King v Kavanagh

[2002] WASCA 305

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   KING -v- KAVANAGH [2002] WASCA 305

CORAM:   ANDERSON J

HEARD:   25 SEPTEMBER 2002

DELIVERED          :   19 NOVEMBER 2002

FILE NO/S:   SJA 1081 of 2002

BETWEEN:   DALLAS ANTHONY KING

Applicant

AND

CHAD JASON KAVANAGH
Respondent

Catchwords:

Criminal law and procedure - Appeal against sentence - Possession of amphetamine with intent to sell or supply and possession of cannabis - 18 months' imprisonment not manifestly excessive - Resentenced for 5 previous drug offences - 6 months' imprisonment cumulative not manifestly excessive

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(2)

Sentencing Act 1995, s 78, s 80

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr M T Trowell QC

Respondent:     Mr R J Daily

Solicitors:

Applicant:     Mark Andrews & Associates

Respondent:     State Director of Public Prosecutions

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

Bellissimo (1996) 84 A Crim R 465

Watson v The Queen [2000] WASCA 119

Case(s) also cited:

Sikaloski v The Queen [2000] WASCA 387

1. ANDERSON J: On 30 May 2002, the appellant was convicted of one count of possession of amphetamine with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) and one count of possession of cannabis contrary to s 6(2) of that Act. These offences had occurred on 4 February 2002. He was also convicted of three driving offences committed on 23 May 2002, they being driving under suspension, failing to stop and reckless driving. He received a sentence of 18 months' imprisonment with parole for the amphetamine offence and 1 month concurrent for the cannabis offence. For driving under suspension, he was sentenced to 4 months concurrent and the other two driving offences were met with fines. His licence was cancelled for an aggregate period of 12 months.

2. Less than a year previously, the appellant had appeared in the Court of Petty Sessions at Midland on five drug charges and a receiving charge.  The drug charges, which were committed on 3 July 2001, were possession of cannabis, possession of a utensil with traces of cannabis, possession of MDMA, supplying amphetamine and possession of amphetamine with intent.  For these offences, he was sentenced to an aggregate term of 18 months' imprisonment with each sentence being suspended for 2 years, expiring on 13 August 2003.

3. The two drug offences committed on 4 February were therefore committed less than 6 months into the period of suspension and the driving offences committed on 23 May 2002 were committed about 9 months into the period of suspension. By s 78 of the Sentencing Act1995 it is provided that:

   "(1)If a court convicts a person of an offence the statutory penalty for which is or includes imprisonment and that offence was committed during the suspension period of suspended imprisonment imposed on the person in relation to another offence, the court — 

   (a)if it is a court of petty sessions, must deal with the person under section 80 … "

4. The statutory penalty for each of the drug offences committed on 4 February and for two of the three driving offences committed on 23 May included imprisonment. 

5. The sentences which the learned Magistrate passed were as follows:

   1.Possession of amphetamine with intent - 4 February 2002 - 18 months' imprisonment.

   2.Possession of cannabis - 4 February 2002 - 1 month concurrent.

   3.Driving under suspension - 23 May 2002 - 4 months concurrent; 9 months' cancellation of licence.

   4.Failing to stop - $50 fine.

   5.Reckless driving - $400 fine and 12 months' cancellation of licence.

6. Putting the fines and licence cancellations to one side, the result was an aggregate term of 18 months' imprisonment. 

7. In respect to the sentences which had been suspended, the learned Magistrate could have but did not make an order that the appellant serve the terms of imprisonment that were suspended.  Instead, he resentenced the appellant as follows:

   1.Possession of cannabis - 3 July 2001 - 1 month's imprisonment

   2.Possession of smoking utensil with traces of cannabis - 3 July 2001 - 1 months' imprisonment concurrent.

   3.Possession of MDMA - 3 July 2001 - 1 month's imprisonment concurrent.

   4.Supplying amphetamine - 3 July 2001 - 6 months' imprisonment "cumulative on any other term".

   5.Possession of amphetamine with intent to sell or supply - 3 July 2001 - 6 months' imprisonment concurrent.

   6.Receiving stolen property - 6 months' imprisonment concurrent.

8. At the conclusion of his sentencing remarks, the learned Magistrate said:

   "A total of 2 years' imprisonment, Mr King.  Eligible for parole."

9. It is therefore obvious that, although the sentence of 6 months' imprisonment with respect to the offence of supplying amphetamine was expressed to be "cumulative on any other term", his Worship intended all of the terms imposed with respect to the offences committed on 3 July to be served concurrently with each other, and that the aggregate of 6 months' imprisonment in respect to those offences was to be served cumulatively upon the aggregate of 18 months' imprisonment imposed with respect to the offences committed on and after 4 February 2002. 

10. By his grounds of appeal, the appellant challenges the sentence of 18 months' imprisonment for the offence committed on 4 February 2002 of possessing amphetamine with intent on the ground that that sentence was manifestly excessive and by an amendment to the grounds of appeal made without objection at the hearing of the appeal he also challenged the aggregate of 2 years' imprisonment on the ground that it was manifestly excessive.

