Le v The State of Western Australia
[2014] WASCA 120
•13 JUNE 2014
LE -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 120
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 120 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:89/2013 | 15 MAY 2014 | |
| Coram: | BUSS JA NEWNES JA MAZZA JA | 13/06/14 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time to appeal granted Leave to appeal on grounds 1, 2 and 3 refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | AUGUSTINE VINH QHANG LE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Appellant convicted, on his very late pleas of guilty, of eight counts in an indictment Two distinct episodes of offending One episode comprising one count of unlawful possession of a modified firearm and three counts of possessing a prohibited drug with intent to sell or supply Another episode comprising three counts of possessing a prohibited drug with intent to sell or supply and one count of attempting to possess a prohibited drug with intent to sell or supply Second episode occurred while the appellant was on bail Manifest excess Totality principle |
Legislation: | Firearms Act 1973 (WA), s 19(1), s 19(1ac) Misuse of Drugs Act 1981 (WA), s 3(1), s 6(1)(a), s 33(1), s 34 |
Case References: | Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 Cant v The State of Western Australia [2009] WASCA 188 Chu v The State of Western Australia [2012] WASCA 135 Dann v The State of Western Australia [2006] WASCA 254 Dao v The State of Western Australia [2007] WASCA 237 Davies v The State of Western Australia [2005] WASCA 47; (2005) 30 WAR 31 Formica v The State of Western Australia [2013] WASCA 237 Huynh v The State of Western Australia [2012] WASCA 8 Karakuyu v The State of Western Australia [2012] WASCA 75 Lynch v The State of Western Australia [2011] WASCA 243 Moreton v The State of Western Australia [2011] WASCA 258 Pinkstone v The Queen [2004] HCA 23; (2004) 219 CLR 444 Ricciardi v The State of Western Australia [2012] WASCA 106 Siskopoulos v The State of Western Australia [2006] WASCA 225 Smith v The State of Western Australia [2012] WASCA 91 Swains v The State of Western Australia [2007] WASCA 251 The State of Western Australia v Littlefair [2013] WASCA 177 TLM v The State of Western Australia [2009] WASCA 106 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LE -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 120 CORAM : BUSS JA
- NEWNES JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : DERRICK DCJ
File No : IND 466 of 2012
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted, on his very late pleas of guilty, of eight counts in an indictment - Two distinct episodes of offending - One episode comprising one count of unlawful possession of a modified firearm and three counts of possessing a prohibited drug with intent to sell or supply - Another episode comprising three counts of possessing a prohibited drug with intent to sell or supply and one count of attempting to possess a prohibited drug with intent to sell or supply - Second episode occurred while the appellant was on bail - Manifest excess - Totality principle
Legislation:
Firearms Act 1973 (WA), s 19(1), s 19(1ac)
Misuse of Drugs Act 1981 (WA), s 3(1), s 6(1)(a), s 33(1), s 34
Result:
Extension of time to appeal granted
Leave to appeal on grounds 1, 2 and 3 refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters & Mr M G Pemberton
Respondent : Mr J A Scholz
Solicitors:
