Labrook v Director of Public Prosecutions (WA)
[2025] WASC 106
•3 APRIL 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: LABROOK -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2025] WASC 106
CORAM: MUSIKANTH J
HEARD: 3 APRIL 2025
DELIVERED : 3 APRIL 2025
FILE NO/S: SJA 1079 of 2024
BETWEEN: AARON KARL LABROOK
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent
ON APPEAL FROM:
For File No: SJA 1079 of 2024
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE HARRIES
File Number : JO 100006/2024 & JO 100007/2024
Catchwords:
Criminal law - Appeal against sentence - Possession of unlawfully obtained money - Possession of prohibited drugs - Where sentence imposed was cumulative - Whether term of imprisonment infringes first limb of totality principle - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Code 1913 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Representation:
Counsel:
| Appellant | : | M L Tudori |
| Respondent | : | N Sinton |
Solicitors:
| Appellant | : | Tudori Hager Grubb |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bradley v The State of Western Australia [2024] WASCA 94
Curry v The State of Western Australia [2023] WASCA 10
Dahl v Arnold [2020] WASC 224
Gaskell v The State of Western Australia [2018] WASCA 8
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Hishmeh v The State of Western Australia [2025] WASCA 14
Kabambi v The State of Western Australia [2019] WASCA 44
Roffey v The State of Western Australia [2007] WASCA 246
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Stipkovich v The Queen [2018] WASCA 63
The State of Western Australia v Hyder [2011] WASCA 256
Trang v The State of Western Australia [2010] WASCA 44
MUSIKANTH J:
Introduction
On 14 October 2024, the appellant was convicted, on his pleas of guilty in the Magistrates Court, of possessing: (a) $30,145 of unlawfully obtained money contrary to s 417(1) of the Criminal Code 1913 (WA) (unlawful possession charge); and (b) 9.86 gm of methylamphetamine contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA) (drug charge).
The appellant was sentenced to four months imprisonment on the unlawful possession charge and to three months imprisonment on the drug charge.
The magistrate imposed these sentences after applying a 25% discount for an early plea pursuant to s 9AA of the Sentencing Act 1995 (WA), her Honour having accepted that the pleas were entered at 'the first opportunity following … negotiations'.[1]
[1] ts 17 October 2024, page 10.
The sentences imposed by her Honour were ordered to run cumulatively; both upon each other and also upon a prior sentence of 14-months imprisonment which the appellant was then already serving.
That prior sentence, which had been imposed by another judicial officer on 30 July 2024, related to two earlier offences of possessing stolen or unlawfully obtained property ($455,550 cash in total).
The appellant's earlier offending had occurred in December 2022, whilst the offending the subject of the charges before her Honour (and of this appeal) occurred only a few months afterwards on 2 April 2023.
The appellant now seeks leave to appeal against his aggregate sentence under pt 2 of the Criminal Appeals Act 2004 (WA) (CAA).
Leave must not be granted on a ground of appeal unless the court is satisfied the ground has a reasonable prospect of succeeding.[2]
[2] Criminal Appeals Act 2004 (WA) s 9.
For this threshold to be met, the ground of appeal must be shown to have a rational and logical prospect of succeeding, meaning a real prospect of success.[3]
[3] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
An appellate court can only intervene if the appellant demonstrates either an expressed or implied material error.[4]
[4] Bradley v The State of Western Australia [2024] WASCA 94 [38].
The facts
The factual backdrop against which the magistrate exercised her sentencing discretion is not disputed.
In short, the appellant was stopped by police whilst driving in Morawa on 2 April 2023.
Police approached the appellant's vehicle and observed white crystal material on his side window.
The police then proceeded to search the appellant's vehicle twice.
The first inspection revealed two bags of cash together amounting to $30,145.
The second, more thorough, inspection identified 9.86 gm of methylamphetamine scattered throughout his vehicle.
In subsequently entering his guilty pleas to the charges, the appellant necessarily accepted (for the purposes of the unlawful possession charge) that the $30,145 found in his vehicle was reasonably suspected of being stolen or otherwise unlawfully obtained, and (with respect to the drug charge) that he had in his possession 9.86 gm of methylamphetamine being a prohibited drug.
