Leckie v The State of Western Australia

[2018] WASCA 91

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   LECKIE -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 91

CORAM:   MAZZA JA

MITCHELL JA

PRITCHARD J

HEARD:   21 MAY 2018

DELIVERED          :   12 JUNE 2018

FILE NO/S:   CACR 202 of 2017

BETWEEN:   JASON MICHAEL LECKIE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   SWEENEY DCJ

File Number             :   IND 1050 of 2016

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted on plea of guilty of possession and attempted possession of a prohibited drug with intent to sell or supply - Manifest excess - Totality principle - Turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA) s 6(1)(a), s 33(1)

Result:

Leave to appeal refused
Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant	:	Mr A J Robson
Respondent	:	Mr B M Murray

Solicitors:

Appellant	:	Legal Aid - Criminal Law Division
Respondent	:	Director of Public Prosecutions for Western Australia

Case(s) referred to in decision(s):

Apkarian v The State of Western Australia [2015] WASCA 67

Burton v The State of Western Australia [2010] WASCA 192

Davies v The State of Western Australia [2015] WASCA 14

Fenton v The State of Western Australia [2015] WASCA 255

Franklin v The State of Western Australia [2017] WASCA 102

Guler v The State of Western Australia [2014] WASCA 83

Ho v The State of Western Australia [2011] WASCA 108

Hughes v The State of Western Australia [2015] WASCA 164; (2015) 299 FLR 197

Jenkin v The State of Western Australia [2014] WASCA 226

Jneid v The State of Western Australia [2018] WASCA 67

Lynch v The State of Western Australia [2011] WASCA 243

Maric v The State of Western Australia [2015] WASCA 190

MGM v The State of Western Australia [2012] WASCA 24

Ness v The State of Western Australia (No 2) [2013] WASCA 56

Pepper v The State of Western Australia [2005] WASCA 177; (2005) 30 WAR 447

RP v The State of Western Australia [2010] WASCA 75

Salkilld v The State of Western Australia [2017] WASCA 168

Samuels v The State of Western Australia (No 2) [2006] WASCA 222

Sathitpittayayudh v The State of Western Australia [2015] WASCA 152

Stokes v The State of Western Australia [2016] WASCA 87

The State of Western Australia v Andela [2006] WASCA 77

The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198

The State of Western Australia v Charles [2016] WASCA 108

The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302

The State of Western Australia v Littlefair [2013] WASCA 177

The State of Western Australia v Saxild [2008] WASCA 156

Truscott v The State of Western Australia [2016] WASCA 58

TXT v The State of Western Australia [2012] WASCA 28; (2012) 220 A Crim R 266

Waldron v The State of Western Australia [2010] WASCA 63

Zohdy v The State of Western Australia [2014] WASCA 141

JUDGMENT OF THE COURT:

Summary

1. The appellant was convicted on his plea of guilty of:

   (1)Attempting to possess a prohibited drug (MDA) with intent to sell or supply it to another; contrary to s 6(1)(a) and s 33(1) of the Misuse of Drugs Act 1981 (WA).

   (2)Possession of a prohibited drug (MDMA) with that intent; contrary to s 6(1)(a) of that Act.

2. The appellant was sentenced to 3 years' immediate imprisonment in respect of count 1 and 12 months' immediate imprisonment in respect of count 2.  The total effective sentence was 4 years' immediate imprisonment.  The appellant was made eligible for parole.

3. The appellant now appeals against these sentences, on the ground that the individual sentences were manifestly excessive and the total effective sentence infringed the first limb of the totality principle.  For the following reasons leave to appeal on that ground should be refused and the appeal dismissed.

Circumstances of offending

1. On 17 November 2015, police conducting an examination of mail at Australia Post's Perth Airport facility located an Express Post envelope addressed to a named person at an address in Victoria Park.  The Express Post envelope was subsequently found to contain a total of 314 tablets of 3,4-Methylenedioxyamphetamine (MDA), weighing a total of 99.2 grams, inside three resealable bags.  The tablets contained between 8 - 12% MDA.  Although of poor quality, the tablets could be sold to customers in nightclubs or at music festivals for $30 each.  On that basis they were worth $9,420.  Sold at $20 each the tablets were worth $6,280.

2. Police seized the Express Post envelope and replaced the MDA with an inert substance.  The reconstructed envelope was conveyed to the Victoria Park address at about 12.11 pm on 18 November 2015.  The appellant accepted the Express Post envelope at the door of the Victoria Park address, and acknowledged it was intended for him.

3. Shortly afterwards, police executed a search warrant at the Victoria Park address.  The Express Post envelope was located partially opened and concealed under a cushion on the sofa in the sitting room.

