Krispyn v The State of Western Australia
[2020] WASCA 136
•27 AUGUST 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KRISPYN -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 136
CORAM: BUSS P
MITCHELL JA
HEARD: 19 AUGUST 2020
DELIVERED : 27 AUGUST 2020
FILE NO/S: CACR 54 of 2020
BETWEEN: WAYNE ALAN KRISPYN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: VERNON DCJ
File Number : IND BUN 106 of 2018
Catchwords:
Criminal law - Drug offences - Sentencing - Whether sentencing judge erred in sentencing the appellant on the basis that his moral culpability was not reduced by the fact he was selling drugs to fund his own habit, and on the basis that he was not 'merely a user/dealer'
Legislation:
Misuse of Drugs Act 1981 (WA), s 6
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | K J Pearson |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Justine Fisher Barristers & Solicitors |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Apkarian v The State of Western Australia [2015] WASCA 67
Gaskell v The State of Western Australia [2018] WASCA 8
Potaka v The State of Western Australia [2017] WASCA 98
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Pham [2015] HCA 39; (2015) 256 CLR 550
Rowson v The State of Western Australia [2018] WASCA 82
JUDGMENT OF THE COURT:
The appellant was sentenced to a total effective sentence of 5 years 10 months' imprisonment, with eligibility for parole, in respect of a series of drug offences committed between 11 September 2017 and 10 January 2018. Generally speaking, most of the 24 counts of which the appellant was convicted related to sales of, or offers to sell, methylamphetamine. The appellant was a 48-year-old male who ran an auto-wrecking and towing company who was a regular user of methylamphetamine and who had a significant criminal record.[1] He pleaded guilty to the offences.[2]
[1] Primary ts 82 - 83.
[2] Primary ts 36 - 40.
The sentencing judge said that the admitted facts evidenced that the appellant was 'in the business of drug dealing and actively engaged in offering for sale on a regular basis quantities of methylamphetamine'. Offers to sell quantities between 'half a point' and half a gram were made from September 2017 to January 2018. The amount offered increased to 1.75 g on two occasions in January 2018 (counts 22 and 24). Also, between October and December 2017, the appellant sold 3.42 g (count 10), 6.61 g (count 16) and 41 g (count 19) of methylamphetamine. The appellant conceded to writers of his pre-sentence report that he was selling and supplying to others both to fund his longstanding methylamphetamine habit and for financial gain.[3]
[3] Primary ts 79.
The sentencing judge observed:[4]
Your counsel has said to me that your dealing in the quantities of methylamphetamine, the small quantities - so leaving aside count 19 - was to get free drugs or to get money for drugs to finance your longstanding methylamphetamine habit. That isn't mitigating, it's still commercial dealing. You're still selling drugs for money and to get a commercial gain, which in your case you spent on drugs because of your drug habit.
That doesn't mitigate the offending. There isn't any rule that says it's not as bad for someone to sell drugs in order to fund their own habit…, although it would be aggravating if you were purely in it to make money.
[4] Primary ts 79 - 80.
By ground 1, the appellant contends that the sentencing judge erred when she 'effectively determined that the appellant's moral culpability was not reduced by virtue of the fact that he was selling drugs to fund his own habit'. The appellant submits that the sale of prohibited drugs to fund a drug habit is not as serious as selling for purely financial gain. The appellant contends that his moral culpability should have been reduced by the fact he was selling to support his own habit.[5]
[5] Appellant's submissions, par 70.
There is no arguable merit in this ground of appeal. This court has recognised that the fact that an offender may have been motivated to deal in methylamphetamine to support his or her own drug habit is not a mitigating factor and does not reduce the seriousness of the offence.[6] The sentencing judge's approach was plainly correct. The appellant finds no mitigation in the manner in which he spent the money he earned from selling prohibited drugs. Further, the sentencing judge recognised that undertaking the business purely to make money would have aggravated the seriousness of the offending.[7] Her Honour did not find that the sale of prohibited drugs to fund a drug habit is not as serious as selling for purely financial gain, but merely found, correctly, that the appellant's motivation of supporting his own drug habit was not mitigating.
[6] See, for example, Potaka v The State of Western Australia [2017] WASCA 98 [32] (a case cited by the appellant). Nothing said in Apkarian v The State of Western Australia [2015] WASCA 67 [53], on which the appellant relies, suggests the contrary.
[7] Primary ts 80.
Later in her sentencing remarks, the sentencing judge observed:[8]
Given the level of dealing, I don't accept that you were merely a user/dealer, which is a term that tends indicate someone at the bottom of the hierarchy of drug distribution within the State. The low purity indicates you certainly weren't anywhere near the top or the middling purity [sic].
The relatively low purity indicates you weren't at the top of any hierarchy or anywhere near it. But you were able to supply significant quantities of methylamphetamine on a regular basis, or to get supply on a regular basis to on-sell, which means you were at least somewhere towards the middle of any distribution network and not at its lowest level. And on the face of it, if you're sourcing drugs to supply to other people, you are at a higher level of distribution in the business than the person you are supplying. (emphasis added)
[8] Primary ts 81.
The appellant's second ground of appeal contends that it was not reasonably open for the sentencing judge to be satisfied beyond reasonable doubt that the appellant was not 'merely a user/dealer'. The appellant submits that to sentence him as being more than 'merely a user/dealer' would be to 'place him on the scale at a level that would be aggravating'. As an aggravating factor, this was something of which the sentencing judge needed to be satisfied beyond reasonable doubt. The appellant submits that the 41 g involved in count 19 (which involved the appellant supplying drugs to an undercover police officer after being pressured by an intermediary who had previously on-sold to that undercover police officer) was an 'outlier' to the quantities involved in the other counts. The appellant submits that the other quantities were not 'significant' and his regular supply was equally consistent with the appellant 'being a heavy user/dealer at the lower end of the scale as it was with her Honour's more serious label'. The appellant contends that the fact there may be 'people lower than the appellant on the scale' was consistent with him being 'at the lower end himself' and 'supplying to contemporaries around him on the ladder and not to subordinates'.[9]
[9] Appellant's submissions, pars 84 - 92.
The appellant's second ground of appeal is also entirely without merit. It is well established that the appropriate focus is on what the appellant did rather than the label to be attached to his involvement.[10] The sentencing judge made specific findings about what the appellant did, and sentenced the appellant on the basis of those findings rather than by reference to a label to be attached to his involvement in the offending. There was no imperative for the sentencing judge to attach a label to the appellant, and her Honour did not arguably err in failing to find that the appellant was 'merely a user/dealer'. Nor is there any proper basis for the appellant's contention that an offender must be regarded as 'merely a user/dealer', and sentenced on that basis, in the absence of evidence proving the contrary beyond reasonable doubt.
[10] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [19]; R v Pham [2015] HCA 39; (2015) 256 CLR 550 [34]; Gaskell v The State of Western Australia [2018] WASCA 8 [129]; Rowson v The State of Western Australia [2018] WASCA 82 [31].
Further, on the admitted facts, the appellant sold methylamphetamine to a person who on-sold to another on a number of occasions. The appellant had offered to sell quantities of 1.75 g on two occasions, and had sold quantities of 3.42 g, 6.61 g and 41 g on the occasions referred to above. These facts indicated that he was not at the 'bottom of the drug distribution hierarchy', and so was not 'merely a user/dealer' in the sense the sentencing judge indicated she was using that phrase.
As neither of the appellant's two grounds of appeal have any reasonable prospects of succeeding, leave to appeal should be refused and the appeal should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Associate to the Honourable Justice Mitchell27 AUGUST 2020
9
5
1