Le v The State of Western Australia
[2022] WASCA 163
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LE -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 163
CORAM: MAZZA JA
VAUGHAN JA
HALL JA
HEARD: 21 OCTOBER 2022
DELIVERED : 8 DECEMBER 2022
PUBLISHED : 8 DECEMBER 2022
FILE NO/S: CACR 46 of 2021
BETWEEN: AUGUSTINE VINH QUANG LE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GOETZE ADCJ
File Number : IND 682 of 2020
Catchwords:
Criminal Law – Appeal against sentence - Drug offences – Whether appellant’s culpability diminished by involvement of undercover police officers – Whether appellant failed to establish mitigating factor that was in contention – Whether total effective sentence of 7 years 6 months’ infringed first limb of the totality principle
Legislation:
Sentencing Act 1995 (WA)
Result:
Leave to appeal in respect of ground 1 granted
Leave to appeal in respect of ground 2 refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Ms J C Solliss |
| Respondent | : | Ms K C Cook |
Solicitors:
| Appellant | : | Ms J C Solliss |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Baker v The State of Western Australia [2020] WASCA 117
Barnes v The State of Western Australia [2004] WASCA 258
Blasco v The State of Western Australia [2021] WASCA 26
Carlucci v The State of Western Australia [2019] WASCA 37; (2019) 276 A Crim R 472
Carr v The State of Western Australia [2006] WASCA 125
Cochrane v The State of Western Australia [2021] WASCA 5; (2021) 57 WAR 262
Gyurka v The State of Western Australia [2001] WASCA 113
HSV v The State of Western Australia [2020] WASCA 5
Jackson v The Queen (Unreported, SCWACCA, Library No 8752, 8 March 1991)
Jacomb v The State of Western Australia [2021] WASCA 81
Kabambi v The State of Western Australia [2019] WASCA 44
KJL v The State of Western Australia [2021] WASCA 65
Labrook v The State of Western Australia [2016] WASCA 127
Law v The State of Western Australia [2009] WASCA 193
Le v The Queen [2004] WASCA 214; (2004) 147 A Crim R 269
Le v The State of Western Australia [2014] WASCA 120
LNV v The State of Western Australia [2021] WASCA 203
LYN v The State of Western Australia [2019] WASCA 45
McConnell v The State of Western Australia [2020] WASCA 18
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Moodley v The State of Western Australia [2020] WASCA 158
Musulin v The State of Western Australia [2020] WASCA 18
North v The State of Western Australia [2020] WASCA 6
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Vuckov and Romeo (1986) 40 SASR 498; (1986) 22 A Crim R 10
Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19
Roffey v The State of Western Australia [2007] WASCA 246
Salkilld v The State of Western Australia [2017] WASCA 168
Staiger v The State of Western Australia [2020] WASCA 99
SYL v The State of Western Australia [2021] WASCA 16
The Queen v Reppucci (1994) 74 A Crim R 353
The State of Western Australia v Atherton [2009] WASCA 148
The State of Western Australia v Delaney [2020] WASCA 93
The State of Western Australia v Doodson [2021] WASCA 148
Trajkoski v The State of Western Australia [2018] WASCA 176
YLT v The State of Western Australia [2020] WASCA 217
JUDGMENT OF THE COURT:
This is an application for leave to appeal against sentence.
The appellant was convicted on his pleas of guilty of 9 counts on an indictment. The offences arose out of a course of drug dealing between 24 July 2018 and 28 August 2018. On 23 August 2021, the appellant was sentenced to a total effective sentence of 7 years and 6 months' immediate imprisonment.
The sentences imposed for each of the offences were as follows:
| Count No. | Offence | Quantity | Maximum Penalty | Sentence |
| 1 | Sold a prohibited drug (methylamphetamine) contrary to s 6(1)(c) of the Misuse of Drugs Act | 3.4 g | 25 years and/or $100,000 | 15 months' imprisonment concurrent |
| 2 | Sold a prohibited drug (methylamphetamine) contrary to s 6(1)(c) of the Misuse of Drugs Act | 3.4 g | 25 years and/or $100,000 | 15 months' imprisonment concurrent |
| 3 | Sold a prohibited drug (methylamphetamine) contrary to s 6(1)(c) of the Misuse of Drugs Act | 13.5 g | 25 years and/or $100,000 | 2 years' imprisonment concurrent |
| 4 | Sold a prohibited drug (methylamphetamine) contrary to s 6(1)(c) of the Misuse of Drugs Act | 14.27 g | 25 years and/or $100,000 | 2 years' imprisonment concurrent |
| 5 | Sold a trafficable quantity of a prohibited drug (methylamphetamine) contrary to s 6(1)(c) of the Misuse of Drugs Act | 83.7 g | Life imprisonment | 4 years and 6 months' imprisonment (head sentence) |
| 6 | Offer to sell a trafficable quantity of a prohibited drug contrary to s 6(1)(c) of the Misuse of Drugs Act | 56 g | Life imprisonment | 3 years' imprisonment cumulative |
| 7 | Possession of a trafficable quantity of a prohibited drug (methylamphetamine) with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act | 31.91 g | Life imprisonment | 2 years 6 months' imprisonment concurrent |
| 8 | Possession of Australian currency ($7,580) that was reasonably suspected to have been unlawfully obtained contrary to s 417(1) of the Criminal Code. | N/A | 7 years imprisonment | 9 months' imprisonment concurrent |
| 9 | Possession of a prohibited drug (methylamphetamine) with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act | 7.13 g | 25 years and/or $100,000 | 20 months' imprisonment concurrent |
There are two grounds of appeal. The first ground contends that the learned sentencing judge failed to take into account the extent to which the appellant's culpability was diminished by the involvement of undercover police officers in encouraging the commission by the appellant of some or all of the offences. The second ground contends that the total effective sentence of 7 years and 6 months' immediate imprisonment infringed the first limb of the totality principle.[1]
[1] AB 10.
For the reasons that follow, whilst leave to appeal should be granted in respect of ground 1, neither of the grounds can succeed and the appeal should be dismissed.
The agreed facts
The agreed facts, as read to the sentencing court by the prosecutor, can be summarised as follows.
On Tuesday 24 July 2018 at about 1.10 pm, the appellant sold 3.4 g of methylamphetamine to a female undercover police operative (UCO) in exchange for $900. The methylamphetamine was seized by police. When analysed it was found to be of 77% purity. This sale is the subject of count 1.[2]
[2] Sentencing ts 46.