4. Other items located during the search of the Victoria Park address included a number of unused resealable bags, a list of drug values by weight (up to and including an ounce (approximately 28 g)) and a document which identified codes used by the appellant to describe certain drugs. 

5. Text messages located on the appellant's mobile phone also evidenced the sale of prohibited drugs.  The appellant was advertising pills at differing prices depending on whether the buyer wanted a single pill, 10 or 100.

6. The sentencing judge was satisfied that the appellant was selling MDA on a commercial basis for profit.

7. At sentencing, the appellant contended that he had not expected the Express Post envelope to contain 314 tablets, and had placed an order for only $500 worth of capsules.  The appellant contended that the Express Post envelope contained more MDA than he had ordered, and he believed that his supplier had set him up.  After a trial of the issues, the sentencing judge rejected this explanation. 

8. The sentencing judge said that material on the appellant's phone constituted damning evidence of the appellant's involvement in the drug world.  The sentencing judge regarded the coincidence between the appellant offering hundreds of pills for sale via his phone and his receipt of hundreds of pills two days later as leading to the irresistible inference that the appellant was expecting hundreds of pills to arrive.

9. During the execution of the search warrant, in the bedside drawer police located 2.43 grams of 3,4‑methylenedioxy‑n, alpha‑dimethylphenylethylamine (MDMA), commonly known as ecstasy, in capsule form.  There were 24 capsules in total, distributed between two resealable bags.  The capsules contained 85% MDMA.  While the appellant would have used a reasonable portion of the MDMA himself, they were also available to be sold and the material on the appellant's phone made it plain that he was selling them.

10. The messages on the appellant's phone showed that he was dealing regularly in 'grams, eight-balls and double eight-balls' and hoping to break into bigger deals.   At one stage, the appellant had $19,000 owing to him 'out in the streets' and had the standing to 'tick up' $13,000 worth of drugs himself.  That showed that the appellant's role in relation to the drugs was that of a person selling for profit, not just to fund a drug habit.

Personal circumstances

1. The appellant was 28 years old at the time of sentencing.  He had a relatively normal and stable childhood.

2. The appellant had a brief traffic related criminal record in Western Australia, and a relatively minor criminal record in the Northern Territory and Queensland.  The most serious offences comprised breaches of a violence restraining order and forgery.  The appellant had previously performed poorly under supervision.

3. The appellant had joined the Australian Army at age 18.  After four to five years in the Army, he had been accepted into the Special Forces, but lost that opportunity after a drunken incident when the appellant slapped a police officer.  The appellant was subsequently absent without leave, and was eventually dishonourably discharged from the army.  Since that time he had worked as a personal trainer and labourer in the building industry, and had participated in heavy gambling.

4. The appellant was involved in a bitter family law dispute with a former partner, who left him before the birth of their child.  The Family Court eventually denied the appellant access to his daughter.  The appellant moved from Queensland to Perth in April 2015, in order to distance himself from that dispute.

5. The appellant had a history of excessive drinking.  He started using MDMA, taking about 10 - 15 pills a week until he was arrested.  He had also suffered from depression.

6. The sentencing judge found that the appellant's remorse and regret for his behaviour was more in relation to the consequences of getting caught.  The appellant did not demonstrate an understanding of the impact of drug dealing on the wider community as a whole.

Sentencing judge's approach

1. The sentencing judge referred to the circumstances of the appellant's offending and his personal circumstances.  Her Honour identified, as a mitigating factor, the appellant's plea of guilty to the offences at the first reasonable opportunity.  The sentencing judge observed that, while the case against the appellant was overwhelming, his plea amounted to an acceptance of responsibility and a willingness to let justice take its course.

2. The sentencing judge then observed:[1]

   Following that however, you took this matter to a trial of the issues notwithstanding my preliminary comments to your counsel that I would want to see all of the material the State had in relation to the SMSs. I’ve also found you gave false evidence and your expressions of general resentment during that evidence don't sit well with an acceptance of responsibility on your part.

   I do take into account that at least the State was able to tender all of its materials by consent without the need for detectives to attend to testify and obviously you agreed to that but schedules of SMSs had to be put together and a day in court was used up all to fail to prove an implausible proposition.

   The utilitarian value of the plea therefore to the State was reduced. The plea is still worth something.

   [1] Sentencing ts 6 - 7.

3. Taking all of those matters into account, the sentencing judge reduced the head sentences under s 9AA of the Sentencing Act 1995 (WA) by 15%.

