Lenton v The State of Western Australia - [2017] WASCA 224

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LENTON -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 224

CORAM: BUSS P
BEECH JA
HALL J

HEARD: 25 AUGUST 2017

DELIVERED : 4 DECEMBER 2017

FILE NO/S: CACR 168 of 2016

BETWEEN: HEATH ANDREW LENTON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STAUDE DCJ
File No  :IND 1410 of 2015

Catchwords:

Criminal law - Appeal against sentence - Reckless driving to escape pursuit by police - Possession of a prohibited drug (MDMA) - Possession of a prohibited drug (methylamphetamine) with intent to sell or supply - Possession of a prohibited drug (cocaine) with intent to sell or supply - Possession of a prohibited drug (MDA) - Aggravated possession of a firearm - Failure to comply with data access order -Total effective sentence of 8 years' imprisonment - Whether sentence offends both limbs of totality principle

Legislation:

Nil

Result:

Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Ms A Rogers
Respondent: Mr R G Wilson

Solicitors:

Appellant: Abigail Rogers Barristers & Solicitors
Respondent: Director of Public Prosecutions (WA)

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

Doherty v The State of Western Australia [2014] WASCA 142
Huynh v The State of Western Australia [2012] WASCA 8
Karakuyu v The State of Western Australia [2012] WASCA 75
Le v The State of Western Australia [2014] WASCA 120
Panetta v The State of Western Australia [2013] WASCA 234
Pitassi v The State of Western Australia [2014] WASCA 231
R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554
Ricciardi v The State of Western Australia [2012] WASCA 106
Rinaldi v The State of Western Australia [2017] WASCA 48
Sakhie v The State of Western Australia [2017] WASCA 103
Salkilld v The State of Western Australia [2017] WASCA 168
Stagno v The State of Western Australia [2013] WASCA 166
Stone v The State of Western Australia [2010] WASCA 80
The State of Western Australia v Hunter [2014] WASCA 87
Tran v The State of Western Australia [2016] WASCA 37

JUDGMENT OF THE COURT: This is an appeal against sentence.
The appellant was convicted on his pleas of guilty of seven counts on an indictment. He was sentenced to a total effective sentence of 8 years' imprisonment. The individual sentences are set out in the following table:

Count	Offence	Maximum penalty	Sentence
1	Reckless driving to escape pursuit by police - s 60(4) Road Traffic Act 1974 (WA)	5 years' imprisonment	12 months' imprisonment cumulative
2	Possession of a prohibited drug (MDMA) - s 6(2) Misuse of Drugs Act 1981 (WA)	2 years' imprisonment	1 month imprisonment concurrent
3	Possession of a prohibited drug (methylamphetamine) with intent to sell or supply - s 6(1)(a) Misuse of Drugs Act 1981 (WA)	25 years' imprisonment	6 years' imprisonment (head sentence)
4	Possession of a prohibited drug (cocaine) with intent to sell or supply - s 6(1)(a) Misuse of Drugs Act 1981 (WA)	25 years' imprisonment	6 months' imprisonment concurrent
5	Possession of a prohibited drug (MDA) - s 6(2) Misuse of Drugs Act 1981 (WA)	2 years' imprisonment	1 month imprisonment concurrent
6	Aggravated possession of a firearm - s 19(1)(c) and (1ab) Firearms Act 1973 (WA)	14 years' imprisonment	12 months' imprisonment cumulative
7	Failure to comply with a data access order - s 61(2) Criminal Investigation Act2006 (WA)	5 years' imprisonment	6 months' imprisonment concurrent

Counts 2 and 5 were charged in the indictment as offences of possession of prohibited drugs with intent to sell or supply. However, the prosecution accepted pleas of guilty to simple possession on these counts.
The appellant contends that the total effective sentence breached both limbs of the totality principle; that is, it is submitted that the total sentence is disproportionate to the appellant's overall criminality and that it is crushing in its effect. Leave to appeal was granted by Mazza JA on 5 February 2017.
For the reasons that follow we would dismiss the appeal.