Appellant : Putt Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49
Cant v The State of Western Australia [2009] WASCA 188
Chu v The State of Western Australia [2012] WASCA 135
Dann v The State of Western Australia [2006] WASCA 254
Dao v The State of Western Australia [2007] WASCA 237
Davies v The State of Western Australia [2005] WASCA 47; (2005) 30 WAR 31
Formica v The State of Western Australia [2013] WASCA 237
Huynh v The State of Western Australia [2012] WASCA 8
Karakuyu v The State of Western Australia [2012] WASCA 75
Lynch v The State of Western Australia [2011] WASCA 243
Moreton v The State of Western Australia [2011] WASCA 258
Pinkstone v The Queen [2004] HCA 23; (2004) 219 CLR 444
Ricciardi v The State of Western Australia [2012] WASCA 106
Siskopoulos v The State of Western Australia [2006] WASCA 225
Smith v The State of Western Australia [2012] WASCA 91
Swains v The State of Western Australia [2007] WASCA 251
The State of Western Australia v Littlefair [2013] WASCA 177
TLM v The State of Western Australia [2009] WASCA 106
1 BUSS JA: This is an application for leave to appeal against sentence.
2 The appellant was convicted, on his very late pleas of guilty in the District Court, of eight counts in an indictment.
3 The indictment alleged that on 8 April 2011, at Girrawheen:
(a) the appellant was in possession of a firearm, namely a 410 gauge shotgun, while not being the holder of a licence or permit under the Firearms Act 1973 (WA) entitling him to do so, and the firearm had been altered from the design or characteristics of its original manufacture, contrary to s 19(1) read with s 19(1ac) of the Firearms Act (count 1);
(b) the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act) (count 2);
(c) the appellant had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act (count 3); and
(d) the appellant had in his possession a prohibited drug, namely MDPV, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act (count 4).
4 The indictment also alleged that on 28 September 2011, at Westminster:
(a) the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act (count 5);
(b) the appellant attempted to possess a prohibited drug, namely MDMA, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the Act (count 6); and
(c) the appellant had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act (count 7).
5 The indictment further alleged that on 28 September 2011, at Girrawheen, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act (count 8).
6 On 26 March 2013, Derrick DCJ imposed individual sentences of immediate imprisonment, as follows:
(a) Count 1 - 12 months' imprisonment.
(b) Count 2 - 2 years 4 months' imprisonment.
(c) Count 3 - 6 months' imprisonment.
(d) Count 4 - 18 months' imprisonment.
(e) Count 5 - 4 years 2 months' imprisonment.
(f) Count 6 - 2 years 4 months' imprisonment.
(g) Count 7 - 12 months' imprisonment.
(h) Count 8 - 2 years 6 months' imprisonment.
7 His Honour ordered that the sentence for count 2 be served cumulatively on the sentence for count 5 and that the sentences for the other counts be served concurrently with each other and concurrently with the sentence for count 5. The total effective sentence was therefore 6 years 6 months' imprisonment. A parole eligibility order was made.
The application for an extension of time
8 The last date for appealing against sentence was 16 April 2013. The appellant did not file his appeal notice until 17 April 2013. He has filed an affidavit sworn by his solicitor, Natalie Sinton, in support of his application to extend time.
9 On 9 December 2013, Mazza JA referred the application for an extension of time to the hearing of the appeal.
10 I will consider the merits of the grounds of appeal before deciding whether an extension of time should be granted.
The facts and circumstances of the offending
11 On 8 April 2011, the appellant's mother contacted police after discovering a firearm and a bag containing white powder in his bedroom in her house in Girrawheen. Police searched the house and discovered a 410 gauge shotgun with a shortened barrel (count 1); 16.46 g of methylamphetamine with a purity between 78% and 85% (count 2); 14.7 g of cannabis (count 3); and 6.64 g of MDPV, a derivative of methylamphetamine (count 4). Police also discovered $36,000 cash in $100 notes and other items associated with drug dealing. They also found two shotgun cartridges. The appellant was arrested, charged with those offences and released on bail.
12 On 28 September 2011, police searched a house in Westminster where the appellant was living with his girlfriend. Police located 56.17 g of methylamphetamine with a purity between 69% and 72% (count 5); 14.65 g of tablets which resembled MDMA but later analysis revealed they did not contain any illicit substances (count 6); and 55.3 g of cannabis (count 7). Police also located more than $10,000 cash and other items associated with drug dealing.
13 Later on 28 September 2011, police again searched the home of the appellant's mother in Girrawheen and located 11.6 g of methylamphetamine with a purity of 80% (count 8) and other items associated with drug dealing.