4. In relation to the low purity of the MDA, the sentencing judge observed:[2]

   I can take into account the pretty low quality of the large batch of pills in the sense that a lower quality is less likely to do harm to the end users but the lower quality has nothing to do with you hoping to cause less harm. In fact, you generally claim to be appalled that these drugs would ruin your reputation if you sold them to your valued customers but they were quite capable of being sold to undiscerning kids.

   [2] Sentencing ts 7.

5. The sentencing judge recognised that the dominant sentencing considerations in cases such as the appellant's are personal and general deterrence.[3]

   [3] Trial of issues ts 193.

6. The sentencing judge concluded that an immediate term of imprisonment was the only appropriate sentence. Her Honour then imposed the sentences noted at [2] above.

General principles

1. The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive, or that a total effective sentence infringes the totality principle, are well established:[4]

   (1)Sentencing is a discretionary exercise.  An appellate court can intervene only if the appellant demonstrates either an express or implied material error.  Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter.  Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.  Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

   (2)In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.

   (3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases. 

   (4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion.  Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence.  What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

   (5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

   (6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence.  A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts.  A relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively.  The real question is whether the total effective sentence is outside the available sentencing range.

   [4] The following statement of the general principles is taken from the judgment of the court in Salkilld v The State of Western Australia [2017] WASCA 168 [48].

Disposition

1. There is no merit in the appellant's submission that error is to be inferred from either the individual sentences or the total effective sentence imposed on him.

2. The maximum penalty for both offences with which the appellant was charged is 25 years' imprisonment and a fine of $100,000.[5]

   [5] Misuse of Drugs Act s 34(1)(aa).

3. The general principles of sentencing offenders for serious drug offences are well established.[6]  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 invariably be subsidiary considerations, but they are not irrelevant.

   [6] See, for example, Jneid v The State of Western Australia [2018] WASCA 67 [81].

4. An attempt to possess prohibited drugs with intent to sell or supply to another carries the same maximum penalty as the completed offence.  An offence of attempt is not generally to be treated as less serious than a completed offence where the only reason that the offence was not completed was the interception of the drugs by authorities and their substitution by an inert substance.

5. MDMA has been categorised as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs and in the same category as heroin and cocaine.[7]  The same may be said of MDA.

   [7] The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 [109]; Franklin v The State of Western Australia [2017] WASCA 102 [32].

6. The parties have referred to a number of cases which are said to be comparable to the present, both in relation to the individual sentences and the total effective sentence.[8]  There are some comparable features and distinguishing features between the cited cases and the present case.  Taking account of the differences in the facts and circumstances of the prior cases and the sentencing variables in those cases, both the individual sentences and the total effective sentence in the present case are broadly consistent with the sentencing patterns revealed by the prior cases.

   [8] Apkarian v The State of Western Australia [2015] WASCA 67; Burton v The State of Western Australia [2010] WASCA 192; Davies v The State of Western Australia [2015] WASCA 14; Fenton v The State of Western Australia [2015] WASCA 255; Franklin; Guler v The State of Western Australia [2014] WASCA 83; Ho v The State of Western Australia [2011] WASCA 108; Hughes v The State of Western Australia [2015] WASCA 164; (2015) 299 FLR 197; Jenkin v The State of Western Australia [2014] WASCA 226; Lynch v The State of Western Australia [2011] WASCA 243; Maric v The State of Western Australia [2015] WASCA 190; MGM v The State of Western Australia [2012] WASCA 24; Ness v The State of Western Australia (No 2) [2013] WASCA 56; RP v The State of Western Australia [2010] WASCA 75; Samuels v The State of Western Australia (No 2) [2006] WASCA 222; Sathitpittayayudh v The State of Western Australia [2015] WASCA 152; Stokes v The State of Western Australia [2016] WASCA 87; The State of Western Australia v Andela [2006] WASCA 77; The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198; The State of Western Australia v Charles [2016] WASCA 108; The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302; The State of Western Australia v Littlefair [2013] WASCA 177; The State of Western Australia v Saxild [2008] WASCA 156; Pepper v The State of Western Australia [2005] WASCA 177; (2005) 30 WAR 447;Truscott v The State of Western Australia [2016] WASCA 58; TXT v The State of Western Australia [2012] WASCA 28; (2012) 220 A Crim R 266; Waldron v The State of Western Australia [2010] WASCA 63; Zohdy v The State of Western Australia [2014] WASCA 141.

7. The appellant places particular emphasis on three of these previous decisions.[9]

   [9] Appellant's submissions, par 113.