The facts

The facts stated by the prosecutor at the sentencing proceedings were admitted. The facts can be summarised as follows.
At approximately 10.55 pm on Monday 15 September 2014, the appellant was driving a motorcycle north‑east on Lord Street in East Perth. He stopped at traffic lights at the intersection with Wellington Street, next to a marked police vehicle (ts 103).
The police officers in the police vehicle saw that the numberplate at the back of the appellant's motorcycle was turned at an angle. They followed the motorcycle for a short distance and then activated the emergency lights to signal the appellant to pull over. He did not do so. In fact, he accelerated and continued to flee from the police after the siren in their vehicle was activated (ts 103).
The pursuit continued for several kilometres. The appellant ran two red traffic lights and travelled at speeds in excess of 80 km per hour. The pursuit continued to Victoria Park where a second, unmarked police vehicle pulled in front of the appellant at the intersection of Shepperton Street and Duncan Street. The unmarked vehicle had emergency lights and sirens activated (ts 104).
The appellant tried to evade the second vehicle by reversing his motorcycle, turning right and accelerating away. He lost control as his motorcycle went over a median strip and he was thrown off (ts 104). His reckless driving to escape pursuit by police was the subject of count 1 on the indictment.
The appellant was apprehended and searched by police. He was in possession of a backpack and a satchel. In the satchel police found a number of clipseal bags containing various quantities of MDMA. There were three capsules containing 0.61 g of MDMA powder, three MDMA tablets weighing 0.57 g and two tablets with some fragments of MDMA weighing 0.91 g. The total weight of the MDMA was 2.09 g. This quantity of drugs was the subject of count 2 on the indictment (ts 104).
In the backpack police found a red container which contained various quantities of methylamphetamine as follows:
•27.7 g at 49% purity
•27.4 g at 48% purity
•2.55 g at 37% purity
•24.9 g at 52% purity
There were also some small quantities of methylamphetamine, being 0.97 g and 0.63 g, for which the purity was not determined. The total weight of the methylamphetamine was 84.15 g. This quantity of drug was the subject of count 3 on the indictment (ts 104).
Also found in the backpack was a clipseal bag containing 1.98 g of cocaine. This was the subject of count 4 of the indictment (ts 105).
Also in the satchel police located two tablets of MDA. Those tablets weighed 0.5 g in total. That drug was the subject of count 5 on the indictment (ts 105).
In the backpack the police also found a firearm, being a Smith and Wesson .32 calibre five‑shot revolver. The gun contained one round of live ammunition. The firearm was not licensed. The appellant did not hold a licence or permit to possess a firearm and has never done so. Possession of this firearm was an aggravated offence because the appellant was carrying both the gun and a prohibited drug, namely the methylamphetamine, at the same time. Possession of the firearm was the subject of count 6 on the indictment (ts 105).
In addition to the items referred to, the police also located the following items in the backpack: the appellant's wallet containing $767 in cash, a further $4,000 in cash, a flick knife, three mobile telephones and two tick lists. In the satchel police also found the following items: a set of electronic scales, a mobile telephone, a laptop computer and two notebooks each containing tick lists. The tick lists were lists of names, amounts of money owed (including amounts in excess of $100,000) and references to pounds and ounces (lb and oz) (prosecution brief, pages 76 ‑ 83)
The four mobile telephones and the laptop were PIN or password locked. On 17 October 2014, the police served the appellant with a data access order requiring him to provide them with the access codes for those devices. The order required him to provide the codes on or before 18 October 2014. He did not do so. His failure to comply with the data access order was the subject of count 7 on the indictment (ts 105).

