Labrook v The State of Western Australia
[2016] WASCA 127
•15 JULY 2016
LABROOK -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 127
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 127 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:156/2015 | 9 JUNE 2016 | |
| Coram: | McLURE P MAZZA JA MITCHELL J | 15/07/16 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | AARON KARL LABROOK THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence of 4 years 10 months' imprisonment Offering to sell methylamphetamine Totality principle Whether account to be taken of sentence of imprisonment imposed and served after commission of present offence Where present charges laid during service of intervening sentence |
Legislation: | Nil |
Case References: | Barnes v The State of Western Australia [2004] WASCA 258 Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Fletcher v The State of Western Australia [2014] WASCA 219 Mill v The Queen (1988) 166 CLR 59 Mills v The State of Western Australia [2007] WASCA 118 Roffey v The State of Western Australia [2007] WASCA 246 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LABROOK -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 127 CORAM : McLURE P
- MAZZA JA
MITCHELL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : HERRON DCJ
File No : IND 1389 of 2014
Catchwords:
Criminal law - Appeal against sentence of 4 years 10 months' imprisonment - Offering to sell methylamphetamine - Totality principle - Whether account to be taken of sentence of imprisonment imposed and served after commission of present offence - Where present charges laid during service of intervening sentence
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D Grace QC
Respondent : Ms L E Christian
Solicitors:
Appellant : Michael Tudori & Associates
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Barnes v The State of Western Australia [2004] WASCA 258
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Fletcher v The State of Western Australia [2014] WASCA 219
Mill v The Queen (1988) 166 CLR 59
Mills v The State of Western Australia [2007] WASCA 118
Roffey v The State of Western Australia [2007] WASCA 246
1 McLURE P: I agree with Mitchell J.
2 MAZZA JA: I agree with Mitchell J.
MITCHELL J:
Summary
3 On 13 August 2015, the appellant was sentenced to a total effective sentence of 4 years 10 months' imprisonment in respect of three charges of offering to sell methylamphetamine. Between committing and being sentenced for those drug offences, the appellant was sentenced to 17 months' imprisonment for various driving offences. The appellant completed that 17-month sentence about 10 months before the sentence for the drug offences was imposed. The appellant was serving the sentence for the driving offences when he was charged with the drug offences.
4 The appellant appeals against the sentence imposed for the drug offences. The appellant contends that the sentencing judge erred by failing to have regard to the 17-month sentence in applying the totality principle to the sentence for the drug offences. It is common ground that the sentencing judge did not have regard to the 17-month sentence for that purpose. This was a consequence of submissions made by the appellant's counsel at sentencing (who did not appear in this appeal).
5 The issue raised by the ground of appeal is whether the sentencing judge was required to have regard to the 17-month sentence in applying the totality principle to the sentence to be imposed for the drug offences. In my view, the sentencing judge was required to have regard to the 17-month sentence for that purpose.
6 However, after having regard to the 17-month sentence and all other relevant circumstances, I am not of the opinion that any lesser sentence should have been imposed for the drug offences. The combined total effective sentence of 6 years 3 months' imprisonment bears a proper relationship to the overall criminality involved in all the drug and driving offences. It follows that, while the error of principle identified in the ground of appeal is established, the appeal must be dismissed.
Chronology
7 What follows is a description of the circumstances of the appellant's offending and the relevant criminal proceedings. The chronology is drawn from the findings of the sentencing judge and the material before him. I have also taken account of material relating to the driving offences which the State sought leave to adduce on the appeal. In all the circumstances, and in the absence of any objection by the appellant, it is appropriate to receive that further material.1
Suspended Sentence imposed on 15 February 2012
8 On 15 February 2012, the appellant was sentenced to 7 months' imprisonment, suspended for 18 months, for the offence of driving under suspension (Suspended Sentence). The date of the offence was 11 April 2011. The material before this court does not disclose the circumstances of that offending in any greater detail.
Driving offence on 12 September 2012
9 On 12 September 2012, the appellant drove a Suzuki motorcycle on a street in Osborne Park. At this time his driver's licence was suspended and he remained subject to the Suspended Sentence.
