Kok v Director of Public Prosecutions for Western Australia

[2022] WASC 31

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   KOK -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2022] WASC 31

CORAM:   MCGRATH J

HEARD:   2 FEBRUARY 2022

DELIVERED          :   3 FEBRUARY 2022

PUBLISHED           :   3 FEBRUARY 2022

FILE NO/S:   SJA 1071 of 2021

BETWEEN:   RANDALL JENADE KOK

Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE S MALLEY

File Number            :   AR 13199 of 2020 - 13207 of 2020

Catchwords:

Criminal law - Appeal against sentence - Multiple drug offences - Offer to sell or supply - Possession with intent to sell or supply - Total effective sentence of 2 years 6 months' immediate imprisonment - Whether sentence infringed the totality principle

Legislation:

Misuse of Drugs Act 1981 (WA), s 6, s 25
Criminal Code (WA), s 417

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	Ms N R Sinton
Respondent	:	Mr S D Packham

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

Apkarian v The State of Western Australia [2013] WASCA 67

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Hall v The State of Western Australia [2018] WASCA 151

Jones v The State of Western Australia [2018] WASCA 105

Juma v The State of Western Australia [2011] WASCA 54

Ness v The State of Western Australia [No 2] [2013] WASCA 56

Nguyen v The State of Western Australia [2019] WASCA 56

Pacini v Bradley [2021] WASC 179

Pearman v The State of Western Australia [2021] WASCA 106

Roffey v The State of Western Australia [2007] WASCA 246

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Stewart v The State of Western Australia [2014] WASCA 195

Truscott v The State of Western Australia [2016] WASCA 58

MCGRATH J:

1. On 3 September 2021, the appellant was sentenced in the Magistrates Court to a total effective sentence of 2 years 6 months' immediate imprisonment with eligibility for parole for seven drug offences and two offences of possession of stolen or unlawfully obtained property.

2. The appellant seeks leave to appeal against the total effective sentence.  The appellant's complaint is that the total effective sentence imposed infringed the first limb of the totality principle.  That is, the learned magistrate imposed a total effective sentence that was disproportionate to his offending conduct, having regard to all the circumstances including those referable to him personally.  For the following reasons, I have determined that leave to appeal is not granted and that the appeal is therefore, dismissed.

Magistrates Court proceedings

1. The offences and sentences imposed are outlined in the following table. 

Date of offence	Charge No		Offence	Max Penalty/Summary	Sentence imposed
13/11/2020	AR 13199/2020		Sell a prohibited drug, namely methylamphetamine  (0.2 gms) (s 6(1)(c) Misuse of Drugs Act)	25 years' imprisonment or $100,000 fine or both (4 years' imprisonment or $5,000 fine or both where dealt with summarily)	6 months' imprisonment (concurrent)
19/11/2020	AR 13200/2020		Sell a prohibited drug, namely methylamphetamine (0.2 gms) (s 6(1)(c) Misuse of Drugs Act)	25 years' imprisonment or $100,000 fine or both (4 years' imprisonment or $5,000 fine or both where dealt with summarily)	6 months' imprisonment (concurrent)
19/11/2020	AR 13201/2020		Possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply (3.31 gms) (s 6(1)(a) Misuse of Drugs Act)	25 years' imprisonment or $100,000 fine or both (4 years' imprisonment or $5,000 fine or both where dealt with summarily)	15 months' imprisonment (cumulative - head sentence)
19/11/2020	AR 13202/2020		Possession of a prohibited drug, namely cannabis, with intent to sell or supply (16.4 gms) (s 6(1)(a) Misuse of Drugs Act)	25 years' imprisonment or $100,000 fine or both (4 years' imprisonment or $5,000 fine or both where dealt with summarily)	6 months' imprisonment (concurrent)
19/11/2020	AR 13203/2020		Possession of stolen or unlawfully obtained property (s 417(1) Criminal Code)	7 years' imprisonment (2 years' imprisonment and a $24,000 fine where dealt with summarily)	3 months' imprisonment (concurrent)
8/12/2020	AR 13204/2020		Offer to sell or supply a prohibited drug, namely cannabis (7 gms) (s 6(1)(c) Misuse of Drugs Act)	25 years' imprisonment or $100,000 fine or both (4 years' imprisonment or $5,000 fine or both where dealt with summarily)	3 months' imprisonment (concurrent)
9/12/2020	AR 13205/2020		Possession of stolen or unlawfully obtained property (s 417(1) Criminal Code)	7 years' imprisonment (2 years' imprisonment and a $24,000 fine where dealt with summarily)	3 months' imprisonment (concurrent)
9/12/2020	AR 13206/2020		Sell a prohibited drug, namely methylamphetamine (0.5 gms) (s 6(1)(c) Misuse of Drugs Act)	25 years' imprisonment or $100,000 fine or both (4 years' imprisonment or $5,000 fine or both where dealt with summarily)	3 months' imprisonment (concurrent)
9/12/2020	AR 13207/2020		Possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply (0.93 gms) (s 6(1)(a) Misuse of Drugs Act)	25 years' imprisonment or $100,000 fine or both (4 years' imprisonment of $5,000 fine or both where dealt with summarily)	15 months' imprisonment (cumulative)
Total effective sentence: 2 years 6 months' imprisonment