District Court proceedings

The appellant originally entered pleas of not guilty to the charges and the matter was set down for a 10‑day trial. This was later reduced to five days to commence on 8 August 2016. Applications by the appellant to adjourn the trial were made on 7 July 2016 and 19 July 2016. Both of those applications were dismissed.
The appellant dismissed his lawyers shortly before the trial was due to commence. On the first day of the trial his newly appointed defence counsel was granted a short adjournment to take instructions. The appellant then entered pleas of guilty to the charges on 9 August 2016. As noted earlier, the prosecution accepted pleas of guilty of simple possession in respect of counts 2 and 5.
In respect of counts 3 and 4, the appellant pleaded guilty to the possession of the methylamphetamine and cocaine with intent to sell or supply, but maintained that his role was confined to having an intention to supply those drugs on behalf of another person. He claimed that the drugs and tick lists belonged to another person who had asked him to deliver them. He denied that he had any expectation of financial reward. This dispute was listed for a trial of issues on 11 August 2016.
On 11 August 2016 the prosecutor stated that he would be relying on evidence that one of the tick lists found in the backpack had been located in the appellant's wallet. This was said to support a conclusion that the appellant was personally engaged in commercial drug dealing and was not a mere courier. In light of this evidence the appellant accepted that he should be sentenced on the basis that he intended to sell at least some of the methylamphetamine and that he was 'engaged in the commercial sale of methylamphetamine' (ts 122), though he continued to maintain that another person was also involved. In regard to the cocaine the appellant maintained that the relatively small amount of this drug would have been supplied to the other person that he was engaged in the sale of drugs with and that they would have used the cocaine together (ts 122). These concessions were accepted by the State and the trial of issues did not proceed.
The appellant's counsel then sought reports from a psychologist and a psychiatrist and the matter was adjourned to 19 October 2016 for sentencing.

The appellant's antecedents

The appellant was 47 at the time of sentencing. He is divorced and has no dependents (ts 157).
The appellant's parents separated when he was 2 years old and for several years his childhood was unsettled. He lived with his mother and attended numerous schools due to family relocations. When he was 9 his mother formed a new relationship. Despite some early difficulties with his stepfather, that relationship improved over time. He continues to have a close relationship with his mother, stepfather and two siblings, who remain supportive of him (ts 156).
The appellant completed year 12 and commenced university but left after a year. He has been employed as a sale representative and as a rigger. Prior to being imprisoned for the present offences he had been working intermittently in a family business as a service technician (ts 156 ‑ 157).
The appellant has a long criminal history which includes many drug‑related offences. On 12 January 2011 he was sentenced to a total effective sentence of 12 months' imprisonment for numerous offences, which included multiple offences of offering to sell or supply methylamphetamines, possession of amphetamines with intent to sell or supply and sale of amphetamines. On 26 June 2009 he was sentenced to 3 years and 4 months' imprisonment for offences of possessing an unlicensed firearm and possessing methylamphetamine with intent to sell or supply. On 21 July 2009 further concurrent sentences of imprisonment were imposed for offences which included aggravated possession of a firearm and multiple offences of possession of prohibited drugs. The record also includes numerous offences of dishonesty, including forgery and fraud.
The appellant has a long history of drug abuse. He commenced using methylamphetamine and cocaine at age 29. There have been periods of abstinence, in particular after being released from prison. However, on each occasion he has gradually relapsed into drug use. He has never attended any significant programs in the community in relation to substance abuse.
The psychologist reported that the appellant presented as anxious. He reported an incident when he was aged 39 of being apprehended and assaulted by police. He said that he had received a fractured skull as a result of this incident. However, various investigations of the conduct of the police involved had found no wrongdoing. He claimed that this had caused him to become very fearful of the police and that he was diagnosed with post‑traumatic stress disorder (PTSD) (psychological report dated 12 September 2016, pages 2 ‑ 4). This diagnosis was confirmed by a privately commissioned psychological report.
The court‑appointed psychologist noted that the appellant has a tenacious and persistent history of offending. She stated that the appellant has demonstrated an entrenched behaviour pattern and ongoing negative attitudes in relation to substance abuse and supply. Whilst the appellant has had some challenges in his childhood, his involvement in substance use has prevented him from developing emotional maturity and regulation skills. He told the psychologist that the weapon was for self‑protection. The psychologist stated that the appellant does not appear to have made much effort to utilise professional assistance and has continued to use substances and involve himself with substance‑abusing networks despite previous terms of imprisonment (psychological report dated 12 September 2016, page 5).
The psychiatrist reported that there was no evidence to indicate that the appellant suffers from a serious or medically treatable mental illness. He was considered to be an unreliable historian with regard to the possible symptoms of PTSD. The psychiatrist had a degree of suspicion that the appellant was exaggerating such symptoms. He described the appellant as a recidivist offender with a history of impulsive and reckless behaviour that he tends to minimise and for which he abrogates responsibility (psychiatric report dated 13 October 2016, page 5).
There were medical reports available at sentencing showing that the appellant suffered from gastric reflux. However, he had consulted a doctor about this and was receiving medical treatment in prison.