10 On 20 September 2012, the appellant was charged with driving under suspension by summons. He failed to appear on 12 October 2012 and a warrant was issued for his arrest.
Drug offence on 24 October 2012
11 At 5.28 pm on 24 October 2012, the appellant was contacted on his mobile phone by a woman. The appellant offered to sell her an ounce, or 28 g, of methylamphetamine for $11,500 - $12,000. The offence was detected as the appellant's phone was being monitored by police acting under a warrant. The appellant was subject to the Suspended Sentence at this time.
Drug offence on 24 November 2012
12 At about 8.35 am on 24 November 2012, the appellant was contacted by a man who asked for a 'half weight'. The appellant offered to supply the man with 1 g of methylamphetamine for $500. Again, the offence was detected through police monitoring the appellant's phone. The appellant was subject to the Suspended Sentence at this time.
Driving offences on 30 November 2012
13 On 30 November 2012 the appellant drove a motor vehicle on Orrong Road in Kewdale, while his driver's licence was suspended. He also provided a false name to a police officer who requested his personal details. At the time of committing these offences, the appellant remained subject to the Suspended Sentence. The appellant was charged with driving under suspension and giving false personal details to police.
Grant of bail for driving offences on 30 November 2012
14 Also on 30 November 2012, the appellant appeared in the Magistrates Court at Perth in relation to the driving offences committed on 12 September 2012 and 30 November 2012. At that time the appellant was released on a bail undertaking. The proceedings were adjourned until the appellant was eventually sentenced for the offences, with bail granted for each appearance.
Drug offence on 7 January 2013
15 At 8.25 pm on 7 January 2013, the appellant was contacted on his mobile phone by a woman to whom the appellant offered to sell 3.5 g of methylamphetamine for $2,000. The offence was detected through monitoring of the appellant's phone by police. He was subject to the Suspended Sentence and on bail for the driving offences at this time.
Driving offences on 7 May 2013
16 At about 2.13 pm on 7 May 2013, the appellant drove a Ford utility vehicle on Wanneroo Road in Balcatta. At this time his driver's licence was suspended. He also remained subject to the Suspended Sentence, and his bail undertaking in relation to the driving offences committed on 12 September 2012 and 30 November 2012.
17 A marked police vehicle followed the appellant's vehicle into a parking lot. The appellant drove out of the parking lot, forcing his vehicle through a lowered swing gate and causing a parking attendant to run out of its path. The police called on the appellant to stop by activating emergency lights and sirens.
18 The appellant then drove the Ford utility on a number of roads, which were main thoroughfares in a built up area. He was pursued first by one police vehicle, and later two police vehicles, with emergency lights and sirens engaged. Members of the public had to take evasive action to avoid a collision as the appellant drove through the area at speed. The appellant was observed to accelerate and brake with sufficient aggression to cause skidding of, and smoke from, his tyres.
19 At 2.33 pm in Swan Street in Yokine, the engine of the Ford utility seized and the vehicle's speed reduced to a rolling pace. The appellant got out of the Ford utility, while it was still moving, and ran away to hide in some nearby bushes. The driverless vehicle continued and collided with a tree on a residential kerb. As it did so, the vehicle narrowly missed two surveyors who were working at the time, and who had to jump clear of the oncoming vehicle. A tripod being used by the surveyors, valued at $506, was destroyed.
20 The appellant was located and arrested. He told police that he knew he should not have been driving. The appellant was charged with driving under suspension, reckless driving in the circumstance of aggravation of driving to escape pursuit by police and failing to stop his vehicle when called on by police to do so. The appellant was remanded in custody from 8 May 2013 until his sentence for the driving offences on 15 May 2013.
Sentencing for the driving offences
21 On 15 May 2013, the appellant pleaded guilty in the Magistrates Court at Perth to the driving offences committed on 12 September 2012, 30 November 2012 and 7 May 2013. The court activated the 7-month Suspended Sentence and imposed cumulative sentences of 4 months' imprisonment for the driving under suspension offence committed on 30 November 2012 and 6 months' imprisonment for the aggravated reckless driving offence committed on 7 May 2013. The appellant was fined $200 for providing false details on 30 November 2012. Concurrent sentences of imprisonment were imposed for the other offences. The total effective sentence of 17 months' imprisonment was not backdated. The appellant was made eligible for parole.