That said, her Honour accepted the appellant's plea on the drug charge effectively on the basis that the appellant had possession of the methylamphetamine for a very brief period in circumstances where he had just 'confiscated' the substance from his spouse, with whom he had been arguing, by grabbing the bag containing the substance from her, and that was how the bag came to be ripped and why there were shards of the drug all over the appellant's vehicle.[5]
[5] ts 17 October 2024, pages 8 - 9, 11.
Sentencing remarks
In her sentencing remarks,[6] the learned magistrate considered the appellant's prior convictions, the circumstances of his plea, the impact of his health issues on his incarceration, and the quantity of money and illicit substances involved in each offence.
[6] ts 17 October 2024, pages 10 - 12.
Her Honour noted that neither of the two offences of which the appellant was convicted was at 'the lower end of the scale'.
Ultimately, her Honour reasoned that the only appropriate sentences for the offences were terms of imprisonment.
In support of that conclusion, her Honour among other things noted, in connection with the drug charge, that the appellant had been before the court 'on numerous occasions in relation to drug-related offending'. Her Honour also referred to a decision of Archer J (as her Honour then was) in Dahl,[7] and also the weight of the methylamphetamine.
[7] Dahl v Arnold [2020] WASC 224.
Concerning the unlawful possession charge, her Honour among other things referred to the decision in Gaskell[8] where six months imprisonment had been imposed for $40,000 by way of an unlawful possession charge.
[8] Gaskell v The State of Western Australia [2018] WASCA 8.
The magistrate also observed, with respect correctly, that because the appellant was a sentenced prisoner she was limited to either imposing fines or terms of imprisonment.
Recognising that imprisonment was an 'option of last resort', her Honour concluded that for all the reasons given, she was of the view that it was the only appropriate penalty.
In indicating that the sentences of imprisonment which her Honour would be imposing would need to be served cumulatively, her Honour remarked that she needed to do this to 'avoid the perception that you can continue to offend without additional consequences or give the impression that there is a discount for bulk offending'.
Nonetheless, her Honour indicated that she would 'reduce' the penalties.
In her concluding remarks, after announcing a sentence of four months imprisonment for the unlawful possession charge and three months imprisonment for the drug charge, her Honour remarked that she had 'still' given 'some weight … to principles of totality' as 'otherwise' greater sentences would have been imposed.
The sentences were backdated for two days, and the appellant was made eligible for parole.
Ground of appeal
The appellant's sole ground of appeal is that the learned magistrate erred in imposing a total effective sentence which, in all the circumstances, breached the first limb of the totality principle.[9]
[9] Cf. Appeal Notice filed 14 November 2024; Appellant's written Submissions [1].
According to the appellant, her Honour erred by failing to impose a sentence which bore a proper relationship to the overall criminality, involved in all the offences viewed in their entirety, and having regard to the circumstances of the case including those referable to the appellant personally.
The appellant did not submit that there was any breach of the second limb of the totality principle, namely that the Court should not impose a 'crushing' sentence.
Legal principles
The legal principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that a total effective sentence infringes the totality principle, are well known.[10]
[10] See, for example, Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26] and Gaskell v The State of Western Australia [2018] WASCA 8 [127].
They were restated by the Court of Appeal in Kabambi v Western Australia, as follows:[11]
(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.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)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.
(4)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.
(5)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.
(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 (which 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 (which 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.
[11] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Noting these principles, and that the appellant appears to rely on the sentencing discretion having miscarried by way of 'implied' error, this Court can only intervene if it were to accept that the total effective sentence imposed was so unreasonable, or plainly unjust, that the court must conclude that a substantial wrong has occurred.
The appellant's submissions
According to the appellant, the cumulation of the terms of imprisonment imposed by her Honour resulted in a term which was manifestly excessive in all the circumstances.[12]
[12] Appellant's written submissions [35].
In oral submissions, counsel for the appellant explained that the appellant took no issue with the fact that the four-month sentence imposed for the unlawful possession charge was made to run cumulatively on the prior sentence.
He also explained that no issue was taken with the fact that a period of imprisonment, for a duration of three months, was imposed with respect to the appellant's conviction on the drug charge.