Defence submissions on sentence

It was accepted on behalf of the appellant that his guilty pleas were entered at a very late stage and that only a small discount could be afforded. As to the trial of issues, it was submitted that it did not proceed because of late disclosure of a significant piece of evidence, namely the fact that one of the tick lists had been found in the appellant's wallet.
It was conceded that the appellant had a significant prior criminal history of drug‑related offending and a longstanding issue with substance abuse. After his last release from prison the appellant had worked in his parents' business but had relapsed into drug use.
Defence counsel submitted that the appellant's past history with police, in particular his perception that he had been wrongfully assaulted, and the hypervigilance and PTSD that he suffered, was, at least in part, a cause of his choice to flee from the police. When the sentencing judge asked whether the obvious explanation was that the appellant wanted to avoid detection of the fact that he was in possession of drugs and an unlicensed firearm, counsel accepted that was 'part of it'. She nonetheless maintained that his decision was 'informed' by the PTSD (ts 136 ‑ 137). It was not suggested that the PTSD had led to the appellant's drug use or that it mitigated any of the offending other than the reckless driving.
It was submitted that the appellant had become involved in a drug‑dealing business with a person with whom he was sharing accommodation. Whilst he knew the scale of the operation, his role was confined to being a 'courier for reward' (ts 140). He was asked by his roommate to transport the backpack. He did not expect to be compensated financially, though he did understand that he was participating in a commercial enterprise. Defence counsel did not seek to place any evidence before the sentencing judge to support these submissions and to some extent they appear to conflict with the concessions made on 11 August 2016. It was accepted that the issue as to the appellant's role had to be determined on the available evidence, being the prosecution brief and other materials tendered by the prosecution.

Prosecution's submissions on sentence

The State did not accept that the appellant's role was merely that of a courier. It was submitted that in all of the circumstances it could be inferred that the appellant, either alone or with another person, was disseminating methylamphetamine into the community for profit. The State pointed to the appellant's history, that the backpack and satchel were his (as evidenced by the fact that there were numerous prescriptions in his name contained within them), that the laptop computer had the appellant's name on it, that one of the tick lists was found in his wallet and that it could be inferred that the two notebooks and the list written on the chewing gum packet were also his tick lists. The State also pointed to the fact that the appellant was in the possession of four mobile telephones to which he had refused to provide the police access (ts 147).
The State also submitted that the reckless driving offence was aggravated by the fact that the pursuit lasted for several kilometres, the appellant ran two red lights and travelled in excess of 80 km per hour in his efforts to escape police. The State did not accept that the appellant's claim of PTSD provided any explanation for his driving. It was submitted that the obvious explanation was that the appellant was seeking to escape because he knew he was in possession of prohibited drugs and an unlicensed firearm (ts 146 ‑ 147).

Sentencing remarks

There is no claim of any express error in the sentencing judge's remarks.
Before the sentencing judge there was a dispute as to the proper characterisation of the role played by the appellant in the sale of drugs. It was accepted that the sentencing judge could make findings based on the material before him. The findings made by the sentencing judge in that regard are not disputed on this appeal.
His Honour noted that count 3 (possession of methylamphetamine with intent to sell or supply) was the most serious offence on the indictment. He referred to the fact that the appellant was found in possession of cash, tick lists, weapons, scales and four mobile telephones. Based on this evidence he concluded that the appellant was actively engaged in commercial drug dealing and was operating within a sophisticated and dangerous environment. Whilst his Honour accepted that the appellant was a user of methylamphetamine, the circumstances indicated that his involvement in dealing was at a much higher level than that of a street dealer or a person selling drugs to pay for their own consumption (ts 154 ‑ 155).
His Honour referred to the submissions made on the appellant's behalf that he was living with another person who had engaged the appellant to deliver drugs on his behalf. Whilst the precise circumstances in which the appellant came to be in possession of the drugs could not be discerned, his Honour concluded that the appellant's explanation was not cogent, particularly given the personal nature of the items found in his possession and the fact that he had admitted to carrying the firearm for his protection. His Honour also noted that use of an unlicensed firearm was a feature of the appellant's previous offending (ts 155).