Concessions and submissions at the sentencing hearing
14 At the sentencing hearing, the prosecutor conceded that the firearm and the drugs the subject of counts 1, 2, 3 and 4 were owned by another person and that the appellant was holding them for that person and intended, upon request, to return them to the owner. In other words, the State accepted that the appellant did not intend to sell the drugs the subject of counts 2, 3 and 4, but rather he was a bailee of the drugs for the owner. The prosecutor also conceded that the $36,000 cash found by the police on 8 April 2011 was the property of the owner of the firearm and the drugs and that the appellant was holding the cash for the owner.
15 The appellant's explanation for the offending alleged in counts 1, 2, 3 and 4, as advanced by defence counsel at the sentencing hearing, was that at the time the appellant was a very heavy user of methylamphetamine and he had agreed to hold the firearm, drugs and cash as bailee for the owner without thinking of the consequences. Defence counsel asserted that the appellant received no benefit for holding the firearm, drugs and cash on behalf of the owner.
16 The appellant's explanation for the offending alleged in counts 5, 6, 7 and 8, as advanced by defence counsel at the sentencing hearing, was that after the police seized the firearm, drugs and cash the subject of counts 1, 2, 3 and 4, about five men visited his home and told him that he must repay the value of the seized property. The appellant claimed that he ultimately agreed with the men that they would provide him with drugs which he would sell in order to repay the debt. Initially, the prosecutor said the State did not accept that the appellant 'took up' drug dealing to repay a debt, but later indicated that the State did not take issue with the claim and did not require a trial of issues in relation to the matter.
The appellant's personal circumstances and antecedents
17 The appellant was born on 13 March 1980.
18 His siblings and parents came to Australia from Vietnam in 1978. He was born in Australia. His childhood was marred by domestic violence perpetrated by his father against him, his siblings and his mother. The appellant's parents separated in 2007. This was a difficult and stressful time for the family.
19 The appellant formed a relationship with a woman about seven months before he was remanded in custody in connection with the offending in question. He has a 7-year-old daughter from a previous relationship. The daughter resides with the appellant's mother.
20 He is close to his mother. He does not appear to harbour any resentment as a result of her action in contacting the police after she discovered the firearm and the drugs in his bedroom. She remains supportive of him.
21 The appellant completed year 12 at school. He then commenced an accounting course at TAFE but did not complete it. The appellant has been employed regularly in a variety of occupations.
22 He has a long history of illicit drug abuse. He commenced using cannabis at age 14. He started using heroin at age 18. When he was 20 he commenced using methylamphetamine. He has occasionally consumed ecstasy.
23 The justice system has given the appellant numerous opportunities, without success, to address his illicit drug abuse.
24 The appellant has an extensive prior criminal record. Most of his convictions relate to the possession of prohibited drugs and traffic offences. However, he also has prior convictions for giving false personal details to police, breach of bail, stealing, carrying a prohibited weapon and two prior convictions for possession of prohibited drugs with intent to sell or supply. All of those offences were punished by fines or community based orders. In 2009 he was sentenced to a total of 20 months' imprisonment for two offences of driving a motor vehicle while he had no authority to drive.
The sentencing judge's sentencing remarks
25 As to counts 1, 2, 3 and 4, the sentencing judge accepted that the appellant had been acting as a bailee for a friend, he had received no benefit for holding the firearm, drugs and cash, and his culpability in relation to the drugs was less than that of an offender who was in possession of significant quantities of prohibited drugs with the intention of selling them for profit. His sole intention was to hold the firearm, drugs and cash for the friend and to return them to him on request. Nevertheless, his Honour considered the offences were very serious. Although the appellant did not know the precise weight and purity of the methylamphetamine or the MDPV or the precise weight of the cannabis, he must have known, given his previous involvement with illicit drugs and the fact that he was storing the drugs in his bedroom, that the quantities were reasonably significant and the purity of the methylamphetamine was likely to be reasonably high. The appellant's role as a custodian of the drugs enabled people higher in the hierarchy of the distribution chain to minimise the risk that they would be found in possession of them. He knew the drugs would be distributed by others into the community.