On Thursday 26 July 2018 at around 4.00 pm, the appellant met the UCO in a car park in Balcatta. He sold the UCO 3.44 g of methylamphetamine for $900. On analysis the substance was found to be 3.39 g of methylamphetamine at 76% purity. This sale is the subject of count 2.[3]
[3] Sentencing ts 46.
On Thursday 9 August 2018 at 11.20 am, the appellant offered to sell 56 g of methylamphetamine to the UCO. An arrangement was made to meet the UCO at the same car park as in count 2. The appellant then said he could only supply 28 g. At 12.45 pm that day the appellant met the UCO in the car park and supplied a parcel of drugs for which he was paid $5,500. When the substance was analysed, it was found to be 13.5 g of methylamphetamine at 74% purity. This sale is the subject of count 3.[4]
[4] Sentencing ts 46.
On Friday 10 August 2018 at about 2.35 pm, the appellant met the UCO at the same car park as in counts 2 and 3. He supplied 14.27 g of methylamphetamine at a purity of 69%. There was no payment on this occasion as this quantity was the balance of the 28 g promised the day before. This sale is the subject of count 4.[5]
[5] Sentencing ts 47.
On 15 August 2018, the appellant and the UCO again met in the car park. On this occasion another man arrived with the appellant. An arrangement was made for the other man to provide the UCO with methylamphetamine on behalf of the appellant. The other man then supplied 83.7 g of methylamphetamine at 63% purity and was paid $16,500 cash. This sale is the subject of count 5.[6]
[6] Sentencing ts 47.
On Monday 27 August 2018 at about 6.00 pm, the appellant offered to sell the UCO 56 g of methylamphetamine for $11,000. The offer was made via messages sent using the WhatsApp messaging application. This offer is the subject of count 6.[7]
[7] Sentencing ts 47.
On Tuesday 28 August 2018 at about 2.10 pm, the appellant was apprehended by police whilst sitting in his car at the car park in Balcatta. He was arrested and his car was searched. Police located a plastic clipseal bag which was wrapped in tissue and duct tape. This bag was found in the footwell of the driver's seat where the appellant had been sitting. When unwrapped and the contents analysed, it was found to contain 27.5 g of methylamphetamine.[8]
[8] Sentencing ts 47 - 48.
The appellant's car was secured and towed to police storage in Belmont where a further search was conducted. Located behind a panel under the dashboard was a drawstring pouch which contained a plastic clipseal bag containing approximately 1.75 g of methylamphetamine. The pouch was located next to a set of digital scales and numerous unused plastic clipseal bags. Another clipseal bag containing 1.75 g of methylamphetamine was located in the roof lining near the front passenger seat. More unused clipseal bags were located in the roof lining. Two mobile telephones were also found in the car. When accessed the telephones were found to contain messages indicating the appellant's involvement in the sale of prohibited drugs. The total amount of methylamphetamine seized from the car was 31.91 g. This quantity of drugs is the subject of count 7.[9]
[9] Sentencing ts 48.
At the time of the initial search of the car, a personal search was also conducted of the appellant. Cash totalling $1,650 was found in his rear pocket. A further $480 was found in his wallet. In the rear pouch of the front passenger seat, within reach of the driver's seat, a further $5,450 was found. The total amount of cash found was $7,580. This cash is the subject of count 8.[10]
[10] Sentencing ts 48.
Later the same day police attended a house in Balga where the appellant had been temporarily residing. On conducting a search police located a plastic clipseal bag on top of a refrigerator in the kitchen. On analysis the substance in the bag was found to be 7.13 g of methylamphetamine. This quantity of drugs is the subject of count 9.[11]
[11] Sentencing ts 48.
The appellant was interviewed by police on 29 August 2018. He admitted to being a user of heroin and of methylamphetamine.[12]
[12] Sentencing ts 48.
Personal circumstances
The appellant was aged 41 years at the time of sentencing. He was born in Perth to parents who migrated to Australia as refugees after the end of the Vietnam war. He has two older siblings.[13]
[13] Sentencing ts 68.
The appellant's father suffered considerable trauma as a result of his experiences in Vietnam. In sentencing submissions, it was said that this trauma manifested in the form of domestic violence inflicted both upon the appellant's mother and upon the appellant as a child. The appellant also suffered sexual abuse as a child at the hands of a man who also introduced him to alcohol.[14]
[14] Sentencing ts 52, 72.
The appellant's schooling was disrupted by being frequently moved to different schools. He experienced bullying and found it hard to make friends. Parental expectations of academic performance were high and nothing he did seemed to be good enough. His parents worked long hours and he was often left to fend for himself. His began to misbehave in high school and was often truant, which led to him repeating year 11.[15]
[15] Sentencing ts 68.
The appellant began working in the family business whilst still at school. The business included a newsagency and a childcare centre. After finishing school, he continued to work in the business for many years until he was 29. He commenced an accountancy course at TAFE but did not complete it.[16]
[16] Sentencing ts 68.
In about 2003 or 2004 he commenced a relationship with a woman, which ended in 2009. That relationship produced a child who was aged 15 at the time of sentencing and in the care of her mother.[17]
[17] Sentencing ts 52.
The appellant began using alcohol and marijuana when he was aged 13. At 19 years of age, he began to regularly use methylamphetamine and ecstasy. At around the same time he became addicted to heroin, using it daily. For many years he was a self-described high functioning addict. He attempted rehabilitation in 2004 and was referred to the Drug Court in 2005 but did not take these opportunities seriously. When his parents divorced and the family business was sold, his drug addiction became more severe.[18]
[18] Sentencing ts 52.
The appellant has an extensive criminal record. Most of his convictions prior to 2011 relate to possession of prohibited drugs and traffic offences. However, he also has convictions for giving false personal details to the police, breach of bail, stealing, carrying a prohibited weapon, and possession of prohibited drugs with intent to sell or supply. Most of these offences were punished by fines or community based orders. In 2009 he was sentenced to a total of 20 months' immediate imprisonment for two offences of driving motor vehicle whilst he had no authority to drive.[19]
[19] Sentencing ts 69.
In 2011 the appellant committed more serious offences. The facts of that offending were as follows. In April 2011, the appellant's mother contacted police after discovering a firearm and a bag containing white powder in his bedroom at her house. Police seized the firearm (a sawn-off shot gun), 16.46 g of methylamphetamine, 14.7 g of cannabis and 6.64 g of MDPV (a derivative of methylamphetamine). It was later conceded by the prosecution that the firearm and drugs were owned by another person and that the appellant was holding them with a view to returning them on request. In September 2011 police searched a house where the appellant was living with his girlfriend and located 56.17 g of methylamphetamine, 14.65 g of tablets that were believed to be MDMA (but were later found not to be) and 55.3 g of cannabis. He claimed that he had been told that he had a debt for the drugs seized in April and must repay it. He agreed to sell the drugs found in September to repay the debt. That claim was not disputed. The appellant entered late pleas of guilty to all offences arising from this conduct and, in March 2013, received a total effective sentence on eight counts of 6 years and 6 months' immediate imprisonment. An appeal against that sentence was dismissed.[20]
[20] Le v The State of Western Australia [2014] WASCA 120.