Rather, counsel submitted that the appellant's complaint was in substance that the three-month period should have been made to run concurrently with the four-month sentence imposed on the unlawful possession charge.
This was because of, as counsel put it, the 'uniqueness' of the factual circumstances surrounding the appellant's offending the subject of the drug charge to which I have referred.[13]
[13] See paragraph [18] above.
In this connection, the appellant effectively contends that his criminality is of a low order despite the quantity of the drug in his possession having been just under 10 gm.
Whilst accepting that the weight of methylamphetamine is 'still a relevant factor' in assessing the seriousness of the offence,[14] the appellant contends that weight is only one of the relevant factors.
[14] Dahl [34] (Archer J).
Thus, according to the appellant, the circumstances of the drug charge should not be classified as a serious example based on weight alone.
In this connection, the appellant says that 'if' a submission which the appellant made to the learned magistrate, to the effect that he had no intention to use the methylamphetamine for his personal use and was going to dispose of it was accepted by her Honour, then it could not be considered to be a 'serious example' or not at 'the lower end of the scale'.[15]
[15] Appellant's written submissions [31].
Regarding his sentence on the unlawful possession charge, as I have already observed, the appellant took no issue either with its four-month duration or with the sentence being served cumulatively on the prior sentence.
Nonetheless, I note that in his written submissions the appellant contends that the overall sentence of seven months was 'disproportionately high' when compared with the level of criminality reflected in the appellant's prior sentence which he was then serving.[16]
[16] Appellant's written submissions [37].
In this connection, the appellant contends that when one applies a mathematical comparison to the prior sentence (14-months for unlawful possession of $455,550) and the sentence imposed by her Honour on the unlawful possession charge (4 months for $30,145), what emerges is that the appellant effectively received an 'extra 50%' of the 'original sentence on top of' the 14 months.
This, according to the appellant, is 'manifestly excessive in an obvious comparative sense'.
Disposition
In my view, none of the appellant's contentions should be accepted.
I say this for the following reasons.
First, regarding the sentence imposed on the drug charge, whilst the weight of the drug is only one of the relevant factors in assessing the seriousness of the offence, as Archer J noted in Dahl it is nevertheless still relevant to the sentencing discretion.[17]
[17] Dahl [34] - [36].
In particular, as Archer J observed, 'the greater the amount of the drug, the greater the financial contribution to the market for illicit drugs'.[18]
[18] Dahl [34].
In that case Archer J remarked that 2.69 gm of methylamphetamine was a 'large quantity' for a charge of simple possession.[19]
[19] Dahl [33] read with [32].
Here, the weight of the drugs in the appellant's possession was not only more than three times the amount in Dahl but nearly five times beyond the amount which, by statute, a person is deemed to possess that drug with intent to sell or supply.[20]
[20] Misuse of Drugs Act 1981 (WA), s 11(a) and sch V, div 1, item 82.
Secondly, and particularly in those circumstances, it would seem to have been of little moment whether or not the appellant intended to discard of the substance immediately; even assuming the learned magistrate had accepted the appellant's submission to that effect (I do not read her Honour's reasons as going that far in any event).
At the end of the day, by his guilty plea the appellant accepted he was in possession of 9.86 gm of methylamphetamine, and from his multiple prior convictions, he should have been aware of the likely serious consequences of being in possession. Even if only for a very brief period (a fact which the learned magistrate did accept).
Noting those matters, it would seem to me that had her Honour indeed made the sentence on the drug charge run concurrently with the sentence on the unlawful possession charge, this it might well have given rise to a perception, as her Honour with respect correctly observed, that the appellant could 'continue to offend without additional consequences or … that there is a discount for bulk offending'.
Thirdly, regarding the mathematical exercise reflected in the appellant's written submissions, as the Court of Appeal observed in Stipokvich:[21]
Consistency does not arise out of numerical equivalence; the sentencing process is more complex than a mathematical comparison. The consistency that is sought is consistency in the application of the relevant legal principles. To apply a rigid mathematical analysis would amount to adopting the impermissible 'norm' jurisprudence rejected in Hili.[22]
[21] Stipkovich v The Queen [2018] WASCA 63 [42]. Citations omitted.
[22] Ie. Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520.