His Honour accepted that the appellant had been diagnosed with PTSD and had received medication and counselling in relation to that condition. He accepted that the appellant's reaction to the request by the police to stop may have been affected by this condition. However, he said that in the totality of the circumstances he was unable to find that this had significant weight in terms of mitigation due to the appellant's history of drug dealing and the fact that the contents of the bags the appellant was carrying gave him a much more cogent reason for escaping the police (ts 153).
His Honour said that this offending was consistent with a long history of drug‑related and other criminal offending by the appellant. Whilst recognising that the appellant's record was not an aggravating factor, his Honour said that it demonstrated that the appellant had not been deterred from reoffending by previous sentences (ts 156).
As to the appellant's pleas of guilty, his Honour said that they were made at a very late stage. The trial had been fully prepared and some factual issues were not resolved until the trial of issues was abandoned. Taking this history and the strength of the prosecution case into account, his Honour allowed a 5% discount for the pleas of guilty (ts 152).
After referring to the appellant's personal circumstances and the psychological and psychiatric reports, his Honour said that for offences of this kind personal considerations are secondary to the principal objects of specific and general deterrence and protection of the community. His Honour found that it was clear from the appellant's history and the facts of this case that the appellant knew the stakes that he was playing for (ts 154).
His Honour said that the totality principle would be taken into account by making some of the sentences cumulative and others concurrent in order to arrive at a total effective sentence that was commensurate with the seriousness of the offending as a whole. He also referred to ensuring that the sentence was not crushing so as to give the appellant no hope of a useful life beyond his release. He then imposed the sentences referred to earlier.

Ground of appeal

There is a single ground of appeal. It is as follows:
It is respectfully submitted that the learned sentencing judge erred in the exercise of his sentencing discretion by imposing a sentence that offended both limbs of the totality principle. It is submitted that the total sentence imposed is disproportionate to the appellant's overall criminality as reflected in the combination of offences in respect of which the order for cumulative sentences was imposed. Further, that the aggregate sentence is 'crushing' on the appellant.
Particulars
1.1sentences customarily imposed for like offending;
1.2the appellant's pleas of guilty;
1.3the appellant's long‑standing and untreated drug addiction;
1.4the appellant's psychiatric condition;
1.5the appellant's prior good work history; and
1.6the genuine remorse demonstrated by the appellant.
It is submitted on behalf of the appellant that these circumstances warranted the imposition of a lesser aggregate term.

Relevant principles

The general principles applicable to an appeal of this nature are well established. The court cannot intervene merely because it would have exercised the sentencing discretion in a manner different to the sentencing judge. This court is only entitled to intervene if it is established that the sentencing judge erred in some material way.
A claim that a total effective sentence is disproportionate to the total criminality or is crushing is an allegation of implied error. There is no suggestion on this appeal that any of the factual findings made by the sentencing judge are in error. Rather, the submission is that error can be inferred because the total effective sentence imposed is manifestly unreasonable or unjust.
The first limb of the totality principle requires that the total effective sentence bears a proper relationship to the overall criminality involved in all of the relevant offences viewed in their entirety and after having regard to the circumstances of the case, including those referable to the offender personally. A claim that the total effective sentence is in breach of the first limb of the totality principle requires the court to examine the seriousness of the appellant's offending, any mitigating factors and any comparable cases. However, the limits on the utility of comparing the total effective sentences in cases involving different groups of offences should be kept in mind: Panetta v The State of Western Australia [2013] WASCA 234 [39]. As will be seen, this case illustrates these limits. None of the comparable cases involved a combination of the same three types of offences: drugs; firearms; and driving; as were committed by the appellant.
The second limb of the totality principle provides that the overall sentence should not be crushing in the sense that it would destroy any reasonable expectation of a useful life after release.
In this case, the appellant placed some reliance on the fact that the first six offences occurred close in time to each other. Offences that are all part of one multi‑faceted course of criminal conduct may justify some concurrent sentences in order to ensure that the total sentence is proportionate to the offending conduct. However, wholly concurrent sentences may not reflect the total criminality and may not be appropriate. The so‑called 'one‑transaction rule' is not in fact a rule but merely a working guide to the exercise of sentencing discretion: R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554; Salkilld v The State of Western Australia [2017] WASCA 168 [84].
The maximum penalties for each of the offences are set out in the table at [ ] of these reasons. As those maximum penalties indicate, the offences the subject of counts 3 and 6 were particularly serious offences.
The major sentencing considerations for drug offences of the type committed by the appellant are general and personal deterrence. Although the weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing the sentence, it is a matter of importance. Other matters that are relevant include the nature and level of the offender's participation in drug dealing and whether the offending was committed for commercial gain. The purity of the drug is often regarded as a significant factor. Matters personal to the offender are not irrelevant, but will almost always be given reduced weight. These principles are well known: Tran v The State of Western Australia [2016] WASCA 37 [29].
The offence of possessing an unlicensed firearm in circumstances of aggravation is also one where general deterrence is a major sentencing consideration and personal circumstances play a lesser role: Stone v The State of Western Australia [2010] WASCA 80. The significance of the possession of firearms by an offender who is also involved in drug dealing was referred to in Karakuyu v The State of Western Australia [2012] WASCA 75. In that case, Mazza JA said that firearms are a common tool of the trade for drug dealers and that there is a clear need to deter those involved in the drug trade from obtaining and possessing firearms [41]. Where a firearms charge is alleged in addition to a drug offence it often attracts a cumulative penalty: Stagno v The State of Western Australia [2013] WASCA 166 [45]; Rinaldi v The State of Western Australia [2017] WASCA 48 [63] ‑ [64].

