Lear v The State of Western Australia
[2015] WASCA 90
•7 MAY 2015
LEAR -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 90
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 90 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:119/2014 | 19 FEBRUARY 2015 | |
| Coram: | BUSS JA MAZZA JA | 7/05/15 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BRETT ALBERT LEAR THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Leave to appeal against sentence Drug offences Total effective sentence of 9 years' imprisonment Whether appellant sentenced on erroneous facts Whether total effective sentence infringed the first limb of the totality principle |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(4)(a) Misuse of Drugs Act 1981 (WA), s 6(1)(c), s 32A, s 33(2)(a), s 34(1)(b) Sentencing Act 1995 (WA), s 9AA |
Case References: | Bui v The State of Western Australia [2014] WASCA 168 Delovski v The Queen [2002] WASCA 88 Galbraith v The State of Western Australia [2011] WASCA 70 Monument v The State of Western Australia [2007] WASCA 239 Neumann v The State of Western Australia [2013] WASCA 70 Pham v The State of Western Australia [2011] WASCA 244 Roffey v The State of Western Australia [2007] WASCA 246 Tema v The State of Western Australia [2011] WASCA 41; (2011) 206 A Crim R 104 The State of Western Australia v Toothill [2007] WASCA 236 Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LEAR -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 90 CORAM : BUSS JA
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SWEENEY DCJ
File No : IND 316 of 2014
Catchwords:
Criminal law - Leave to appeal against sentence - Drug offences - Total effective sentence of 9 years' imprisonment - Whether appellant sentenced on erroneous facts - Whether total effective sentence infringed the first limb of the totality principle
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)(a)
Misuse of Drugs Act 1981 (WA), s 6(1)(c), s 32A, s 33(2)(a), s 34(1)(b)
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bui v The State of Western Australia [2014] WASCA 168
Delovski v The Queen [2002] WASCA 88
Galbraith v The State of Western Australia [2011] WASCA 70
Monument v The State of Western Australia [2007] WASCA 239
Neumann v The State of Western Australia [2013] WASCA 70
Pham v The State of Western Australia [2011] WASCA 244
Roffey v The State of Western Australia [2007] WASCA 246
Tema v The State of Western Australia [2011] WASCA 41; (2011) 206 A Crim R 104
The State of Western Australia v Toothill [2007] WASCA 236
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
Wilson v The State of Western Australia [2010] WASCA 82
1 BUSS JA: I agree with Mazza JA.
2 MAZZA JA: This is an application for leave to appeal against sentence.
3 The appellant was convicted after his pleas of guilty of five counts of selling a prohibited drug, namely methylamphetamine, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA), and one count of conspiracy to sell a prohibited drug, namely methylamphetamine, contrary to s 6(1)(c), read together with s 33(2)(a) and s 34(1)(b) of the Misuse of Drugs Act.
4 On 23 May 2014, Sweeney DCJ imposed a total effective sentence of 9 years' immediate imprisonment with eligibility for parole, backdated to commence on 3 February 2014. The appellant was also declared to be a drug trafficker pursuant to s 32A of the Misuse of Drugs Act.
5 The details of the individual sentences that were imposed are as follows:
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The facts of the offending
6 The facts of the offending were not in dispute before the learned sentencing judge, who summarised them as follows:
[I]n November 2012 the East Metropolitan District Crime Team commenced an investigation known as Operation Mamina [sic] to investigate the drug activities of both you and then a person by the name of John Sailor [sic: Psaila]. Telephones were intercepted and an undercover operative was employed to engage in drug deals with you.
In relation to count 1, a sale, you sold the undercover officer 14 grams of methylamphetamine for $8,000 and when analysed, the drug weighed 13.8 grams with a purity of 61 per cent.
In relation to count 2, you sold 42 grams of methylamphetamine to the undercover officer for $24,000 and when analysed, the drug was in two separate lots, 12.5 grams at a purity of 61 per cent, and 27.6 grams at a purity of 67 per cent.
In relation to count 3, you had arranged with the undercover officer to sell him [112] grams of methylamphetamine for $66,000 and over a period of about two weeks you attempted to source the methylamphetamine, but in the end were unable to do so and you contacted him and advised him you couldn't supply those drugs. That's why count 3 is charged as a conspiracy.
In relation to count 4, you sold 70 grams of methylamphetamine to the undercover officer for $40,000 and when analysed, the drug weighed 69.4 grams with a purity of 69 per cent.
In relation to count 5, you sold 42 grams of methylamphetamine to the undercover officer for $24,000 and when analysed that drug weighed 41.7 grams with a purity of approximately 44 per cent.
Finally, in relation to count 6, you sold 154 grams of methylamphetamine to the undercover officer for $88,000 and when analysed the drug weighed 149.4 grams at a purity which varied from six to 46 per cent respectively. That money from that last transaction was seized and that, of course, left you in debt to your supplier and your counsel has told me that that is the reason why you then attempted to further deal with the undercover officer.
