Lovell v The State of Western Australia
[2019] WASCA 169
•1 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LOVELL -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 169
CORAM: MAZZA JA
MITCHELL JA
BEECH JA
HEARD: 22 OCTOBER 2019
DELIVERED : 1 NOVEMBER 2019
FILE NO/S: CACR 33 of 2019
BETWEEN: DESMOND WALLACE LOVELL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BIRMINGHAM DCJ
File Number : SHE IND 37 of 2016
Catchwords:
Criminal law - Sentencing - Appeal against sentence - Possession and attempted possession of methylamphetamine with intent to sell or supply - Receiving stolen property - Possession of property reasonably suspected to be stolen - Where appellant was dealing in small quantities of methylamphetamine, at times in return for stolen property - Whether individual sentences are manifestly excessive - Whether total effective sentence of 5 years' immediate imprisonment infringes the first limb of the totality principle
Legislation:
Criminal Code (WA), s 414, s 417
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(1)
Result:
Application for an extension of time to appeal dismissed
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr K G Robson |
| Respondent | : | Mr J A Scholz |
Solicitors:
| Appellant | : | Evangel Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Ditri v The State of Western Australia [2006] WASCA 283
Eacott v The State of Western Australia [2009] WASCA 112
Giglia v The State of Western Australia [2010] WASCA 9
Hickling v The State of Western Australia [2016] WASCA 124; (2016) 260 A Crim R 33
Kabambi v The State of Western Australia [2019] WASCA 44
Ness v The State of Western Australia [2013] WASCA 56
Newport v The State of Western Australia [2015] WASCA 224
Pieri v The Queen [2002] WASCA 288
Poduti v The State of Western Australia [2011] WASCA 169
RHE v The State of Western Australia [2017] WASCA 60
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Littlefair [2013] WASCA 177
Tran v The State of Western Australia [2013] WASCA 77
YDN v The State of Western Australia [2018] WASCA 62
JUDGMENT OF THE COURT:
Summary
On 25 May 2017, the appellant pleaded guilty to, and was convicted of:
(1) Twelve counts of attempting to possess a prohibited drug (methylamphetamine) 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) (MDA);
(2)One count of selling a prohibited drug, (methylamphetamine) to another, contrary to s 6(1)(c) of the MDA;
(3)Two counts of possession of a prohibited drug (methylamphetamine) with intent to sell or supply it to another, contrary to s 6(1)(a) of the MDA;
(4)Two counts of receiving stolen property, contrary to s 414 of the Criminal Code (WA); and
(5)One count of possession of property reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Criminal Code.
On 15 June 2017, the sentencing judge sentenced the appellant to a total effective sentence of 5 years' immediate imprisonment, with eligibility for parole. The sentence was backdated to 13 June 2017, to take account of time spent in custody on remand.
Details of the individual offences, maximum penalties and sentences imposed are tabulated in the appendix to these reasons.
On 7 March 2019, the appellant filed a notice of appeal against his sentences. Given the delay of about 20 months in instituting the appeal, the appellant requires an extension of time in which to appeal.
The appellant seeks to appeal on two grounds. Ground 1 in effect contends that the total effective sentence of 5 years' immediate imprisonment infringes the first limb of the totality principle. Ground 2 contends that the individual sentences on each count were manifestly excessive. In oral argument, the appellant clarified ground 2 as applying to 9 of the 16 counts.[1]
[1] Appeal ts 3 - 4.
The application for leave to appeal and the application for an extension of time in which to appeal were referred to the hearing of the appeal.
For the following reasons, neither ground of appeal has any reasonable prospect of succeeding. There would be no utility in granting an extension of time in which to appeal. The application for an extension of time should be dismissed, leave to appeal should be refused on both grounds of appeal and the appeal should be dismissed.
Circumstances of offending
Over a period from September 2015 until early November 2015, the appellant was engaged in the business of selling methylamphetamine in Port Hedland. He ordered drugs from his supplier, Mr Prendergast, and supplied them to his own customers. While the appellant may have used some of the drugs himself, he was a significant player in ensuring that the methylamphetamine was distributed into the community.[2]
[2] Primary ts 105 - 106.