Whilst serving that sentence the appellant completed a high intensity substance abuse program and a cognitive skills program. On 2 October 2017, he was released on parole with a condition to attend a residential drug rehabilitation program in Kalgoorlie. He initially made positive progress but relapsed into drug use. His parole was revoked and he was returned to prison. He then served the balance of his term of imprisonment, being finally released in March 2018.[21]
[21] Sentencing ts 52 - 53.
In sentencing submissions, it was submitted that the appellant was released from prison having served his full term and without the benefit of community support. It was accepted that he had not solved his drug addiction. On release he reconnected with an ex-girlfriend and they both resumed taking drugs. He was using drugs at the time he first came into contact with the UCO.[22]
[22] Sentencing ts 58, 64.
In both the pre-sentence report and the psychological report prepared for the sentencing proceedings, the appellant was reported as having laid the blame for his present offending on the police. However, it was noted that he had also been unwilling to accept responsibility for his earlier offending in 2011. The psychologist reported that the appellant had a sense of victimhood and tended towards an inability to see his potential to make choices in any given situation. Given his history of anti-social behaviour, in particular his long history of illicit drug use, the psychologist was of the view that he presented as a risk of re-offending in a similar manner.[23]
[23] Sentencing ts 66.
Submissions as to whether the appellant was induced to commit the offences
In sentencing submissions, the appellant's counsel provided the court with a letter from the appellant dated 22 April 2021. In it, the appellant provided an account of his offending conduct and expressed a resolve to change his life. However, he also claimed that the undercover operative induced him to sell larger amounts of drugs over time:[24]
When I was released in March 2018 it didn't take long for me to head down that road again.
I could get good drugs for cheap and me, my partner and our friends would often put our money together to get a better deal and more often than not I would go and get the drugs for us. During the time I was under investigation that was the extent of my drug involvement which was more a case of me supplying rather than selling. Although I strongly oppose the way the police conducted this covert operation and I see it as counterproductive waste of taxpayer money to set me up for failure, I accept that I am entirely the author of my misfortunes and I take full responsibility for my choices.
All I have ever wanted in life is to get along, to live quietly, avoid hurting anyone, avoid being hurt, to provide for myself and for those I love and to have some fun along the way. I am ashamed of the role I have played in this covert operation, a moment of weakness which allowed the UCO to so easily lure me back into the dark life I had promised myself to leave behind, and a lesson I have learnt from this is that if I wasn't on drugs at the time this would never have happened and so I am even more determined to turn my back on this life I have led for so long.
The police are lawfully using these tactics to target in my case a simple drug user, who are [sic] one of the most vulnerable people in our society already, and have turned me into a drug dealer and escalated the offending to a level way above what I knew, and for what your honour? If the police had arrested and charged me on the 24 July 2018 when I met the UCO and sold her the 3.5 g the first time I would have been punished and learnt the same lesson I am learning now but I would be home with my family already. Instead I am facing sentencing on over 200 g and nine separate charges. I apologise to your honour for venting my frustration but I don't see how any of this is fair.
[24] AB 123 - 124.
In sentencing submissions counsel for the appellant said that:[25]
[T]he appellant wrongly, in the eyes of the law but understandably perhaps from a non‑legal perspective, harboured a significant sense of injustice that a proactive undercover police operation could effectively, once he agreed to supply a small amount of drugs, tailor the size of the crime for which he would ultimately be sentenced.
In this sense, from his point of view, he was a recently released drug abuser who had access to drug dealers for his own purposes and once it was certain that he would supply drugs on request, sell them, supply them on request, any demand could have been made of him and he would have fulfilled it.
So from his point of view, he was very much caught up with the concept of entrapment as a defence initially. And obviously in some American jurisdictions I think can be a defence, in certain aspects of English law it can be a defence but obviously there was no defence of entrapment to these charges and that took - that was a rather difficult process and it was a rather painstaking process to finally negotiate pleas because there were more charges - significantly more charges than were finally accepted in full and final satisfaction of this offending.
And something of that process, so the lack of continuity and legal representation, [the appellant's] own stubbornness for the reasons that I have just explained to you Honour mean that this didn't resolve itself as a fast-track plea when plainly it should have done given the overwhelming nature of the evidence against him and it could have done
[25] Sentencing ts 55 - 56.
The sentencing judge noted that the appellant had made the same point in his handwritten letter. Counsel then responded by saying:[26]
I know this is not a defence or even much mitigation but it's right that I perhaps say it to you given his preoccupation with it. They could have arrested it. They could have got him supplying a small amount or a smaller amount or a first amount and simply arrested him rather than protracted - protract - because he says 'well, I was so vulnerable I was so stupid I was caught up with drug addiction I would have done anything'. (emphasis added)
[26] Sentencing ts 57.
Towards the end of his sentencing submissions counsel for the appellant said:[27]
So I suppose it comes to this. It's your Honour's assessment of the overall criminality and all the relevant circumstances in determining a sentence which isn't crushing but which reflects the criminality and takes on board the previous history and his very brief period of incarceration (sic) and the way in which he came to commit these offences. Plainly, he was a vulnerable drug user at the time, unable or unwilling to exercise his own self-will and resist the blandishments of someone asking him to provide them with drugs.
[27] Sentencing ts 62.
In response to these submissions, the prosecutor referred to the prosecution brief and noted that the appellant agreed to sell methylamphetamine to the UCO within 10 to 15 minutes of first meeting her. The prosecutor submitted that the police would not have targeted the appellant merely because he was a vulnerable drug user. The prosecution did not accept that any mitigation arose from the way in which the police conducted the operation.[28]
[28] Sentencing ts 64.
The prosecutor also referred to evidence of communications between the appellant and the UCO that were included in the prosecution brief. It was submitted that the appellant was often the one initiating contact. On one occasion when he changed his telephone number the appellant had gone to some lengths to provide the UCO with his new phone number. The prosecutor said that this was not a case of advantage being taken of the appellant.[29]
[29] Sentencing ts 65.
The appellant did not seek to give or call any evidence to prove, as a mitigating factor, that he was induced to commit offences that he would not otherwise have been disposed to commit.