Drug Charges on 24 July 2013
22 On 24 July 2013, the appellant was charged with three counts of offering methylamphetamine for sale on the occasions referred to above (Drug Charges), as well as three other drug charges which were subsequently discontinued. The appellant first appeared in the Magistrates Court on 19 August 2013 and was granted bail. However, because he was still serving the 17-month sentence imposed for the driving offences, he was not released from custody. A series of appearances in the Magistrates Court followed. Bail was granted on each occasion.
Committal to District Court on 3 October 2014
23 On 3 October 2014, the appellant was committed to the District Court of Western Australia for trial on the six drug offences with which he was charged, on his plea of not guilty to all of those charges. It is not clear from the prosecution notice when the pleas of not guilty were entered.
Release from custody on 14 October 2014
24 The total effective sentence of 17 months' imprisonment for the driving offences expired on 14 October 2014. The appellant was released from custody at this time. He had not been granted parole in respect of that sentence. The appellant was released on the bail previously granted in respect of the Drug Charges.
First appearance in the District Court on 16 January 2015
25 The appellant was indicted on four counts, including the Drug Charges, on 15 January 2015. The appellant's first appearance in the District Court was on 16 January 2015. The matter was adjourned to allow plea negotiations to occur.
Conviction of the Drug Charges on 20 February 2015
26 On 20 February 2015 the appellant was arraigned on the indictment for the first time, on the Drug Charges only. He pleaded guilty to those offences and judgments of conviction were entered.
27 The matter was adjourned for sentencing. Leave to discontinue the other charges was granted, and on 18 March 2015 a substitute indictment was filed. Sentencing was adjourned on a number of occasions to enable reports to be obtained.
Appellant's conduct after release
28 The material placed before the sentencing judge and not challenged by the State indicated that, between his release on 14 October 2014 and his sentence for the drug offences on 13 August 2015, the appellant had acquired employment and commenced a new stable relationship. The appellant's sentencing counsel also said he had been drug free over this time. There was nothing to indicate that the appellant had committed offences over that 10-month period.
Sentence on 13 August 2015
29 On 13 August 2015, the appellant was sentenced to a total of 4 years 10 months' imprisonment for the Drug Charges, structured as follows:
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The sentences were not backdated. The appellant was made eligible for parole.
Sentencing judge's remarks in relation to totality
30 In relation to the issue of totality, the sentencing judge said:
I then turn to deal with the issue of totality. The totality principle requires that in sentencing you, I must endeavour to ensure that the total sentence I impose on you is proportionate to your overall criminality, having regard to all relevant circumstances including those referable to you personally.
The totality principle also requires me to endeavour to ensure that the total sentence imposed is not crushing. A crushing sentence is one that destroys any reasonable expectation of a useful life after release from custody. There is nothing before me to suggest that your state of health will rapidly worsen while you are in prison, nor is there anything to suggest that if you are given a sentence of a length appropriate to your overall criminality you'll be released in such a state that you will have no reasonable expectation of a useful life or rehabilitation after release.
It follows that in the circumstances of your case, while your prospects of rehabilitation are something that I will take into account as a part of the general mix of factors bearing upon the exercise of my sentencing discretion, it's not something that justifies the imposition of a sentence less than might otherwise be imposed on the basis that such a lesser sentence is required in order to avoid the sentence being crushing.
In my view, taking into account all the matters I have mentioned in order to achieve a just sentence, a total sentence of four years 10 months' imprisonment appropriately reflects your overall criminality in committing the offences having regard to all relevant circumstances including the need for protection of the public, the need for punishment and the need for personal and general deterrence (ts 65).
Ground of appeal
31 The appellant's sole ground of appeal, on which leave has been granted, is that the sentencing judge erred in imposing a total effective sentence which, in all the circumstances of the case and the appellant, breached the totality principle of sentencing.