Leaving aside the 112 grams of which you tried to source but couldn't, you sold the undercover officer a total of 314.4 grams of the drug for a total sum of $184,000. Had you been successful in selling the 112 grams of methylamphetamine at $66,000, that raises those totals to dealing in a total of 426.4 grams of the drug for a total amount of $250,000. Those transactions took place over the period 6 December 2012 to 21 March 2013, so about a three and a half month period (sentencing ts 2 - 3, 23 May 2014).
Findings as to the appellant's motivation for his offending
7 Her Honour made two findings as to why the appellant committed the offences.
8 First, at the time, the appellant was having difficulties paying for basic living expenses for himself and his two dependent children. Second, while in this financially vulnerable state, the appellant was approached by an old associate, who offered him the opportunity to make money by selling methylamphetamine. These findings were consistent with what:
(a) the appellant told the author of the pre-sentence report; and
(b) the appellant's counsel told the learned sentencing judge.
The appellant's antecedents
9 The appellant was 49 years of age at the time he was sentenced. He has four children from a marriage and a subsequent de facto relationship. The appellant and his wife separated approximately 10 years ago, in part because of her illicit drug use. Paradoxically, in the hope of reconciling with his wife, he began using methylamphetamine. He became addicted to the drug. He claimed to have ceased using amphetamines in 2012. It was unclear to the learned sentencing judge whether this was before, or as a result of, his arrest.
10 After the appellant's separation from his wife, he became the full-time parent for their two children who were, at the time he was sentenced, aged 14 and 15 years. Prior to this time, the appellant had a generally stable work history. However, upon taking responsibility for his children, he relied upon the family tax benefit and found it difficult to make ends meet.
11 Before 2007, the appellant had no criminal record to speak of. However, since 2007 he has been convicted of more than 20 offences, including for various drug, dishonesty and driving offences. Of particular relevance to this case is that, on 26 November 2007, the appellant was convicted in the District Court of an attempted manufacture of methylamphetamine, for which he was imprisoned for 2 years, conditionally suspended for 2 years.
The sentencing remarks
12 As I have already mentioned, the learned sentencing judge accepted that the appellant's motivation for committing the offences was his financial difficulties. Her Honour noted that the appellant was not 'living the high life'. Nevertheless, her Honour found that the appellant was dealing in drugs for financial gain. The learned sentencing judge characterised the appellant's role as being 'not at the top of the hierarchy'. Rather, and by reason of him dealing directly with the customer, the appellant was 'critical to this operation of selling substantial quantities of drugs' (ts 4). Her Honour noted that, apart from some of the drug sold in respect of count 6, the offences of selling methylamphetamine involved purities which were 'generally all [of] good quality' (ts 5).
13 The learned sentencing judge found that, given the appellant's criminal history, and in particular, his prior conviction for attempting to manufacture methylamphetamine, his offending was not out of character (ts 5).
14 The learned sentencing judge acknowledged that the appellant had been candid with the author of the pre-sentence report and that he had apparently taken full responsibility for his offending. Her Honour acknowledged his early pleas of guilty and gave the maximum discount of 25% pursuant to s 9AA of the Sentencing Act 1995 (WA). Her Honour emphasised the sentencing objectives of personal and general deterrence. Her Honour expressly considered and applied the totality principle.
The proposed grounds of appeal
15 The appellant represented himself before this court. There are two proposed grounds of appeal.
16 Proposed ground 1 alleges that a miscarriage of justice occurred because the appellant was sentenced on erroneous facts. Specifically, the appellant asserts that, rather than being approached by an 'old friend' to sell the drug, he was, in fact, approached by an undercover police officer to do so (appeal ts 11 - 12). Proposed ground 2 alleges, in substance, that the total effective sentence infringed the first limb of the totality principle.
The general legal principles
17 The general legal principles which apply to this application were succinctly and correctly described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. There is no need to repeat them.
Proposed ground 1 - was the appellant sentenced on erroneous facts?
18 The appellant asserted that, at the time of the offending, he was 'in dire straits' and the opportunity to sell the drug was 'waved under [his] nose' by an undercover police officer (appeal ts 11). He said in oral submissions that his lawyer incorrectly submitted to the learned sentencing judge that he (the appellant) had been approached by an 'old friend' to sell the drug. When it was pointed out to him that his counsel's submission on this point was consistent with what had been written in the pre-sentence report, the appellant suggested that the author of the report had 'got things a little bit twisted somehow' (appeal ts 15).
19 The assertions that the appellant makes in support of his proposed ground 1 are contrary not only to what he apparently told the author of the pre-sentence report, but also to the submissions made by his own counsel at first instance. They are not evidence and are completely unsupported. In these circumstances, they cannot be accepted.