26 As to counts 5, 6, 7 and 8, the sentencing judge was not satisfied beyond reasonable doubt that the appellant was actively sourcing the drugs from the manufacturer. Also, his Honour was not satisfied beyond reasonable doubt that the appellant's motive in selling the drugs was to make a personal profit. His Honour found that the appellant was prepared to sell the drugs to anyone who was willing to purchase them (including users and those intending to on-sell them) for the purpose of meeting his basic living expenses, funding his drug addiction and repaying the debt he owed to other drug dealers as a result of the police having seized the property the subject of counts 1, 2, 3 and 4. His Honour accepted that the five men who had demanded that the appellant repay the value of the property seized by the police had threatened him and his family with violence if he did not comply. Although he characterised the appellant's conduct as involving a 'high degree of moral blameworthiness', his Honour said the appellant's criminality was less serious than an offender who possessed drugs with the intention of selling them for a significant profit, without any form of 'duress' (ts 69). His Honour found that throughout September 2011 the appellant engaged in a significant course of drug dealing. His Honour said he appreciated the seriousness of the appellant's predicament and accepted he genuinely feared for the safety of himself and his family, but his 'difficulties were completely of [his] own making' (ts 69).
27 The appellant pleaded guilty on the first day of his two-week trial. Pursuant to s 9AA of the Sentencing Act 1995 (WA), the sentencing judge allowed him a discount of 10% on the individual sentences of imprisonment he would otherwise have imposed.
The grounds of appeal
28 The appellant relies on four grounds of appeal.
29 Ground 1 alleges that the sentence of 4 years 2 months' imprisonment for count 5 was manifestly excessive.
30 Ground 2 alleges that the sentence of 2 years 4 months' imprisonment for count 2 was manifestly excessive.
31 Ground 3 alleges that the sentence of 12 months' imprisonment for count 1 was manifestly excessive.
32 Ground 4 alleges that the total effective sentence of 6 years 6 months' imprisonment infringed the first limb of the totality principle.
33 The appellant complains about the length of the terms of imprisonment. He does not assert that the wrong type of sentence was imposed.
34 On 9 December 2013, Mazza JA granted leave to appeal on ground 4 and referred the application for leave to appeal on grounds 1, 2 and 3 to the hearing of the appeal.
The merits of grounds 1, 2 and 3
35 It is convenient to deal with grounds 1, 2 and 3 together. Each ground alleges that an individual sentence imposed by the sentencing judge was manifestly excessive.
36 It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances and antecedents of the offender.
37 The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
38 A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
39 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
40 All of the propositions I have stated are well-established by the case law.
41 The maximum penalty for the offence of possessing methylamphetamine with intent to sell or supply it to another, contrary to s 6(1) of the Act, is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the Act.
42 The effect of the extended definition of 'to supply' in s 3(1) of the Act is, relevantly, to make s 6(1)(a) of the Act applicable where the accused has been given the prohibited drug by another person, and the accused is in possession of the drug with a view to its being returned to or taken by that other person at some time. Accordingly, s 6(1)(a) applies to a person who is in possession of a prohibited drug merely as a bailee for another. See Pinkstone v The Queen [2004] HCA 23; (2004) 219 CLR 444 [49] (McHugh & Gummow JJ); Davies v The State of Western Australia [2005] WASCA 47; (2005) 30 WAR 31 [8] - [10] (Steytler P), [26] - [29], [37] - [40] (Roberts-Smith JA), [43] - [47] (McLure JA).
43 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 is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. All of these propositions are well-established by the case law.
44 As to count 5 in the present case, I have had regard to the sentencing dispositions in a range of cases including Dann v The State of Western Australia [2006] WASCA 254; Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49; Dao v The State of Western Australia [2007] WASCA 237; Cant v The State of Western Australia [2009] WASCA 188; Lynch v The State of Western Australia [2011] WASCA 243; Moreton v The State of Western Australia [2011] WASCA 258; Karakuyu v The State of Western Australia [2012] WASCA 75; Chu v The State of Western Australia [2012] WASCA 135; The State of Western Australia v Littlefair [2013] WASCA 177; Formica v The State of Western Australia [2013] WASCA 237; and the cases cited in those decisions.