Evidence in the prosecution brief
The prosecution brief (which was tendered at the sentencing proceedings) included a statement from the UCO explaining the circumstances in which she first met the appellant. On 24 July 2018, the UCO met the appellant near his house. She was posing as a woman who had been effectively left on the street by her partner, who had also broken her mobile telephone. This and subsequent conversations between them were covertly recorded and transcripts of the recordings were included in the brief.[30] The following is drawn from the statement of the UCO and the transcripts and text messages.
[30] AB 125 - 282.
At the initial meeting, the UCO asked whether she could use the appellant's telephone. He agreed and she appeared to make a telephone call to a friend asking to be picked up. Whilst waiting in the appellant's house, the UCO talked to the appellant about a business she was trying to set up and about her children. The appellant spoke about the house he was living in and said that he used to work in a childcare centre. There was then talk about hanging out with friends and staying up all night and there was reference to using drugs. The UCO said that the reason that she was so upset was that her partner had 'smashed [her] pipe'. Shortly after this the appellant said that he could 'hook [her] up'. The UCO said that that was why she was in the area. He then produced a small clipseal bag containing approximately 3.5 g of methylamphetamine from which he removed 0.3 g and placed it into a second clipseal bag. He handed the second clipseal bag to the UCO.[31]
[31] AB 167 - 169.
Shortly after, another undercover police officer arrived, purporting to be a friend giving the UCO a lift. Before leaving, the UCO asked the appellant how much it would cost to buy drugs and he asked how much she wanted. She said a ball, if he had it, and they agreed a price of $900. The appellant told the UCO to contact him and wrote his telephone number on a ripped piece of paper. He then walked to a spare room and returned to hand the UCO a small clipseal bag containing 3.5 g of methylamphetamine. She returned the first small clipseal bag containing 0.3 g.[32]
[32] AB 129 - 130; 170 - 172.
On 26 July 2018 the UCO sent the appellant a text message in an attempt to arrange the purchase of a further 3.5 g of methylamphetamine. At approximately 1.11 pm the appellant responded, and an arrangement was made to meet at a car park in Balcatta. At the car park the appellant got into the UCO's car and provided her with a small clipseal bag containing 3.5 g of methylamphetamine, for which she paid $900.[33]
[33] AB 131 - 133.
During a conversation in the car the appellant asked the UCO if she sold drugs. She responded by saying 'not too much to be honest with you, just balls here and there.' She then referred to an associate and said, 'he moves ounces and stuff but he wanted me to ask you for prices you do for ounces'. The appellant responded by saying, 'yeah, probably, um, one and a half.' The UCO said that her associate would probably agree to that but otherwise she would just 'grab a couple of balls from you next week if that's cool.' The appellant responded by saying, 'yeah, yeah all good just send us a message or give us a call.'[34]
[34] AB 191 - 192.
On Sunday 5 August 2018 the UCO received a text message from the appellant to which she responded. The text exchange was as follows:[35]
Appellant: Hey Ash how you been??? Wat u been up to???
UCO:Hey!! I'm gud … just been flat out hey. How u? Need to catch up in next few days if you free??
Appellant:I'm good mate jus wanted to make sure you were still alive haha … all g keep in touch n take care
[35] AB 200.
On Wednesday 8 August 2018 the UCO sent a text message to the appellant and shortly after received a response from a new number. The text exchange was as follows:[36]
UCO:Hey Quang! How are you?? Free tomoz round lunch to catch up???
Appellant:Hey Ash its ur lifesaver haha!!!! … this my new number k n yeah give me a call round then should be all g …
UCO:Haha J that's what I'll save your new number as! Sweet … I call ya tomoz
Appellant:Well I'm saving you as DD then haha … either interpretation suits you well I think [two emojis] cu then DD
[36] AB 201 - 202.
On 9 August 2018 the UCO telephoned the appellant on his mobile telephone number. In the call she asked him if he was 'still good for the same thing that we spoke about the other day'. He appeared to express some doubt and she then asked what he could do and whether he could do half of that. The appellant agreed, a price was discussed, and an arrangement was made to meet at the same car park as before. At approximately 11.54 am the UCO attended the car park and sent a text message to the appellant advising him that she had arrived. They then met in the UCO's car. The appellant took a small Rexona bottle from his jeans pocket and removed the lid exposing a package wrapped in silver electrical tape. The UCO took the package which she understood to contain 28 g of methylamphetamine and handed the appellant $5,500 in payment.[37]
[37] AB 137 - 138; 203.
During the conversation in the car, the appellant said that he had half of the quantity of drugs and would drop the other half off as soon as he got it. He said that the person who had supplied him with the drug had promised to come back shortly but before he did the appellant received the UCO's message. The UCO asked whether it was normally this hard to get. The appellant said 'no' and that he would usually be able to tell his supplier what he needed by 9.00 pm and get it by 12.00 or 1.00 pm the next day. The appellant said he told his supplier the previous night and that he would have to chase it up.[38]
[38] AB 212 - 214.
The appellant then told the UCO that he had been pulled over by the police a couple of weeks previously and that they had taken his telephone. That was why he had switched numbers.[39]
[39] AB 214 - 215.
On handing over the money, the UCO said that her associate was looking to purchase more drugs. She then asked whether that would be a hassle and the appellant responded, 'it's not 'cause I need to go get my own too anyway.' He said he would be doing that between then and 3.00 pm. He agreed to supply further drugs the following day and said that 'it should be pretty easy.' Later he said that he thought he would have the additional drugs later that night. There was then the following exchange:[40]
[40] AB 219 - 222.
UCO:Do you reckon we could tee up, like - how many could you do? 3 or 4?
Appellant:Um …
UCO:And get the price down a little bit? Or …
Appellant:3. Its …
UCO:Well you tell …
Appellant:… ea - easy (indistinct)
UCO:You tell me what you can do, and then …
Appellant:Its easy enough to get. Yeah.
UCO:I can let him know. You know …
Appellant:Its easy enough to get, as long as you got …
UCO:Yeah
Appellant:… the, um, cash there.
Later the appellant said:[41]
Appellant:How about, the next time I get, I let you know because it'll be enough for what you want.
UCO:OK
Appellant:As soon as I get it I'll let you know.
[41] AB 223.