32 The appellant accepts that the sentencing judge correctly applied the totality principle as between the Drug Charges. The appellant alleges that the sentencing judge failed to apply the totality principle as between the sentences for the driving offences and the Drug Charges. The appellant submits that allowance should have been made for the fact that the sentence for the Drug Charges was to be served separately to the 17-month sentence for the driving offences, resulting in a reduction of the total effective sentence imposed for the Drug Charges.
The totality principle and multiple sentencing hearings
33 The totality principle was summarised by McLure JA, with whom Steytler P and Miller JA agreed, in Roffey v The State of Western Australia:2
The legal principles relevant to the disposition of this appeal are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law.
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear 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 offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).
34 The decision in Mill v The Queen3illustrates that a completed sentence may be taken into account in applying the totality principle. Mill had committed robberies in Victoria and Queensland over a six-week period, and came to be sentenced for the Queensland offences after he had served a term of imprisonment for the Victorian offences. The High Court held that it was necessary for the sentencing judge in Queensland to have regard to the Victorian sentence. The proper approach was to ask what sentence would likely have been imposed if Mill had committed all offences in the one jurisdiction and been sentenced at one time.4
35 The approach identified in Millis not confined to cases where sentences are imposed by different courts in different States or Territories.
36 The principle was applied in Barnes v The State of Western Australia5 in circumstances where the offender had been charged with possessing methylamphetamine with intent on 28 June 2000. The offender committed further drug offences on 29 December 2000, for which he was sentenced to a total effective term of 5 years' imprisonment on 18 July 2001 and released on parole in May 2002. On 6 April 2004, two months before completing the 5-year term, the offender was convicted of the offence charged on 28 June 2000. He was sentenced to 7 years 4 months' imprisonment in respect of that offence. The sentencing judge in that case was found to have made an express error because he did not regard the earlier sentence as materially impacting on the exercise of his sentencing discretion. The applicable principle was explained by McLure J:
The totality principle applies when a sentencing court is dealing with a defendant convicted of multiple offences, even where more than one sentencing court is involved. The general rule that individual crimes must be punished proportionately to their gravity is qualified by the principle that consecutive sentences passed for individual crimes must not be allowed to result in an aggregate sentence which is inappropriately long, having regard for the course of criminal conduct viewed as a whole. …
The totality principle has been held to apply in circumstances where a defendant is still serving a sentence for some other offence at the time of sentencing. The rationale for the principle is that the imposition of a wholly cumulative sentence, either in respect of sentences already being served or in respect of sentences to be served, is said to be that the second sentencing court may see or assume that the prisoner has made progress towards rehabilitation during the term of the first sentence and that there is not the same demand for retribution where a prisoner has already suffered loss of liberty and emphatic denunciation of his or her criminal behaviour and attitude.
In this case the applicant was not in prison at the time of sentencing the subject of this application, although he was still on parole and the earlier sentence had not been completed. However, it is unnecessary to decide whether the totality principle extends to such circumstances. But for the very considerable delay in the matter being tried, it is likely that when he came to be sentenced the applicant would still have been serving his sentence in prison for the earlier convictions, in which event the totality principle would clearly apply. There is no suggestion that the delay was as a result of any improper conduct by the applicant. The rationale for the totality principle, in particular assumed rehabilitation, is not undermined but buttressed by the applicant's conduct in the period between his release under supervision and his return to prison. In the circumstances, it is proper to apply the totality principle by way of analogy [36] - [38]. (citations omitted)
37 The principle was again applied in Mills v The State of Western Australia.6 In that case the offender Whitburn was charged with drug offences in February 2004, for which he was sentenced on 8 October 2004 to a term of 2 years 4 months' imprisonment which expired in July 2006. While on bail for the drug offences, he committed a robbery and extortion offence, for which he was charged on 24 March 2004, convicted on 30 June 2006 and sentenced to a total effective term of 5 years 4 months' imprisonment on 1 September 2006. The sentence for the drug offences was therefore completed by the time the offender was sentenced for the robbery and extortion offences. The sentencing judge was found to have made an express error in failing to take account of the sentence Whitburn had just completed as a matter relevant to totality.7
38 These decisions were applied in Fletcher v The State of Western Australia.8
39 Counsel for the State noted a number of differences between these cases and the present. She noted that the offender in Barnes was still serving his earlier sentence at the time the additional sentence was imposed, and that the offences of which he was sentenced on the two occasions were of the same kind (drug offences). However, in Mills,Whitburn had completed his sentence at the time of sentence (although not by the time of his conviction) and the sentences were imposed for offences of a different nature.