1. The facts of the offending are accepted by the appellant.  On 27 July 2021, the prosecution made an application to amend the charges and facts in respect of the amounts of prohibited drugs the subject of charges AR 13201 of 2020, AR 13202 of 2020 and AR 13207 of 2020.  The appellant consented to the application.  Accordingly, the charges were amended.  The Prosecution Notices plead the amended amount of prohibited drugs particularised as being possessed by the appellant. 

2. On 3 September 2021, the prosecutor, when reading aloud the facts erroneously particularised the amounts of prohibited drugs as being the amounts prior to the amendment to the charges.  The variation in respect of the particularised amounts are minimal.  Charge AR 13201 of 2020 was amended from 1.52 grams to 3.31 grams; AR 13202 of 2020 was amended  from 17.7 grams to 16.4 grams and AR 13207 of 2020 was amended from 0.8 grams to 0.93 grams.[1] 

   [1] ts 3 - 4 (27/07/2021).

3. The respondent makes an application pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA) to adduce additional evidence, being three certificates of analysis in respect of charges AR 13201 of 2020, AR 13202 of 2020 and AR 13207 of 2020.  The certificates of analysis confirm the respective amounts of the prohibited drugs.  Further, the certificate of analysis in respect of the prohibited drug the subject of charge AR 13201 of 2020, confirms that the 3.31 grams of methylamphetamine had a purity of approximately 81%.  The appellant did not oppose the application to adduce the certificates of analysis.  I will receive the certificates of analysis. 

4. The appellant accepts that he pleaded guilty to the facts as amended on 27 July 2021.  That is, the appellant accepts that the amounts pleaded in the amended Prosecution Notices comprise the relevant particularisation.  I will determine the appeal on the amounts the subject of the amendments made on 27 July 2021. 

5. The offending conduct occurred on various dates over a period of approximately one month.  On 13 November 2020, the appellant used the messaging application known as 'Telegram' on his mobile telephone to communicate with an unknown person.  The appellant sold 0.2 grams of methylamphetamine to that person for $200.00 (AR 13199 of 2020).  On 19 November 2020, the appellant used the messaging application 'Telegram' to sell 0.2 grams of methylamphetamine to an unknown person (AR 13200 of 2020).

6. On 19 November 2020, the police searched a vehicle being driven by the appellant.  The police located digital scales and a storage device disguised as a drink container that held 3.31 grams of methylamphetamine (AR 13201 of 2020).  Further, the police located three separate clip seal bags containing 16.4 grams of cannabis (AR 13202 of 2020), cash in the amount of $785.00 and various item of property valued at $300.00 which were reasonably suspected of being unlawfully obtained (AR 13203 of 2020). 