On the following day, 10 August 2018, the UCO and the appellant again met at the car park in Balcatta. On this occasion, a male UCO was also present and was introduced as the female UCO's associate. The purpose of this meeting was for the appellant to provide the other half of the 28 g owed from the previous day. At this meeting the appellant handed a small package to the UCO which was wrapped in silver electrical tape. The UCO unwrapped the tape and observed a layer of tissue paper in which was a small clipseal bag with another clipseal bag inside. She removed the inner clipseal bag which contained what appeared to be 14 g of methylamphetamine. She weighed the bag and its contents and advised that it was underweight by approximately 0.1 g. The appellant then handed a second clipseal bag which contained approximately 0.5 g of a white crystal substance which she believed to be methylamphetamine.[42]
[42] AB 139 - 143.
The male UCO then asked the appellant whether he was going to be able to do 'a couple' next week. The appellant agreed that he could, and the following exchange then occurred:[43]
[43] AB 248.
Male UCO:Like, big ones, though? Not fu - no halves, nothing like that. Like - like …
Appellant:(indistinct)
Male UCO:Two, three ounces.
Appellant:Yeah (indistinct) right now if you want. Not right now but (indistinct) fucking (indistinct).
Female UCO: I've got to get to work man.
Male UCO:Early - early next week type of thing.
Appellant:Um, just give us, like, um - just give us, like, a day's notice (indistinct) its all good and, um …
Later in the conversation the male UCO repeated that he would want 2 or 3 ounces the following week but would give a day's notice and that the arrangement would be to meet the female UCO in the same way. The appellant agreed that he was happy with that. He said he had been stressed out about the need to provide the rest of the drugs that had been undersupplied the previous day and said that they could trust him.[44]
[44] AB 249 - 251.
On 14 August 2018 the female UCO sent the appellant a text message suggesting that they catch up 'for the 2 or 3 that [they] spoke about last week'. An arrangement was then made to meet the following day.[45]
[45] AB 254 - 257.
On Wednesday 15 August 2018 the female UCO and the appellant met at the car park in Balcatta. The UCO sent the appellant a message advising of her arrival. About an hour later she received a telephone call from the appellant in which he said it was necessary to change the meeting location. A short time later, the appellant approached the UCO's car and got in. They had a conversation about the purchase of 3 ounces (84 g) of methylamphetamine. During the conversation the appellant said that the methylamphetamine was with his friend who was in a car nearby and he assured the UCO that there was 3 ounces in his friend's possession. He attempted to ring his friend and the UCO noted that the number called was one of the appellant's own telephone numbers.[46]
[46] AB 147, 258 - 267.
The appellant then got out of the vehicle and walked away in a south-easterly direction in order to get his friend. A short time later another man approached the UCO's car and got in. This man removed a package from a plastic bag and placed it in the drinks console. The package was wrapped in silver electrical tape. The UCO took possession of the package and removed the outer layer of the tape which revealed a layer of tissue paper. She tore open the tissue paper which revealed a sandwich sized clipseal bag secured with an elastic band. The sandwich bag appeared to contain approximately 84 g of a white crystal substance that was believed to be methylamphetamine. The UCO handed the man $16,500 as payment for the drugs. She then observed the appellant driving towards her location and parking his car opposite hers. The UCO weighed the contents of the sandwich bag, advised the man that the weight was correct and he then got out of the car. She observed him to get into the appellant's car before they drove away.[47]
[47] AB 146 - 150.
On Monday 27 August 2018, the UCO had a text message conversation with the appellant regarding the purchase of 2 ounces (56 g) of methylamphetamine the following day. The following day there was a further text message conversation regarding a meeting time to collect the 2 ounces.[48]
[48] AB 150, 272 - 275.
Sentencing Remarks
The learned sentencing judge noted that the appellant was selling drugs to an undercover police officer and that it had been submitted on his behalf that he was a vulnerable drug user who had not long been out of prison at the time of the offences. He then summarised the appellant's personal circumstances, the reports and the personal references. His Honour noted that in the appellant's letter to the court he said that he felt that he had been trapped into committing the offences.[49]
[49] Sentencing ts 68.
His Honour referred to the appellant's pleas of guilty and allowed a discount of 15% pursuant to s 9AA of the Sentencing Act1995 (WA). He noted the need for the sentence to incorporate general and personal deterrence. He said that the fact that the appellant had served the previous sentence of six and a half years shortly before committing the present offences 'perhaps increased' the need for personal deterrence.[50]
[50] Sentencing ts 70 - 71.
His Honour found that the offending was committed for financial gain, but that the appellant also had a drug habit. He found that the conduct was repeated and persistent. He accepted that the appellant was remorseful and had a desire to overcome his drug dependency and spend time with his daughter before she becomes an adult. On the other hand, he noted that attempts at rehabilitation in the past had not proven successful.[51]
[51] Sentencing ts 71 - 72.
His Honour referred to the totality principle and the need to ensure that the total effective sentence bears a proper relationship to the overall criminality. He noted that the present offences were committed within a short time after being released from prison.[52] He then said:[53]
So a lot of your life will have been spent in custody, and I need to make sure that you don't become institutionalised in that process and I have regard to therefore to the totality principle in terms of determining questions of accumulation and concurrence, because without having regard to that principle, if I add up all nine offences and come to a bottom line, that would be too long a period in custody.
[52] Sentencing ts 74.
[53] Sentencing ts 74.
Grounds of appeal
There are two grounds of appeal. They are as follows:[54]
(1)The learned sentencing judge erred in law, alternatively there was a miscarriage of justice, in that his Honour failed to take into account, and make findings concerning, the extent to which the appellant's culpability was diminished by the involvement of undercover police officers in encouraging the commission by the appellant of some or all of the offences.
(2)The total effective sentence of 7 years and 6 months' imprisonment infringed the first limb of the totality principle.
[54] AB 10.
Appellant's submissions
As to ground 1, the appellant submits that this is not a case where the undercover operative merely gave the appellant the opportunity to commit an offence. Rather, it is contended, this is a case where the offending would not have occurred if the undercover operative had not deliberately targeted the appellant, who was vulnerable, and slowly increased the gravity of the offending by requesting larger and larger amounts of methylamphetamine. It is submitted that there is a difference between talking a person into a crime that, left to themselves, they were unlikely to commit and merely giving a person an opportunity to do what they were already disposed to do.[55]
[55] AB 13 - 14.
The appellant accepts that he has committed similar offences before, in particular the 2011 offences of possession of a prohibited drug with intent to sell or supply. He also accepts that at the time of the commission of the present offences he had ongoing issues with drug addiction. However, he submits that he had made significant efforts to rehabilitate himself. The implication is that this made him less ready to engage in drug dealing. He submits that the learned sentencing judge failed to take into account or make findings as to whether the offence arose as a result of police involvement such as to diminish his culpability.[56]
[56] AB 17.