40 It is not necessary in the present case to identify the precise limits of the circumstances in which the totality principle requires account to be taken of sentences imposed at an earlier time. Clearly, the totality principle does not require a sentencing court to make allowance for sentences served prior to the commission of the relevant offence. It may be necessary that the offender has at least been charged with the later offences while serving the sentence which is to be taken into account for totality purposes. Wherever the line is to be drawn, I am satisfied that, in the present case, the delay between completion of service of the 17-month sentence and the imposition of the sentence for the Drug Charges was not so great as to make the earlier sentence irrelevant for totality purposes.
Totality in this case
41 It would plainly have been necessary to have regard to the 17-month sentence for the driving offences for totality purposes if the appellant had been sentenced in respect of the Drug Charges before his release on 14 October 2014. Prior to 14 October 2014, the appellant was serving a term of imprisonment for the driving offences. I see no reason why the position should differ because the appellant was in fact sentenced in respect of the Drug Charges on 13 August 2015, approximately 10 months later.
42 The State submits that the delay in this case should be attributed to the appellant's own conduct, being his choice not to plead guilty to the Drug Charges for 1 year and 7 months after being charged with those offences. It submits that this is not, therefore, a case where delay may be a relevant sentencing consideration independently of the totality principle. However, in this case the appellant does not point to delay as a relevant consideration independently of the totality principle. Rather, the appellant complains that there was a failure to have regard to the 17-month sentence for the purpose of applying the totality principle.
43 The fact that the appellant did not plead guilty at an earlier time is not a valid reason for refusing to take account of the earlier sentence for totality purposes. The failure to plead guilty denied the appellant the mitigating effect of a plea of guilty at the earliest opportunity by reference to the utilitarian benefits referred to in s 9AA of the Sentencing Act 1995 (WA)and the associated remorse and acceptance of responsibility. However, failure to plead guilty is not an aggravating factor and does not operate to increase the sentence which is otherwise appropriate.9
44 The appellant was not required to plead to the Drug Charges in the Magistrates Court, and was to be informed of that right.10 In this case the appellant pleaded guilty to the Drug Charges on the first occasion at which he was arraigned in the District Court, which was also the first occasion on which the State indicated that it would withdraw other counts alleging drug offences. The application of the totality principle is not affected by the appellant's failure to take the opportunity to plead guilty to the Drug Charges sooner.
Express error
45 In applying the totality principle, the sentencing judge did not refer to the terms of imprisonment imposed for the driving offences. Prosecuting counsel in the sentencing proceedings did not say anything to suggest the judge ought to have regard to the sentence for the driving offences. Counsel for the appellant told the sentencing judge that 'there is no submission that could be made in terms of totality when it comes to being in prison on that occasion' (ts 46). In these circumstances, I infer that the sentencing judge did not take account of the term of imprisonment served for the driving offences when applying the totality principle to the appellant's case. Counsel for the State properly conceded that to be the case. That is an error of principle which requires this court to consider how the sentencing discretion should be exercised.
46 The State notes that the concession by the appellant's sentencing counsel 'is contrary to the very foundation of the ground of appeal now advanced in this court'. However, the error remains. The decision of counsel was not attributable to any rational forensic choice and the sentencing judge was aware of the existence and timing of the driving offences and sentences. In those circumstances the fact that the sentencing judge was led into error by counsel's submissions does not provide a reason for this court to decline to interfere with the sentence.
Resentencing
47 Given the error of principle I have identified, it falls on this court (which has the necessary material) to determine the sentence which should be imposed.