Merits of the appeal

There is no challenge to any of the individual sentences. It is not asserted that any of the individual sentences are manifestly excessive. The appeal is confined to the question of whether the total effective sentence is manifestly unreasonable or unjust.
The nub of the appellant's submission is that:
(1)because the sentence on count 3 was so high, the only appropriate exercise of discretion was to make all other sentences concurrent (appeal ts 6); and
(2)a sentence of 6 years' imprisonment was itself a proper and complete reflection of the appellant's total criminality (appeal ts 11).
For the reasons that follow, we do not accept these submissions. In short, the appellant has not demonstrated that a proper exercise of the sentencing discretion compelled acceptance of these propositions.
As to the seriousness of the appellant's conduct, he was clearly engaged in a significant commercial drug‑dealing enterprise. The quantity of drugs found in the appellant's possession, whilst not the chief sentencing factor, is nonetheless of importance. The total amount of methylamphetamines (84.15 g), the fact that it was packaged into separate quantities for the obvious purpose of sale and the purity of the drug, were all indicative of the seriousness of this conduct.
The possession of a variety of drugs and a relatively large quantity of cash together with tick lists and a firearm led to the inevitable conclusion that the appellant was playing a significant role in the sale and delivery of prohibited drugs and that this involvement had occurred in the context of a continuing commercial criminal enterprise. It was admitted on the appellant's behalf that he was fully conscious of the scale of the enterprise. His suggestion that he was merely a courier was rejected by the sentencing judge.
The possession of a loaded firearm was a particularly serious feature of his overall offending. The appellant admitted that the gun was for his own protection, no doubt because he was engaged in drug dealing and was carrying cash and drugs. A cumulative sentence for this offence was necessary to properly reflect the criminality involved in the drug and firearm offences.
The reckless driving also entailed additional criminal behaviour and put the safety of other road users, and the police officers involved, at risk. There was persistence in this conduct in that the appellant ignored several police attempts to get him to stop. He travelled at high speed and through two red lights. His attempt to explain this conduct as caused by PTSD was rightly viewed as secondary to his desire to avoid discovery of the drugs. A cumulative sentence for this offence was also appropriate.
The use of multiple mobile telephones or SIM cards is common in the conduct of an unlawful drug business. The finding of four mobile telephones and a laptop computer in the appellant's possession was consistent with these items being used in connection with the sale of drugs. Data contained on such items may provide evidence of other offences. There is often a strong incentive for offenders in the appellant's position not to comply with a data access order. That incentive should be countered by appropriate deterrent sentences. There should not be any expectation by offenders who refuse to comply with such orders that they will necessarily receive a concurrent sentence. In the circumstances of this case, the State does not complain of the imposition of a concurrent sentence, but it is a factor which is relevant in considering whether the total effective sentence is disproportionate.
There was very little mitigation to be found in the appellant's personal circumstances. His pleas of guilty were entered at a very late stage and it is not contested that the discount of 5% was inappropriate. The pleas of guilty also came in the face of a very strong State case. As to the trial of issues, the fact that the appellant continued to minimise his role undermines his claims of remorse. No significant mitigation was found in the fact that the appellant suffered from PTSD or in his gastric reflux disorder. He is not young and does not have a good prior record. His extensive criminal record spanning 25 years and including previous terms of imprisonment for drug offending and firearms offences highlighted the need for specific deterrence.