As to ground 2, the appellant submits that one rationale for the totality principle is that there is assumed rehabilitation and a reduced demand for retribution after an initial sentence has been served. The appellant submits that the total effective sentence of 7 years and 6 months' immediate imprisonment, when considered in the light of his previous sentence of 6 years and 6 months' immediate imprisonment and the brief period in between his release and the commission of the offences, infringed the first limb of the totality principle because it was not an appropriate reflection of the overall criminality of the offending.[57]
[57] AB 23.
Respondent's submission
As to ground 1, the respondent notes that the appellant's experienced counsel at sentencing did not submit that the alleged 'entrapment' of the appellant was a mitigating factor of any significance. Although reference was made to the appellant's sense of grievance about the police operation, this was referred to mainly in the context of explaining the delay in the appellant's guilty plea. In any event, the prosecutor disputed that there was any mitigation arising from the police operation and in those circumstances the appellant was obliged to prove those assertions on the balance of probabilities if he wished to rely on this as a mitigating factor.[58]
[58] AB 29.
The respondent submits that this is a case where the UCO simply provided the appellant with the opportunity to commit an offence he was disposed to commit. The appellant offered to supply the UCO with methylamphetamine very soon after the UCO mentioned a drug pipe. A very short time later the appellant sold 3.5 g of methylamphetamine to the UCO and provided his mobile telephone number, apparently to enable future transactions. Other factors that support a conclusion that the appellant was ready, willing, and able to deal in methylamphetamine include the appellant's criminal history, his relapse into drug addiction before he had any contact with the UCO, the evidence of communications with the UCO and his readiness to supply the drugs requested. When asked if he could supply 2 or 3 ounces, he immediately said that he could. Such conduct by a UCO is acceptable as it can demonstrate that the first offence is not an isolated incident and that the offender is prepared to sell a relatively large quantity of the drug.[59]
[59] AB 30 - 32.
As to ground 2, the respondent submits that the total offending conduct was serious and amply justified a total effective sentence of 7 years and 6 months' immediate imprisonment. The finding that the appellant's offending was for financial gain has not been challenged on this appeal. The total effective sentence fell within the acceptable range for offending of this type.[60]
[60] AB 37, 41.
As to the suggestion that some reduction was justified in light of the previous sentence of imprisonment, the respondent noted that the sentencing judge referred to ensuring that the appellant did not become institutionalised and that he said that he had regard to the totality principle in determining questions of accumulation and concurrency. In any event, the respondent submits that the totality principle does not require a sentencing court to make an allowance for sentences served prior to the commission of the relevant offence. The appellant's commission of further offences so soon after participating in residential rehabilitation and serving a lengthy term of imprisonment negates the suggestion that rehabilitation and reduced demand for retribution was a factor. The respondent submits that on the facts of the current case the sentencing judge was not required to make any significant allowance for the previous sentence when considering totality. In any event, a consideration of totality in the context of the previous sentence is unlikely to satisfy the court that a different total effective sentence should have been imposed.[61]
[61] AB 37, 42.
Ground 1 - relevant principles
A sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of an offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors.[62]
[62] Sentencing Act 1995 (WA) s 6.
A mitigating factor is a factor which in the court's opinion decreases the culpability of the offender or decreases the extent to which the offender should be punished.[63] It is well established that if an offender seeks to have the sentencing judge take a fact or circumstance into account as a mitigating factor, it will be for the offender to bring the matter to the judge's attention, and, if necessary, call evidence about it. If a mitigating factor is not conceded by the prosecution, the offender is required to prove it on the balance of probabilities.[64]
[63] Sentencing Act s 6.
[64] Law v The State of Western Australia [2009] WASCA 193 [27] - [34] (Buss JA, McLure and Pullin JJA agreeing).
The use of subterfuge and deception in undercover operations by the police is not unusual. Such conduct was considered by the High Court in Ridgeway v The Queen.[65] That case was concerned with whether there was a substantive defence of entrapment or, alternatively, whether evidence procured by illegal or improper conduct by the police could be excluded in the exercise of discretion on public policy grounds. However, in the course of their reasons, Mason CJ, Deane and Dawson JJ said (at [37]):
The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity.
[65] Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19.
In some circumstances the conduct of the police, even if not illegal or improper, may provide a degree of mitigation. In R v Reppucci[66] reference was made to the decision in Jackson v R[67] in which Malcolm CJ said that a police trap will give rise to a case for mitigation where there is real likelihood that the offender was encouraged or incited by police to commit an offence he would not otherwise have committed. His Honour then said there is no room for mitigation of the sentence where the effect of the police trap was merely to detect and obtain evidence against an offender who was prepared to commit the offence.[68] As Cox J said in R v Vuckov and Romeo, there is a big difference between talking a man into a crime that left to himself he was unlikely to commit and merely giving him the opportunity to do what he was already disposed to do.[69]
[66] The Queen v Reppucci (1994) 74 A Crim R 353, 367.
[67] Jackson v The Queen (Unreported, SCWACCA, Library No 8752, 8 March 1991) (16 ‑ 17).
[68] See also Le v The Queen [2004] WASCA 214; (2004) 147 A Crim R 269, [38].
[69] R v Vuckov and Romeo (1986) 40 SASR 498; (1986) 22 A Crim R 10, 523.
In sentencing an offender for offences concerned with trafficable quantities of methylamphetamine, the need for general and personal deterrence is paramount and matters personal to the offender, and mitigating factors, carry less weight. Thus generally speaking, entrapment, even where it is capable of constituting a mitigating factor, may not result in any significant reduction in sentence, because the need for general deterrence outweighs mitigating factors.[70]
[70] Le v The Queen [38]; Jackson v The Queen (19)
Ground 1 - the merits
In the present case the appellant's counsel in the sentencing proceedings did not seek to advance entrapment as a significant mitigating factor. Indeed, counsel accepted that it was 'not a defence or even much mitigation' in the circumstances of this case. Whilst reference was made to the appellant's grievances regarding the police operation, this was largely to explain the delay in the appellant entering his pleas of guilty.[71]
[71] Sentencing ts 56.
In any event, prosecuting counsel made it very clear that the State did not accept that there was any mitigation arising from the way in which the police operation was conducted.[72] In these circumstances, the onus fell on the appellant to establish on the balance of probabilities that entrapment was a mitigating factor if he wished it to be taken into account by the sentencing judge. [73] The appellant did not seek to prove as a mitigating factor that he was induced into committing offences that he would not otherwise have been disposed to commit. It is not now open to the appellant to assert that the sentencing judge failed to make findings in respect of a mitigating factor which he did not seek to establish at the sentencing proceedings.