48 No issue was taken by either party as to the appropriateness of the individual sentences in respect of the Drug Charges. In those circumstances, I would not interfere with those sentences, except to the extent necessary for totality purposes.
49 The sentencing judge found that the appellant was involved in a commercial enterprise, at least on a modest scale, and had ready access to significant amounts of methylamphetamine. The appellant was involved at the mid-level of the distribution chain. The appellant engaged in consistent offending over a 2½-month period. The appellant's purpose was commercial gain (ts 57, 58, 63).
50 The appellant's involvement was to assist with or arrange for people to be potentially provided with significant quantities of methylamphetamine. However, the sentencing judge accepted that there was no evidence that the appellant did arrange for people to be provided with methylamphetamine and he did not sentence the appellant on the basis that he had actually supplied methylamphetamine (ts 58).
51 In considering the overall criminality involved in all the offences, it is relevant to note that the driving offences and drug offences involved different kinds of criminal activity, and the driving offences concerned unauthorised driving over an extended period of time.
52 The driving offences of 7 May 2013 were particularly serious, involving the risk of injury to a number of members of the public who were required to take evasive action. The imposition of the mandatory minimum term of 6 months' imprisonment as the individual sentence for the reckless driving offence represents a lenient outcome.11
53 It is also significant that the appellant received the benefit of the Suspended Sentence on 15 February 2012. All other offences were committed while serving the Suspended Sentence.
54 It is an aggravating factor that the appellant committed the drug offence of 7 January 2013 while on bail.
55 The appellant is currently 46 years old. He has an extensive criminal record, mostly comprising drug and traffic offences but also including some older offences involving violence. The offences for which the appellant has previously been imprisoned include:
• armed robbery (1994);
• possessing amphetamine with intent, selling and supplying amphetamine and offering to sell or supply drugs (2005); and
• driving under suspension (2002 and 2005).
56 While his record is not an aggravating factor, it does highlight the need for personal deterrence in respect of both the driving and drug offences. I recognise that the appellant has not been convicted of any offences during the 10 months between completing the sentence for the driving offences and his imprisonment for the Drug Charges. However, this relatively short period of good behaviour while facing sentence on the Drug Charges does not undercut the importance of personal deterrence, having regard to the appellant's antecedents as a whole.
57 The appellant suffered an abusive childhood at the hands of his alcoholic father. The appellant left school at year 9 and had been in regular employment in a number of positions. He had completed 2½ years towards a Bachelor of Business Management degree while in prison. The appellant is in good physical health, and has used methylamphetamine since he was 18 years of age. The appellant has three young children to two different partners, and was in a relationship at the time of sentence.
58 Having regard to all the circumstances of the offences and the appellant, I consider that a total effective sentence of 6 years 3 months' imprisonment does bear a proper relationship to the overall criminality involved in all the driving offences and the Drug Charges, viewed in their entirety and having regard to the circumstances of the case, including those referable to the appellant personally. That outcome is achieved by the sentences for the Drug Charges imposed by the sentencing judge.
59 That is, while the sentencing judge did not have regard to the 17-month sentence in applying the totality principle, when all relevant circumstances are taken into account I am not of the opinion that any lesser sentence should have been imposed. It follows that, while the ground of appeal is made out, the appeal must be dismissed.12
Orders
60 For the above reasons, I would dismiss the appeal.
1 Section 40(1)(e) of the Criminal Appeals Act 2004 (WA).
2Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26].
3Mill v The Queen (1988) 166 CLR 59.
4Mill (66 - 67).
5Barnes v The State of Western Australia [2004] WASCA 258.
6Mills v The State of Western Australia [2007] WASCA 118.
7Mills [11].
8Fletcher v The State of Western Australia [2014] WASCA 219 [33] - [38].
9Cameron v The Queen [2002] HCA 6;(2002) 209 CLR 339 [12] - [13].
10 Section 41(2) of the Criminal Procedure Act 2004 (WA).
11 See s 60(5)(a) of the Road Traffic Act 1974 (WA). The maximum penalty for that offence was 5 years' imprisonment, under s 60(4) of that Act.
12 Section 31(3) and s 31(4)(a) of the Criminal Appeals Act.
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