11. It is to be remembered that the terms which were suspended on 14 August 2001 aggregated 18 months' imprisonment.  When those sentences were imposed, the Magistrate who imposed them was required to and no doubt did tell the appellant what the consequences might be should he offend during the period of suspension.  This appears to have made no impression on the appellant at all.

12. The facts relating to the offending which took place on 4 February 2002 were that on that date the appellant was travelling as a passenger in his brother's vehicle when it was stopped by police near the appellant's residence.  A canine search was conducted of the vehicle and secreted in the dashboard there was found to be a snaplock plastic bag containing methylamphetamine and five smaller bags also containing methylamphetamine.  There was also in the bag a small amount of cannabis.  The appellant had $350 in his pocket, made up of a $100 bill and five $50 bills.  The appellant's brother had $460 on his lap.  The appellant had a large number of small snaplock bags in his trouser pockets and on the floor of the vehicle was an open packet of glucose powder.  The appellant's residence was searched and entry was gained to a back room protected by a combination lock, in which there were found to be two sets of scales, a jar containing a small number of snaplock bags, a number of mobile telephones, a plate containing what were admitted to be traces of amphetamine and a credit card belonging to a third person which also had traces of what was admitted to be amphetamine.  The appellant admitted that it was he who used the room, although he stated that at least two other people knew the combination of the lock.

13. The appellant gave evidence, giving various explanations for the incriminating paraphernalia, none of which the Magistrate believed.  He found that the appellant and his brother had made a purchase of amphetamine (the purity of which is not known) shortly before they were stopped by police and at the time they were stopped the appellant was engaged in the cutting process, that is, dividing up the amphetamine into smaller portions which would then each be bulked‑up with glucose.

14. The weight of amphetamine was found to be 0.66 grams, but, as I have said, there is no evidence as to its purity.  In sentencing his Worship said:

    "As I said, the defendant and his witnesses are simply not credible and I reject their versions.  The prosecution carried the onus and in my view the intent in this case comes from all the circumstances and the presence of sizeable amounts of money given the defendant's personal circumstances with limited means, the presence of snaplock bags in the motor vehicle and in the home, the presence of scales at the home, the presence of glucose in the home and in the motor vehicle, the presence of smaller deal bags.

    Based on the evidence of the defendant and the brother, the drugs came in one container and the defendant had been involved in the motor vehicle in the cutting process as well.

    In my view the evidence is overwhelming and I am satisfied that the defendant was in possession and had the intent to sell and supply."

15. The maximum penalty on summary conviction for an offence under s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) was 4 years' imprisonment. The appellant is in his early 30s, so youth is no longer on his side. There really were no mitigating circumstances. The appellant was to be sentenced on the basis that he was dealing in amphetamines. The Magistrate was entitled to take into account in arriving at an appropriate sentence that this offence was committed during the early part of the term of suspended sentences for the same kind of offence. The appellant has a long record, although it must be said in his favour that many of the offences on that record are of a comparatively minor nature. Still, he presented as a man in his early 30s with poor antecedents who was involved in the drug trade on an ongoing basis, who had not been deterred from that activity by sentences aggregating 18 months' imprisonment passed less than a year before. I think it is impossible to contend that the sentence which was imposed was manifestly excessive.

16. As to the resentencing, the main complaint is that the aggregate sentence of 6 months' imprisonment should not have been made cumulative upon the 18‑month term.  Whilst it was conceded that it was proper to order cumulation because the offences were quite separate both in circumstance and time, it was said that the Magistrate paid no regard at all to the totality principle.  It is true that the phrase "totality principle" appears nowhere in his Worship's sentencing remarks, but it is also quite clear that the question of totality was at the forefront of his Worship's mind.  He might have, but did not, simply order the suspended terms to be now served.  Instead, he resentenced, reducing the aggregate of those terms from 18 months to 6 months.  It is to be inferred that, in taking this step, his Worship had the totality principle in mind.  Furthermore, he made orders for concurrency in respect to most of the nine prison terms which he imposed.  This is another plain indication that the learned Magistrate was very aware of the need to accommodate the totality principle.

17. In the end, the question is whether a total of 2 years' imprisonment for both sets of offending was manifestly excessive.  I am not persuaded that it was.  Six years have passed since this Court handed down its judgment in Bellissimo (1996) 84 A Crim R 465 and I have had no reason to qualify the view which I expressed in that case at page 471 in the following terms:

    "Amphetamine trafficking is now recognised by the Court to be in the higher range of seriousness in the scale of drug trafficking offences.  As a result of this, reference to earlier sentencing decisions is no longer a safe guide to the level of sentencing for current cases.

    The major sentencing considerations for offences of trafficking in dangerous drugs of addiction such as amphetamines, cocaine and heroin are general and personal deterrence, the major objective being to stop people doing it.  It is quite obvious to anyone concerned with criminal justice administration that trafficking in amphetamines is rife in this State and part of its tragedy is that very young people in the community are being exposed to it.  This has caused widespread community concern.  The sentences that have been imposed in the past do not seem to have worked as a deterrent…"

18. These views have been endorsed by this Court since.  See, for example, Watson v The Queen [2000] WASCA 119 per Malcolm CJ at [102].

19. The appeal must be dismissed.