7. On 9 December 2020, the appellant used the 'Telegram' messaging application to offer to sell 7 grams of cannabis to an unknown person.  The person wanted a lesser amount and therefore, declined the sale (AR 13204 of 2020).  On 9 December 2020, the appellant used the 'Telegram' application to sell 0.5 grams of methylamphetamine to an unknown person for $500.00 (AR 13206 of 2020).  The appellant received an electronic transfer of $500.00 from that person.  Further, on the same date the appellant was arrested inside a house and was found in possession of 0.93 grams of methylamphetamine (AR 13207 of 2020).  The police located a coded message on the appellant's mobile telephone negotiating the intended sale of the methylamphetamine.  During the search of the house the police located $800.00 and an iPhone X valued at $920.00, both of which were reasonably suspected of being unlawfully obtained (AR 13205 of 2020).

8. In addition, during the search of his vehicle on 9 November 2020 the appellant refused to provide the police access to his mobile telephone when he was requested to do so and therefore was charged with failing to comply with a requirement made by an officer contrary to s 25 of the Misuse of Drugs Act 1981 (WA).[2]  On 27 July 2020, the appellant pleaded guilty to that charge with the learned magistrate imposing a $500.00 fine.[3]  The appellant does not appeal that sentence.

   [2] Charge number AR 13208 of 2020.

   [3] ts 12 (27/07/2021).

9. The respondent makes an application pursuant to s 40(1)(e) of the Criminal Appeals Act to adduce the statement of material facts document prepared by the investigating officer in respect of AR 13208 of 2020.[4]  The respondent contends that the statement of material facts should be received in order to understand the context of the offending in AR 13208 of 2020.[5]  That charge is not the subject of this appeal.  On 27 July 2020, the learned magistrate did not hear the facts as outlined in the statement of material facts.  That is because the learned magistrate adjourned sentencing to a date to be fixed.  However, the learned magistrate did impose sentence on AR 13208 of 2020 given that the parties both agreed that the appropriate disposition was a fine.  The learned magistrate did not hear the facts, rather he relied upon the particularisation of the charge in the Prosecution Notice.  It is necessary that when an accused pleads guilty to a charge the prosecutor state aloud to the court the material facts of the offence before the court imposes sentence.[6]  The issue is whether I should receive the statement of material facts.  The appellant consents to the application.  I will receive the statement of material facts.  The context of the appellant's offending on 19 November 2020 is clear.  The facts of the charges the subject of this appeal were read aloud to the learned Magistrate.  However, the statement of material facts provides the context in which the appellant refused to permit the police access to his mobile telephone. 

   [4] Application in appeal by the respondent filed 4 January 2022.

   [5] Affidavit of Stuart Douglas Packham, legal practitioner, affirmed 4 January 2022 [7].

   [6] Hall v The State of Western Australia [2018] WASCA 151 [13] - [14].

Appeal

1. This is an appeal under pt 2 of the Criminal Appeals Act, which means that leave to appeal is required.[7]  An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, acted without or in excess of jurisdiction, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[8]

   [7] Criminal Appeals Act 2004 (WA), s 9(1).

   [8] Criminal Appeals Act 2004 (WA), s 8.

2. The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[9]  A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[10] 

   [9] Criminal Appeals Act 2004 (WA), s 9(2).

   [10] Criminal Appeals Act 2004 (WA), s 9(2); Samuels v The State of Western Australia[2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler and Roberts‑Smith JJA).

3. The court may dismiss or allow the appeal and may set aside the sentence and substitute a sentence that should have been imposed.[11]

   [11] Criminal Appeals Act 2004 (WA), s 14.

4. The Notice of Appeal pleads that the learned sentencing magistrate erred in sentencing the appellant to a total effective sentence of 2 years and 6 months' imprisonment and infringed the first limb of the totality principle.[12] The ground therefore asserts implied error.  That is, the aggregated sentence for all the offences with respect of which the appellant was sentenced must be a just and appropriate measure of the total criminality viewed in their entirety, having regard to all the circumstances including the personal circumstances of the appellant.  It requires the court to be satisfied that the aggregated sentence is unreasonable or plainly unjust.[13]  It is not enough for an appellant to contend that the appellate court might have exercised the sentencing discretion in a different manner. 

   [12] Notice of Appeal filed 29 September 2021; Roffey v The State of Western Australia [2007] WASCA 246.

   [13] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325 (Gleeson CJ & Hayne J).