45 Count 5 involved serious offending. It concerned 56.17 g of methylamphetamine with a high degree of purity between 69% and 72%. The appellant intended to distribute the drugs into the community. He had been engaging in the distribution of illicit drugs for at least a month before his arrest on 28 September 2011. His primary motivation in dealing with the drugs was to repay a debt to the owner of the drugs seized during the first search. This is not, however, a mitigating factor. When the appellant committed count 5 he was on bail for counts 1, 2, 3 and 4. This is an aggravating factor. See Moreton [47] (Buss JA, Mazza J agreeing) and the cases there cited.
46 The appellant was aged 31 when he committed count 5 and he was 33 when sentenced. He was not youthful or inexperienced for sentencing purposes.
47 The appellant was not of good character. He had a prior criminal record. Although the appellant's previous convictions, and the fact the previous sentences had not achieved the purposes for which they were imposed, did not aggravate the seriousness of the offending in question, those matters demonstrated that the current offences were not aberrations by a person who was otherwise of good character.
48 The principal sentencing considerations for count 5 were appropriate punishment and personal and general deterrence.
49 I am satisfied that the individual sentence of 4 years 2 months' immediate imprisonment for count 5 was within the range open to the sentencing judge on a sound exercise of his discretion. The sentence is broadly consistent with the sentencing range that is discernible from generally comparable cases. On my appraisal of the sentence for count 5, in the context of the maximum penalty, the facts and circumstances of the offending, the standards of sentencing customarily observed with respect to this kind of offence, the place which the appellant's offending occupies on the scale of seriousness of offences of this kind, the appellant's personal circumstances and antecedents and all aggravating and mitigating factors (including the very late plea of guilty), it is not reasonably arguable that the sentence is unreasonable or plainly unjust.
50 As to count 2 in the present case, I have had regard to the sentencing outcomes in a number of cases including Siskopoulos v The State of Western Australia [2006] WASCA 225; Swains v The State of Western Australia [2007] WASCA 251; TLM v The State of Western Australia [2009] WASCA 106; and the cases referred to in those decisions.
51 Count 2 also involved serious offending. It concerned 16.46 g of methylamphetamine with a high degree of purity between 78% and 85%. The appellant was sentenced on the basis that he was holding the drugs for another person. The appellant's role in relation to the drugs was important. He was concealing a significant quantity of an illicit drug on behalf of a person who wanted to distance himself from the drugs. The appellant knew the drugs were intended for distribution into the community.
52 In my opinion, the individual sentence of 2 years 4 months' immediate imprisonment for count 2, like the sentence for count 5, was within the range open to the sentencing judge on a sound exercise of his discretion. The sentence is broadly consistent with sentencing patterns apparent from generally comparable cases. After examining the sentence for count 2, in the context of the maximum penalty, the facts and circumstances of the offending, relevant standards of sentencing customarily observed, the place which the appellant's offending occupies on the scale of seriousness of offences of this kind, and all aggravating and mitigating factors including the appellant's personal circumstances and antecedents and his very late plea of guilty, it is not reasonably arguable that the sentence is unreasonable or plainly unjust.
53 The maximum penalty where a person is in possession of a firearm, and the person is not the holder of a licence or permit under the Firearms Act entitling him or her to do so, and the firearm has been altered from the design or characteristics of its original manufacture, is 7 years' imprisonment. See s 19(1ac) of the Firearms Act.
54 As to count 1 in the present case, I have considered the sentencing outcomes in Huynh v The State of Western Australia [2012] WASCA 8; Ricciardi v The State of Western Australia [2012] WASCA 106; and the other cases involving unlicensed firearms which are referred to in those decisions. I have also examined Karakuyu and Smith v The State of Western Australia [2012] WASCA 91, which involved offenders who had committed numerous drug and some firearm offences.
55 Count 1 also involved serious offending. The appellant was warehousing the firearm for a person who was evidently a well organised criminal. The firearm had been modified to permit its easy concealment on one's person. In the circumstances, the only reasonable inference is that the organised criminal would take possession of the firearm, as and when needed, to advance his criminal operations.