[72] Sentencing ts 64.
[73] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [25]; Law v The State of Western Australia [29] - [31]; North v The State of Western Australia [2020] WASCA 6 [32].
Had the appellant accepted the onus of proving entrapment as a mitigating factor, he would inevitably have had to give evidence on oath and be subject to cross‑examination. That process would likely have involved the details of the interactions between him and the UCO being put to him. In all likelihood, having regard to the interactions between the appellant and the UCO as previously detailed, it would have been extremely difficult to establish that the appellant was induced to commit offences that he would otherwise have been unwilling to commit. That reality was no doubt what informed the approach of counsel at the sentencing proceedings.
In any event, the evidence on the prosecution brief (which was tendered at the sentencing) does not support a conclusion that the appellant was induced to commit offences that he would otherwise not have been disposed to commit. In particular, the suggestion that the appellant's offending would not have progressed beyond the small quantities initially supplied were it not for the action of the police officers is not made out. In reality the contention rises to no more than a complaint that the police could and should have, but did not, immediately arrested and charged the appellant after the first offence (which involved a relatively small amount of methylamphetamine). When, however, attention is directed to whether there is a real likelihood that the appellant was encouraged or incited to commit an offence which he would not otherwise have committed, it is apparent from the evidence of the communications between the UCO and the appellant set out at [37] to [52] that, whilst the prospect of larger amounts being supplied was initiated by the UCO, the appellant was not coerced, pressured or persuaded to do so. Rather, the appellant was a very willing and active participant in the process. Given the opportunity to sell larger quantities, he eagerly accepted it.[74] Furthermore, it is telling that when the UCO sought larger amounts the appellant did not refer the UCO to his supplier but agreed to supply the drugs himself.
[74] A similar factual scenario arose in Gyurka v The State of Western Australia [2001] WASCA 113 [49] (Steytler J).
This was not, in our view, a circumstance where the appellant was talked into committing an offence that left to himself he was unlikely to commit. Rather, reasonably viewed in context, the UCO did no more than mention increased amounts of methylamphetamine to test and determine the appellant's capacity and willingness to supply amounts of the prohibited drug. The UCO gave the appellant an opportunity to do what he was already disposed to do.
The appellant's submission that his past efforts at rehabilitation support a conclusion that he would have been unlikely to supply the larger amounts of drugs unless the UCO had induced him to do so is also not made out. The fact is that the appellant's efforts at rehabilitation had not been successful. He had not completed the rehabilitation course when he was released on parole. He had breached parole and been returned to custody. Furthermore, it was admitted by the appellant that shortly after his release from prison he had relapsed into drug use. The sentencing judge also found that the motivation for the offending was financial. That was a finding that was not challenged on the appeal.[75]
[75] Sentencing ts 71 - 72.
The appellant was a man with past history of drug offending, including in quantities that were comparable to those involved here. The 2011 offending included an offence of possession with intent to sell or supply that related to a quantity of 56 g of methylamphetamine that the appellant admitted he planned to sell.[76] It could not be said that the appellant was a person who had shown no previous inclination to deal in quantities of drugs such as those that were involved in the more serious of these offences.[77]
[76] AB 28.
[77] See R v Vuckov and Romeo (523) (Cox J).
There was no mitigatory value to be derived from the conduct of the police in this case. In any event, the importance of general and personal deterrence overwhelmed any weight such a factor could have in the circumstances of this case.[78]
[78] Le [38] (Malcolm CJ), referring to Jackson v R.
Whilst we would grant leave in respect of this ground, it must be dismissed.
Ground 2 - relevant principles
The relevant principles relating to an allegation of implied error by breach of the totality principle are well established. Implied error arises where the end result is so unreasonable or plainly 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 it would have exercised the discretion differently.[79]
[79] Kabambi v The State of Western Australia [2019] WASCA 44 [21]; Trajkoski v The State of Western Australia [2018] WASCA 176 [30]; Salkilld v The State of Western Australia [2017] WASCA 168 [48].
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 a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referrable to the offender personally, all relevant sentencing factors and the total effective sentence imposed in comparable cases. The totality principle requires due proportionality between the total offending and the total punishment.[80]
[80] Kabambi [21]; LNV v The State of Western Australia [2021] WASCA 203 [49].
The totality principle generally applies where an offender is subject to more than one sentence; for example, where sentences are passed at the same time for a number of offences or where the offender being sentenced is still serving a sentence for another or other offences at the time of sentencing. The first limb of the totality principle requires the court to review the aggregate sentence to ensure that it is a just and appropriate measure of the total criminality involved in all of the offending.[81]
[81] LNV v The State of Western Australia [49].
There are limited circumstances where the totality principle can apply, at least by way of analogy, notwithstanding that the sentences for prior offences have been completed. This may arise where there is a delay, as a result of matters beyond the offender's control, between the commission of the offence and the imposition of the sentence for that offence.[82] An example of this is where an offender commits several similar offences within a short time in different States and can only be dealt with in one State after completion of the sentence in the other State.[83] Another example is where an offender is dealt with for further historic offences after serving a term of imprisonment for similar offences.[84]
[82] Carr v The State of Western Australia [2006] WASCA 125; Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59; Barnes v The State of Western Australia [2004] WASCA 258.
[83] As in Mill v The Queen.
[84] LYN v The State of Western Australia [2019] WASCA 45.
In Carr v The State of Western Australia the offender committed an armed robbery whilst on parole for a prior armed robbery. He had been in prison for much of the previous seven years for various offences. By the time he came to be sentenced he had completed all sentences for prior offences. On appeal it was submitted that the totality principle should have been applied to reduce the sentence for the most recent offence, having regard to the sentences recently completed. McLure P noted that the offender was not remorseful, had no desire to rehabilitate himself and was at high risk of re-offending. In these circumstances, there was no reduction in the need for punishment, denunciation and deterrence and no factual foundation for the application of the first limb of the totality principle.[85]
[85] Carr v The State of Western Australia [8]. See also Buss JA at [74]. See also Labrook v The State of Western Australia [2016] WASCA 127 [40] (Mitchell J, McLure P and Mazza JA agreeing).
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question, whilst important, is generally not the chief factor to be taken into account. Other factors include the nature and level of the offender's participation in drug dealing and whether the offending was committed for commercial gain. The degree of purity of the drug may be significant. Matters personal to an offender will almost always be subsidiary considerations, though they are not completely irrelevant.[86]
[86] The State of Western Australia v Atherton [2009] WASCA 148 [125].