The appellant's offending was detected as police had obtained a telephone intercept warrant for Mr Prendergast's mobile telephone service. The appellant's offences were evidenced by intercepted telephone calls and text messages between the appellant and Mr Prendergast.
As indicated in the appendix to these reasons, the appellant's offending involved small quantities of methylamphetamine, generally less than one gram at a time, obtained or attempted to be obtained from Mr Prendergast. The exceptions were when he sold 1.5 g of methylamphetamine on 15 October 2015 and his final attempt to possess methylamphetamine (in the amount of 3.5 g) on 13 November 2015. The appellant was engaged in distributing small amounts of methylamphetamine at 'street level', assisting Mr Prendergast in distributing his product throughout Port Hedland.[3]
[3] Primary ts 90, 106.
The appellant also acted as a 'fence for stolen property',[4] which was used in payment for drugs. Between 13 and 23 January 2016, the appellant received two rings valued at $1,200, which had been stolen from a Karratha jewellers (count 16). Between 1 August 2015 and 23 January 2016, he received a generator valued at $2,000 which had been stolen from a commercial premises in South Hedland (count 17). Various items reasonably suspected to be stolen were found when a search warrant was executed at Mr Prendergast's residence, including laptops, jewellery and a split system air-conditioner (count 18). On the above dates, and on numerous occasions between 12 August 2015 and 22 January 2016, the appellant and Mr Prendergast discussed receiving and exchanging stolen property for methylamphetamine.[5]
[4] Primary ts 106.
[5] Primary ts 90 - 91.
Personal circumstances
The appellant was born in Collie. He was 60 years old at the time of offending, and 62 years old at the date of sentence. He was single, with two adult children. He had been receiving unemployment benefits since a work-related injury in 2013 resulted in nerve damage to the appellant's shoulder.[6]
[6] Primary ts 107.
The appellant had what the sentencing judge described as an entrenched history of ongoing drug use. He has a significant criminal record, which includes the following:
(1)A total sentence of 2 years 6 months' immediate imprisonment imposed in 1979 (when the appellant was 24 years old) for selling or supplying heroin and possessing money from the sale of drugs.
(2)A sentence of 1 years' imprisonment, conditionally suspended for 18 months from 6 February 2013, in respect of an offence of possessing methylamphetamine with intent to sell or supply to another committed on 17 May 2012. The appellant breached the conditionally suspended imprisonment order. However, on 3 February 2014, the order was allowed to continue.
The appellant has convictions for various other less serious matters. He was not convicted of any offences committed between 5 December 2000 and 17 May 2012. However, the conditionally suspended imprisonment order did not resolve the appellant's methylamphetamine addiction, essentially due to a lack of willingness to engage with any rehabilitation program.[7]
[7] Primary ts 107.
There was nothing to indicate that the appellant's health issues could not be appropriately managed in a custodial environment.[8]
[8] Primary ts 108.
Sentencing judge's approach
The sentencing judge recognised the appellant's plea of guilty as a mitigating factor, for which he allowed a discount of 20% under s 9AA of the Sentencing Act 1995 (WA).[9]
[9] Primary ts 109.
The sentencing judge recognised that significant weight had to be given to personal and general deterrence, with the consequence that matters personal to the appellant are accorded less weight.
As to the criminality involved in the offending, the sentencing judge observed:[10]
Whilst the weight of the drugs in question is not a significant factor, it's a matter that I do take into account. In this case the smaller quantities reveal dealing at a street level. Clearly the nature of your participation in the dealing and your place in hierarchy is a matter that's relevant.
The level or activity records that you were very active and played an important role in the distribution of the drugs. It's not an isolated transaction, but part of a drug dealing enterprise and you were, albeit described as a street level user/dealer, you are to be sentenced without reference to any label, but by reference to what your - to the offending conduct. To that extent you were involved in playing an active and important role as a dealer who facilitated the distribution of the drugs into Hedland that had been imported by others.