56 The principal sentencing factors for count 1 were appropriate punishment and personal and general deterrence.
57 In my opinion, the individual sentence of 12 months' immediate imprisonment for count 1 was within the range open to the sentencing judge on a sound exercise of his discretion. The sentence is broadly consistent with the sentencing range that is discernible from generally comparable cases. After evaluating the sentence for count 1, in the context of the maximum penalty, the facts and circumstances of the offending, the standards of sentencing customarily observed, the place which the appellant's offending occupies on the relevant scale of seriousness, and all aggravating and mitigating factors including the appellant's personal circumstances and antecedents and his very late plea of guilty, I am satisfied it is not reasonably arguable that the sentence is unreasonable or plainly unjust.
58 In summary, it is not reasonably arguable that any of the individual sentences for any of counts 1, 2 and 5 is manifestly excessive. Grounds 1, 2 and 3 are without merit.
The merits of ground 4
59 The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear 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 circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases. These propositions are well-established by the case law.
60 The maximum penalty for the offence of possessing only cannabis with intent to sell or supply it to another, contrary to s 6(1) of the Act, is 10 years' imprisonment or a fine of $20,000 or both. See s 34(2) of the Act.
61 The maximum penalty for the offence of possessing MDPV, and for the offence of attempting to possess MDMA, with intent to sell or supply it to another, contrary to s 6(1) of the Act, is 25 years' imprisonment or a fine of $100,000 or both. See s 33(1) and s 34(1) of the Act.
62 In the present case, I consider that the total effective sentence of 6 years 6 months' imprisonment bears a proper relationship to the overall criminality involved in all of the offences, viewed together, and having regard to all relevant circumstances and sentencing factors.
63 As to counts 1, 2, 3 and 4, the appellant was in possession of a modified firearm, a significant quantity of methylamphetamine with a high degree of purity, other drugs and a very large amount of cash. He had been entrusted with those items by the owner despite the fact that at the time he was apparently a heavy user of methylamphetamine. The owner relied on the appellant to hold, and not appropriate to his own use, any of the firearm, the drugs or the cash. In the circumstances, the only reasonable inference is that the $36,000 cash was the proceeds of the sale of illicit drugs or other criminal activities. I have already discussed the appellant's specific culpability in relation to counts 1 and 2.
64 As to counts 5, 6, 7 and 8, the appellant was willing to sell illicit drugs to anyone who was willing to purchase them including drug users and people who would have on-sold the drugs to others. I have already discussed the appellant's specific culpability in relation to count 5.
65 So, at two different times and in two different ways, the appellant was prepared to facilitate the dissemination into the community of substantial quantities of illicit drugs.
66 It was necessary, in order properly to mark the appellant's overall criminality in committing four offences on two disparate occasions (counts 1, 2, 3 and 4 on 8 April 2011 and counts 5, 6, 7 and 8 on 28 September 2011), to accumulate, to a significant extent, some of the individual sentences.
67 The commission of counts 5, 6, 7 and 8, while the appellant was on bail for counts 1, 2, 3 and 4, reinforced the need for a total effective sentence that would deter the appellant from reoffending.
68 The total effective sentence was within the range reasonably open to the sentencing judge on a proper exercise of his discretion.
69 In my opinion, error should not be inferred from the sentencing outcome in relation to the length of the total effective sentence. The term of 6 years 6 months did not infringe the first limb of the totality principle.
70 Ground 4 fails.
Conclusion
71 I would grant an extension of time to appeal because the appeal notice was filed only one day out of time and the delay has been explained satisfactorily.
72 Leave to appeal on grounds 1, 2 and 3 should be refused because none of those grounds has a reasonable prospect of success. Ground 4 has not been made out.
73 The appeal should therefore be dismissed.
74 NEWNES JA: I agree with Buss JA.
75 MAZZA JA: I agree with Buss JA.
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