Merits to the ground of appeal

1. In considering the contention that the sentence infringes the first limb of the totality principle, the court must consider the seriousness of the offending, mitigating factors and comparative cases.[14] By s 6(2) of the Sentencing Act 1995 (WA) the seriousness of the offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, including any aggravating factors, any mitigating factors and the vulnerability of any victim of the offence.

   [14] Juma v The State of Western Australia [2011] WASCA 54 [34].

2. In imposing a term of 2 years 6 months' the learned magistrate took into account that the appellant had served 13 days in custody.[15]  His Honour further backdated the sentence to take into account a separate period during which the appellant was in custody in respect of the offending.  There is no complaint by the appellant that the learned magistrate erred in doing so.  However, the appellant submitted that in assessing the term of imprisonment it is necessary to recognise that the period of 13 days is incorporated into the total effective sentence. 

   [15] ts 9 (3/09/2021).

3. In respect of mitigating factors, the appellant pleaded guilty but not at the first reasonable opportunity and therefore, was afforded a 20% discount pursuant to s 9AA of the Sentencing Act.[16] 

   [16] ts 8 (3/09/2021).

4. The appellant is 29 years of age and is the father of two young children.  The appellant has a sound work history having previously worked in a FIFO position.  During the three month period of incarceration prior to sentencing the appellant commenced attending Narcotics Anonymous meetings and completed a certificate in numeracy and literacy. 

5. The appellant was not of good character having previously been convicted of criminal offences but had not previously been sentenced to an immediate term of imprisonment. The appellant has convictions for possession of prohibited drugs including a conviction for possessing amphetamine and cannabis in March 2020, possessing methylamphetamine in October 2020 and possessing methylamphetamine in December 2020.  Further, the appellant has numerous convictions for possessing drug paraphernalia in or on which there was a prohibited drug, giving false details to police, breach of bail undertaking and numerous convictions for driving whilst not holding a driver's licence.

6. The appellant referred to the following cases: Pacini v Bradley; [17] Pearman v The State of Western Australia;[18] Stewart v The State of Western Australia;[19] and Truscott v The State of Western Australia.[20]

   [17] Pacini v Bradley [2021] WASC 179.

   [18] Pearman v The State of Western Australia [2021] WASCA 106.

   [19] Stewart v The State of Western Australia [2014] WASCA 195.

   [20] Truscott v The State of Western Australia [2016] WASCA 58.

7. The respondent referred to the same cases as the appellant and also relied upon: Ness v The State of Western Australia [No 2];[21] Apkarian v The State of Western Australia;[22] Jones v The State of Western Australia.[23]

   [21] Ness v The State of Western Australia [No 2] [2013] WASCA 56.

   [22] Apkarian v The State of Western Australia [2013] WASCA 67.

   [23] Jones v The State of Western Australia [2018] WASCA 105.

8. I have read each of the cases on many occasions and did so again prior to the hearing of the appeal.  It is not necessary to set out the circumstances of each case.  Each case is characterised by different circumstances.  After considering the authorities, I am satisfied that the cases do not support a finding that the total effective sentence imposed was excessive and thereby, breached the totality principle.

9. The appellant's offending was not a one‑off aberration but comprised an ongoing course of conduct over a period of approximately a month.  The appellant persistently engaged in the supply of prohibited drugs.  The offending involved both cannabis and methylamphetamine.  This was a commercial enterprise undertaken to support the appellant's own substance abuse issues.  There is no mitigation in the appellant being a user of prohibited drugs.[24]  The appellant used coded messages to negotiate the sale of the prohibited drugs, possessed the accoutrements of a person dealing in drugs including digital scales, mobile phones and clip seal bags and had a reasonably significant amount of cash at hand.  The appellant was convicted as an active, persistent distributor of drugs in the community for commercial gain. 

   [24] Nguyen v The State of Western Australia [2019] WASCA 56 [34].

10. The sentence imposed is at the higher end given the entirety of the circumstances of the offending and all relevant sentencing factors but not so high as to support a finding of implied error. 

Conclusion

1. Accordingly, I have determined that leave to appeal is not granted and that the appeal is dismissed.

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

AS

Associate to the Honourable Justice McGrath

3 FEBRUARY 2022