8. The first case is Zohdy, where the 20-year-old offender, who had no previous convictions, received a total effective sentence of 2 years 6 months' immediate imprisonment following fast-track pleas to two counts of selling MDMA.  The first count (for which she received an individual sentence of 12 months' imprisonment) related to the sale of 260 pills to another person for $5,200.  The second count (for which she received an individual sentence of 2 years 6 months' imprisonment to be served concurrently) related to the supply of 1,000 pills for $17,000.  The supply of the drugs to the offender and the offender’s sale of them to a third person was arranged by the offender's husband. 

9. The sentences imposed in Zohdy are broadly consistent with the present when account is taken of:

   (1)the different roles played by the offender (who acted at the direction of her husband) and the appellant (who was operating his own drug-dealing enterprise);

   (2)the offender was given a 25% discount for a plea of guilty (as opposed to the appellant's 15% discount) under s 9AA of the Sentencing Act; and

   (3)additional mitigating factors in that case (youth, immaturity and the absence of a prior record).

1. The second case on which the appellant particularly relies is Baldini.That was a State appeal against suspended sentences of imprisonment imposed on one count of selling MDMA (65 tablets), one count of possessing MDMA with intent to sell or supply (490 tablets) and one count of being in possession of cash ($3,800) that was reasonably suspected to be unlawfully obtained. The offender received concurrent sentences of 12 months' imprisonment for the sale offence, 18 months' imprisonment for the possession offence and 3 months' imprisonment for the cash offence. The offender was 19 years old, had no prior criminal record, had taken positive steps towards rehabilitation and received a 25% discount under s 9AA for a plea of guilty at the first reasonable opportunity. The offender cooperated with police, volunteering an admission about the sale (which resulted in the detection of that offence) and advising the police of his possession of the other tablets before they were located in a search of his house. The offender was conducting a commercial street dealing enterprise. This court held that the sentencing judge erred in suspending the sentences, but held that the length of the sentences imposed for the individual drug offences was not manifestly inadequate. However, the sentence for the possession offence was described as being 'at the very lenient end of the range of sentences imposed in closely comparable cases'.[10]  The court imposed a total effective sentence of 18 months' immediate imprisonment.

   [10] Baldini [38].

2. In comparing the sentences imposed in Baldini with those imposed on the appellant, it is relevant to bear in mind the following distinguishing features:

   (1)the offender was given a 25% discount for a plea of guilty (as opposed to the appellant's 15% discount) under s 9AA of the Sentencing Act; and

   (2)additional mitigating factors in that case (youth, immaturity, the absence of a prior record, genuine remorse and steps towards rehabilitation and cooperation with police).

   It may be accepted that, even accounting for those distinguishing features, the sentences in Baldini were low in comparison to the present case.  However, that comparison is to be undertaken in the context where the sentence in Baldini was expressed to be lenient. 

3. The third case on which the appellant places particular reliance is Davies. In that case the offender pleaded guilty just prior to trial to an offence of supplying 940 tablets (weighing a total of 246g with a purity of between 10% - 16%) to a person in Perth (the offender resided in Melbourne at the time of the offending). The offender engaged others to arrange and make a delivery, as part of an ongoing commercial operation. The offender was 41 years old, with no relevant prior criminal record and (apart from his course of drug dealing) of good character. He received a 10% discount under s 9AA of the Sentencing Act for his late plea of guilty.  Leave to appeal against a sentence of 3 years' immediate imprisonment was refused by this court.  The utility of this case is limited by the fact that the grounds of appeal related to parity and the sentencing judge’s finding that the plea of guilty was not entered at the first reasonable opportunity.  The sentence in Davies was one year less than that imposed on the appellant in respect of a somewhat greater quantity of MDMA.  However, bearing in mind that there is no single correct sentence, the sentences imposed in the two cases may be regarded as broadly consistent.

4. In the present case, the seriousness of the appellant's offending was elevated by the fact that it was part of an ongoing busy commercial operation in respect of both the MDA and the MDMA.  While the sentencing judge appropriately took account of the low purity of the MDA which the appellant attempted to possess, the appellant had no way of knowing the purity before taking possession of the tablets.  There was little to be had by way of substantial mitigation in the appellant's antecedents.

5. When regard is had to all of the circumstances of the offence, the personal circumstances of the appellant, all relevant sentencing principles and the customary patterns of sentencing, it cannot be concluded that either the individual sentences or the total effective sentence imposed on the appellant were unreasonable or plainly unjust.  Inferred error has not arguably been established in this case.

Orders

1. For the above reasons, leave to appeal on the sole ground of appeal should be refused and the appeal should be dismissed.

   I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

   ET
   RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE MITCHELL

   12 JUNE 2018