On 18 September 2017, the maximum penalty for an offence under s 6(1) of the Misuse of Drugs Act 1981 (WA) involving 28 g or more of methylamphetamine (that is, a trafficable quantity) was increased from 25 years' imprisonment to life imprisonment. The sentencing principles which apply when the maximum penalty for an offence is increased were recently summarised in HSV v The State of Western Australia[87] and Musulin v The State of Western Australia.[88] As this court noted in Musulin, an increase in the maximum penalty for an offence is an indication that the Parliament regards the offences being of a more serious kind than was previously the case. The maximum penalty of life imprisonment demonstrates that Parliament now regards offences under s 6(1) of the Misuse of Drugs Act involving a trafficable quantity of methylamphetamine as being of the most serious kind.[89]
[87] HSV v The State of Western Australia [2020] WASCA 5 [44] - [45].
[88] Musulin v The State of Western Australia [2020] WASCA 18 [37] ‑ [41].
[89] Musulin v The State of Western Australia [37].
Ground 2 the merits
The maximum penalties for each of the offences is referred to in the table at [3]. The maximum penalty of life imprisonment for counts 5, 6 and 7, which pertained to trafficable quantities of methylamphetamine, indicates the seriousness of those offences in particular.
The total offending in this case was clearly very serious. On six separate occasions the appellant either sold or offered to sell methylamphetamine including trafficable amounts on two occasions (counts 5 and 6). When his car was searched by police (count 7), the police located another trafficable amount of methylamphetamine as well as over $7,000 reasonably suspected to have been unlawfully obtained (count 8). A further quantity of methylamphetamine was found when the appellant's house was searched (count 9). The total amount of methylamphetamine sold, offered or possessed with intent to sell or supply was 213.31 g.
The appellant had numerous previous convictions for possessing drugs with intent to sell or supply. He had only been released from a lengthy prison sentence for similar drug offending five months prior to the current offending. Whilst past offending is not an aggravating factor, the fact that the appellant was willing to engage in such serious offending so shortly after his release from custody reflects the need for both personal deterrence and the protection of the community. Unsurprisingly, the appellant was found to be at risk of reoffending and personal deterrence was a significant factor in sentencing.
The appellant referred to the following cases as being relevantly comparable: Carlucci v The State of Western Australia,[90] Jacomb v The State of Western Australia,[91] Baker v The State of Western Australia[92] and Musulin. The respondent referred to Motley v The State of Western Australia,[93] Staiger v The State of Western Australia,[94] Cochrane v The State of Western Australia,[95] Blasco v The State of Western Australia,[96] McConnell v The State of Western Australia,[97] YLT v The State of Western Australia,[98] The State of Western Australia v Delaney,[99] SYL v The State of Western Australia,[100] KJL v The State of Western Australia[101] and Musulin. Those cases all turned on their particular circumstances and it is unnecessary to refer to the facts of each of them. It is sufficient to say that they do not establish that the total sentence here was inconsistent with sentences imposed in other comparable cases.
[90] Carlucci v The State of Western Australia [2019] WASCA 37; (2019) 276 A Crim R 472.
[91] Jacomb v The State of Western Australia [2021] WASCA 81.
[92] Baker v The State of Western Australia [2020] WASCA 117.
[93] Moodley v The State of Western Australia [2020] WASCA 158.
[94] Staiger v The State of Western Australia [2020] WASCA 99.
[95] Cochrane v The State of Western Australia [2021] WASCA 5; (2021) 57 WAR 262.
[96] Blasco v The State of Western Australia [2021] WASCA 26.
[97] McConnell v The State of Western Australia [2020] WASCA 59.
[98] YLT v The State of Western Australia [2020] WASCA 217.
[99] The State of Western Australia v Delaney [2020] WASCA 93.
[100] SYL v The State of Western Australia [2021] WASCA 16.
[101] KJL v The State of Western Australia [2021] WASCA 65.
The submission that the totality principle should have been applied in a way that had regard to the previous prison sentence appears to be a suggestion that some degree of leniency should have been extended because the appellant had only been out of prison for a short time before being remanded in custody on the current offences. As noted earlier, the circumstances in which the totality principle will apply by analogy are limited.
There are several possible rationales for the totality principle to apply to take into account prior completed sentences. First, the offending being dealt with may be part of the same course of conduct as the previous offending and therefore the total criminality should be reflected in the combined sentences.[102] That was not the case here. This was not a case where offences that could properly have been dealt with together were dealt with separately due to a delay beyond the control of the appellant. The offending here all occurred after the appellant was released from prison and represented entirely independent and separate offending conduct.
[102] Mill v The Queen [16].
Secondly, there may have been some rehabilitative benefits as a result of the first sentence which could justify a lesser sentence being imposed.[103] This is not so much an application of totality as an acceptance of the mitigatory value of rehabilitation. It might be particularly relevant where the new offences are historic offending that pre-date the recently completed sentence. That was not the case here. Furthermore, the appellant did not complete the rehabilitation course that he commenced whilst on parole and it was evident from his relapse into drug use and drug dealing that no inference that the previous sentence had resulted in rehabilitation could be drawn. To the contrary, the speed with which the appellant fell back into drug use and offending indicated a heightened need for personal deterrence.[104]
[103] Roffey v The State of Western Australia [2007] WASCA 246 [25].
[104] The State of Western Australia v Doodson [2021] WASCA 148 [52].
Thirdly, there may be a concern that the offender will become institutionalised if returned to prison for a lengthy period so soon after release.[105] Again, this is not so much a totality question as a concern that a further sentence of imprisonment may make the risk of further offending in the future greater and imperil rehabilitation and the prospects of the appellant being successfully reintegrated into the community at the completion of his sentence. That is a factor that must be weighed against other considerations in sentencing for such serious matters. Those other factors include the importance of general and personal deterrence. In the circumstances of this case such mitigatory value as could be derived from the possibility that the appellant would be institutionalised was recognised by the learned sentencing judge and the sentences imposed do not indicate an outcome that was inconsistent with that consideration.
[105] Sentencing ts 74.
It has not been established that the total effective sentence of 7 years and 6 months' immediate imprisonment breached the first limb of the totality principle. In particular, it has not been established that the total effective sentence failed to bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances (including those referrable to the appellant personally), all relevant sentencing factors, and sentences imposed in comparable cases.
There is no merit in this ground of appeal and leave in respect of it should be refused.
Conclusion
We would make the following orders:
(1)Leave in respect of ground 1 is granted.
(2)Leave in respect of ground 2 is refused.
(3)Appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
8 DECEMBER 2022
7
34
0