20 In any event, even if the appellant had not been approached by an 'old friend' to sell the drug and the opportunity to sell the drug was provided by an undercover police officer, this fact would not have materially affected the sentences imposed upon the appellant. On the admitted facts, the appellant persistently engaged in the selling of significant quantities of methylamphetamine and conspired with another to sell more of the drug. Such conduct was all in a bid to obtain a commercial gain, albeit to 'make ends meet'. Whether the appellant was encouraged to do so by an undercover police officer or by a former associate makes no material difference to these facts: the appellant willingly engaged in the offending, knowing that what he was doing was illegal and wrong. Put another way, the appellant's criminal culpability would not materially be reduced, even if the situation was as the appellant now contends. No different sentence should have been imposed: s 31(4)(a) Criminal Appeals Act 2004 (WA).
21 Proposed ground 1 has no reasonable prospect of succeeding.
Proposed ground 2 - did the total effective sentence infringe the first limb of the totality principle?
22 A generally accepted statement of the totality principle is to be found in Roffey v The State of Western Australia [2007] WASCA 246 [24]. The first limb of the totality principle provides that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety, and having regard to all relevant sentencing factors, facts and circumstances of the particular case, including those referable to the offender personally, and the total effective sentences imposed in comparable cases.
23 The appellant's primary submission in support of his proposed ground 2 is that the total effective sentence that was imposed upon him was excessive when compared with sentences imposed upon other offenders in allegedly comparable cases, particularly having regard to the appellant's personal circumstances and his early pleas of guilty. In support of this ground, the appellant cites a number of other cases: Delovski v The Queen [2002] WASCA 88; Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107; The State of Western Australia v Toothill [2007] WASCA 236; Monument v The State of Western Australia [2007] WASCA 239; Tema v The State of Western Australia [2011] WASCA 41; (2011) 206 A Crim R 104; Galbraith v The State of Western Australia [2011] WASCA 70 and Pham v The State of Western Australia [2011] WASCA 244.
24 The maximum penalty for selling methylamphetamine is 25 years' imprisonment and/or a fine of $100,000, and for conspiracy to sell methylamphetamine, 20 years' imprisonment and/or a fine of $75,000.
25 The general sentencing principles with respect to the offences committed by the appellant are well known. The primary sentencing objectives are appropriate punishment and personal and general deterrence. While the weight and purity of the drugs in question are, generally, not the chief factors to be taken into account in fixing a sentence, they are matters of importance. Other matters to be taken into account include the nature and level of the offender's participation in the offences, whether within a particular organisation or generally, and whether the offences were committed for commercial gain. Matters personal to an offender, while not irrelevant, will almost always be subsidiary considerations: Neumann v The State of Western Australia [2013] WASCA 70 [26] (Buss JA; McLure P & Pullin JA agreeing).
26 It is relevant to the assessment of whether there has been an infringement of the totality principle to consider the range of sentences customarily imposed in comparable cases. These cases provide a yardstick against which the total effective sentence imposed in a particular case can be measured. Regard may also be had to such cases to ensure broad consistency in the application of the totality principle. Sentences imposed in other cases do not, however, mark the limits of a sound exercise of the sentencing discretion. The range of sentences customarily imposed is but one of the factors to be taken into account when deciding whether there has been an infringement of the totality principle. In the end, each case must be judged on its own facts and circumstances.
27 The appellant committed six serious drug offences over a period of approximately 3 1/2 months. The offending was repeated and persistent. As the learned sentencing judge observed, the five sales involved a total of 314.4 g of mostly good-quality methylamphetamine, which realised a total sum of $184,000. The conspiracy concerned 112 g at an agreed price of $66,000. Having regard to the quantity and quality of the drug sold by the appellant, it is clear that, although the appellant was not at the top of the drug hierarchy, he was the person who dealt directly with the customers and must have been trusted by those above him.
28 While the appellant's motivation for his offending was to pay for his living expenses, the fact remains that he offended for commercial gain. The appellant's personal circumstances were unfavourable. His criminal history, particularly his conviction for attempting to manufacture methylamphetamine, accentuated the need for personal deterrence in this case.
29 I have had regard to the cases referred to by the appellant. I have also had regard to the recent case of Bui v The State of Western Australia [2014] WASCA 168 and to the decisions referred to by Hall J in that case at [32] - [39]. Upon my analysis of the comparable cases, and bearing in mind the distinctions between them and the present case, I do not regard the total effective sentence imposed in the present case as being outside of the range of sentences customarily imposed.
30 Having regard to all of the circumstances, the total effective sentence imposed upon the appellant bore a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, including those referable to him personally.
31 Proposed ground 2 has no reasonable prospect of succeeding.
Conclusion and orders
32 Neither of the proposed grounds of appeal has a reasonable prospect of succeeding. Leave to appeal must be refused in relation to each proposed ground. The appeal must be taken to be dismissed.
33 The orders that I would make are as follows:
1. Leave to appeal is refused.
2. The appeal is dismissed.
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