In short, the imposition of a 14-month sentence for unlawful possession of $455,550 in cash can neither set the upper limit for future sentences, nor establish a guide of proportionality to which any subsequent sentences must follow.
In any event, I do not consider that the appellant has more generally shown that the sentences imposed by her Honour infringed the first limb of the totality principle.
I say this for at least the following reasons.
First, in considering whether a total effective sentence infringes the first limb of that principle it is relevant to refer to broadly comparable cases.[23]
[23] See Curry v The State of Western Australia [2023] WASCA 10 [95].
In this connection, I note that in its recent decision in Hishmeh v The State of Western Australia,[24] the Court of Appeal described as 'unremarkable' a sentence of six months' imprisonment imposed for possession of $7,000 in cash reasonably suspected to have been stolen or unlawfully obtained.[25]
[24] Hishmeh v The State of Western Australia [2025] WASCA 14.
[25] [147].
Here, the cash found in the appellant's possession was more than four times that amount.
Regarding the sentence imposed on the drug charge, the Court has had regard to the decisions of Trang,[26] Hyder[27] and Dahl.[28] Those decisions concerned possession of large quantities of methylamphetamine under s 6(2) of the Misuse of Drugs Act 1981 (WA).
[26] Trang v The State of Western Australia [2010] WASCA 44 (Owen and Wheeler JJA).
[27] The State of Western Australia v Hyder [2011] WASCA 256 (McLure P, Buss and Mazza JJA).
[28] Dahl [34].
Although these cases are not truly 'comparable', in that they either consider aggregate sentences or the drug charge in isolation, it is well to observe that the weight of the methylamphetamine involved in those cases varied between 2.65 and 2.93 gm, and the range of sentences between 7 months imprisonment suspended for 12 months and 16 months imprisonment to be served concurrently with other drug related sentences.
Further, as I have already mentioned, in Dahl Archer J noted that 2.69 gm of methylamphetamine was a 'large quantity' for a charge of simple possession and the amount in the appellant's possession was considerably more than that.
Although, as the magistrate accepted, the appellant was only in possession of the drug for a brief period, the fact remains that the quantity was, on any view, significant.
For at least that reason, I consider it sufficient to conclude that the amount of methylamphetamine in the appellant's possession was a 'serious example' of an offence under s 6(2) of the Misuse of Drugs Act 1981 (WA).
Secondly, the applicable maximum penalties for a summary offence contrary to s 417(1) of Criminal Code 1913 (WA) is a fine of $24,000 and imprisonment for 2 years, while for a simple offence contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA) a fine of $2,000 or imprisonment for 2 years.
The fact that each sentence imposed by the magistrate was well below the relevant maximum is, in my view, yet a further reason telling against an inference that her Honour failed to impose an overall sentence which was, in aggregate, just and appropriate.
Thirdly, and as the State correctly points out, the offence the subject of the drug charge warranted the imposition of a cumulative sentence, particularly given it was entirely unrelated to the offence the subject of the unlawful possession charge, other than having been committed by the same offender who happened to be in possession of the cash and the drugs at the same time.
Plainly, both offences were also entirely unrelated to the offences the subject of the prior sentence. Those earlier offences were committed months before the offences the subject of this appeal and have no common element.
Thus, as the State also correctly submits, it was entirely open to her Honour in the exercise of her discretion to order that the sentences be served cumulatively - both upon each other and upon the 14-month sentence which the appellant was then serving.
Conclusion
In all the circumstances, it is my view difficult to conclude that the magistrate, in the exercise of her discretion, did anything other than carefully and appropriately balance all relevant sentencing considerations before imposing the sentence which her Honour did.
For all the reasons to which I have referred, and having particular regard to the level of criminality involved in the commission of the offences, I am not satisfied that the appellant has demonstrated that the total effective sentence imposed is so unreasonable, or plainly unjust, such as to warrant an inference of error.
It follows that I consider the appellant's ground of appeal enjoys no reasonable prospect of success and that the appeal should accordingly be dismissed.
There will be orders as follows:
(1)Leave to appeal be refused.
(2)The appeal be dismissed.
There will be no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IL
Associate to the Hon Justice Musikanth
3 APRIL 2025
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