ground 2 and proceed to resentence the appellant.
Ground 2 having been upheld, it is not necessary to determine ground 1.
Resentencing
This court has the materials necessary to permit it to resentence the appellant, having been provided with updating information as to programs completed by the appellant while in custody.[91]
[91] Appeal ts 14.
The appellant's offending had a number of serious features.
The appellant's offending the subject of the 2016 offences revealed that he was conducting an ongoing drug dealing business, including dealing in drugs in substantial quantities, over a period of about nine weeks. He was engaged in that enterprise for commercial reasons. To the extent that he was dealing in drugs for the purpose of paying his own drug debts, that purpose is nevertheless a commercial one. The appellant committed 16 offences of offering to sell or supply methylamphetamine involving a total of 126 g. The offence of conspiracy involved the contemplated supply of 280 g of methylamphetamine. He was also found in possession of 2.25 g of methylamphetamine.
Further, counts 5 and 6, the firearms offences, were themselves serious and, as the judge rightly observed, called for a degree of accumulation. The appellant was unlawfully in possession of two weapons that he had modified to enhance their use, and he was intending to pass them onto another person.
Further, counts 7 ‑ 20 were aggravated by the fact that they were committed while the appellant was on bail.
The appellant's offending the subject of the 2019 offence was also aggravated by his committing the offence while on bail for the 2016 offences. His offence in 2019 indicated that he was, again, engaged in selling methylamphetamine.
There were limited mitigating factors in favour of the appellant apart from his pleas of guilty. The pleas of guilty in relation to the 2016 offences came very late in the process. The appellant was not of previous good character. He obtained some limited mitigation from having taken steps directed to his rehabilitation while in custody.
Sentencing principles in cases of drug trafficking were summarised by this Court in Carlucci v The State of Western Australia:[92]
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.
[92] Carlucci v The State of Western Australia [2019] WASCA 37; (2019) 276 A Crim R 472 [37].
We have taken into account the sentences imposed in reasonably comparable cases, including the cases referred to by the parties.
Like the sentencing judge, we would allow a discount under s 9AA of the Sentencing Act of 10% in respect of the individual sentences for the 2016 offences and 20% for the 2019 offence.
We would resentence the appellant as follows for the 2016 offences:
Count
Offence
Sentence
Count 1
Offer to sell or supply methylamphetamine (1.75 g)
6 months' imprisonment concurrent
Count 2
Offer to sell or supply methylamphetamine (1.75 g)
6 months' imprisonment concurrent
Count 3
Offer to sell or supply methylamphetamine (3.5 g)
9 months' imprisonment concurrent
Count 4
Offer to sell or supply methylamphetamine (0.875 g)
6 months' imprisonment concurrent
Count 5
Possession of a firearm (rifle)
2 years' imprisonment reduced to 1 year cumulative
Count 6
Possession of a firearm (homemade submachinegun)
2 years' imprisonment concurrent
Count 7
Offer to sell or supply methylamphetamine (3.5 g)
9 months' imprisonment concurrent
Count 8
Offer to sell or supply methylamphetamine (1.75 g)
7 months' imprisonment concurrent
Count 9
Offer to sell or supply methylamphetamine (28 g)
2 years 6 months' imprisonment
cumulative
Count 10
Offer to sell or supply methylamphetamine (1 g)
7 months' imprisonment concurrent
Count 11
Offer to sell or supply methylamphetamine (3.5 g)
10 months' imprisonment concurrent
Count 12
Offer to sell or supply methylamphetamine (1.75 g)
7 months' imprisonment concurrent
Count 13
Offer to sell or supply methylamphetamine (1.75 g)
7 months' imprisonment concurrent
Count 14
Offer to sell or supply methylamphetamine (1 g)
7 months' imprisonment concurrent
Count 15
Offer to sell or supply methylamphetamine (42 g)
3 years' imprisonment concurrent
Count 16
Offer to sell or supply methylamphetamine (3.5 g)
10 months' imprisonment concurrent
Count 17
Offer to sell or supply methylamphetamine (28 g)
2 years' 6 months' imprisonment
concurrent
Count 18
Conspiracy to supply methylamphetamine (280 g)
4 years' imprisonment
head sentence
Count 19
Offer to sell or supply methylamphetamine (1.75 g)
7 months' imprisonment concurrent
Count 20
Possession of methylamphetamine (2.25 g)
10 months' imprisonment concurrent
For the 2019 offending relating to possession of a total of 8.55 g of methylamphetamine, we would impose a sentence of 1 year 8 months' imprisonment, but reduce it to 6 months' imprisonment on totality grounds.
We consider that a total effective sentence of 8 years' imprisonment properly reflects the appellant's criminality in all its circumstances, including his personal circumstances. To arrive at that sentence we would:
(1)on grounds of totality, reduce the sentence on count 5 to 1 year and the sentence on the 2019 offence to 6 months; and
(2)order that the sentence on count 18 be the head sentence and that the sentences on count 5, count 9 and the 2019 offence be served cumulatively on count 18 and on each other. The remaining sentences are to be served concurrently with the sentence on count 18.
The sentence on count 18 is backdated to commence on 27 February 2018, to take account of all of the time spent by the appellant in custody on remand in respect of the 2016 offences and the 2019 offence. The appellant is to be eligible for parole.
Conclusion
For the above reasons, we would make the following orders:
(1)Leave to appeal on ground 2 is granted.
(2)The appeal is upheld.
(3)The sentences imposed by the sentencing judge are set aside and, in substitution, the appellant is resentenced as set out at [110] ‑ [113] above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Research Associate to the Honourable Justice Beech
11 MAY 2021
9
14
0