The appellant relies on three cases that are said to be comparable: The State of Western Australia v Hunter [2014] WASCA 87; Doherty v The State of Western Australia [2014] WASCA 142 and Le v The State of Western Australia [2014] WASCA 120. When the facts of those cases are examined, none of them are truly comparable with that of the appellant.
The offender in Hunter was convicted after trial of two drug offences and pleaded guilty to three further, relatively minor, drug offences. The total amount of methylamphetamine was 116.12 g, the bulk of which was of approximately 50% purity. A State appeal against sentence was allowed and the offender resentenced to 5 years and 6 months' imprisonment. Unlike the appellant, the offender in Hunter was not convicted of either aggravated reckless driving or aggravated possession of a firearm.
The offender in Doherty was convicted of three drug offences and three aggravated possession of a firearm offences. The first two drug offences involved 95.2 g of methylamphetamine and 6.84 g of MDMA. The other offences were committed 7 months later whilst the offender was on bail, and involved 16.03 g of methylamphetamine and three firearms. An appeal by the offender against the total sentence of 5 years and 3 months' imprisonment was dismissed. Unlike the appellant, the offender in Doherty pleaded guilty to all charges at an early stage, was not convicted of aggravated reckless driving and had favourable antecedents.
The offender in Le was convicted of seven drug offences and one firearms offence. The offending related to two distinct occasions. On the first occasion the offender was in possession of a modified shotgun, 16.46 g of methylamphetamine of between 78% and 85% purity, 14.7 g of cannabis and 6.64 g of MDPV (a derivative of methylamphetamine). Approximately five months later the offender was found in possession of 56.17 g of methylamphetamine of between 69% and 72% purity, 14.65 g of tablets that resembled MDMA (this was the subject of an attempt offence) and 55.3 g of cannabis. It was conceded by the prosecution in that case that the firearm and drugs found on the first occasion were owned by another person and that the offender intended to return them to that person on request. Furthermore, no issue was taken by the State with the offender's explanation for the offences committed on the second occasion, that is that he was provided with the drugs to sell by men who told him that he must repay the value of the drugs and gun seized on the first occasion. The offender's antecedents were unfavourable. He entered very late pleas of guilty. The offender's appeal against some of the individual sentences and a total effective sentence of 6 years and 6 months' imprisonment was dismissed. Unlike the appellant, the offender in Le was not found to have a commercial motivation, had a less significant role in drug dealing and was not convicted of aggravated reckless driving.
We have also considered a number of other cases involving drug and firearms offences. They include Karakuyu; Ricciardi v The State of Western Australia [2012] WASCA 106; Huynh v The State of Western Australia [2012] WASCA 8; Pitassi v The State of Western Australia [2014] WASCA 231 and Sakhie v The State of Western Australia [2017] WASCA 103. It is unnecessary to refer to the facts of those cases. It is sufficient to note that they do not support a conclusion that the appellant's total sentence was manifestly unreasonable or unjust.
The total effective sentence of 8 years' imprisonment imposed on the appellant bears a proper relationship to the overall criminality involved in all of the offences, viewed together, and having regard to all relevant circumstances (including the appellant's personal circumstances) and all relevant sentencing factors. It is within the range of sentences available on a proper exercise of the sentencing discretion.
As to whether the total sentence was crushing, the appellant was 47 years old at the time of sentencing. He will be eligible for parole in 6 years. Even if he is not granted parole, his age on release will not be such as to leave him without the prospect of a useful life. There is no merit in the claim that the sentence is crushing.
For the above reasons we would dismiss the appeal.