The fact that you were doing so as part of a need to finance or fund your habits is not mitigatory. Your role was one, as I've said, of being active, part of a larger scale drug dealing. You played an important part in Prendergast's business.
[10] Primary ts 110.
The sentencing judge also found that the appellant played an important role as a 'person willing to fence stolen goods to supply drugs'.[11]
[11] Primary ts 110.
The sentencing judge then imposed the sentences referred to in the appendix to these reasons. In doing so, his Honour recognised the totality principle and that sentences of immediate imprisonment were the only appropriate sentencing disposition. The appellant was made eligible for parole, and the sentences were backdated to 13 June 2017 to take account of time spent in custody on remand.[12]
[12] Trial ts 112 - 113.
Inferred error: general principles
Both grounds of appeal assert implied, rather than express, error. The relevant principles are well established, and were summarised in Kabambi v The State of Western Australia:[13]
(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 or inadequate, 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 (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) 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 unreasonable or plainly unjust.
[13] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Disposition
In our view, there is no merit in either ground of appeal.
Drug sentences and manifest excess
In relation to the drug offences, the appellant points to two decisions of this court dealing with the supply or possession with intent to sell or supply of very small quantities of methylamphetamine: YDN v The State of Western Australia,[14] and Ness v The State of Western Australia.[15]
[14] YDN v The State of Western Australia [2018] WASCA 62.
[15] Ness v The State of Western Australia [2013] WASCA 56.
YDN is not comparable to the present case. YDN involved a non‑commercial supply by an offender without prior convictions for commercial drug dealing, whose admission to police was the basis for his conviction.
Ness involved a single count of possessing 0.03 g of heroin by an offender found to be 'engaged in active low level or end of the chain dealing to some extent'.[16] An appeal against a sentence of 12 months' immediate imprisonment was dismissed. After stating a number of well‑established principles in relation to sentencing for drug offences,[17] Buss JA (McLure P agreeing) noted:[18]
If the appellant's offending had been a 'one-off' occurrence or an uncharacteristic aberration, the sentence of 12 months' immediate imprisonment would, no doubt, have been manifestly excessive.
The appellant's offending was not a 'one-off' occurrence or an uncharacteristic aberration. The very small quantity of heroin cannot be viewed in isolation. The text messages in combination with the scales found in the appellant's vehicle proved that she was an active low level drug dealer. This status is a relevant sentencing factor. It illuminates the appellant's moral culpability and underscores the need to deter her and other offenders from committing similar offences.
…
A drug dealer (including an active low level dealer) will not ordinarily, as a matter of fact, receive a lesser type of sentence than a term of immediate imprisonment because on the occasion he or she was apprehended the dealing involved a very small quantity of a prohibited drug.
[16] Ness [14].
[17] Ness [23] - [28].
[18] Ness [31] - [32], [34].
The decision in Ness confirms the significance of a commercial context to possession of very small amounts of prohibited drugs. Despite the fact that a regular dealer in prohibited drugs may carry little 'stock in trade', the seriousness of individual counts involving small quantities is elevated by the broader commercial context in which that possession occurs. As was noted in Ditri v The State of Western Australia,[19] 'prolific small‑scale street dealers play a vital role in the distribution of drugs in the community and should be sentenced accordingly'.
[19] Ditri v The State of Western Australia [2006] WASCA 283 [24].
Further, even if the individual sentences imposed on the appellant for counts involving amounts of less than 0.5 g of methylamphetamine might be regarded as high, the severity of those sentences is softened by the fact that they were ordered to be served concurrently with other sentences.[20]
[20] Giglia v The State of Western Australia [2010] WASCA 9 [40].
The appellant accepts that, in determining whether one of several sentences is manifestly excessive, the court may have regard to the fact that it was ordered to be served concurrently with other sentences. The appellant correctly points out that there are limits to the circumstances in which concurrency will avoid a sentence being characterised as manifestly excessive.[21] We accept that there are occasions when it is appropriate to examine an individual sentence 'because it may have proceeded on an incorrect factual basis or it may be tainted by some other demonstrable error'.[22] There will be cases in which even a wholly concurrent sentence will be properly characterised as manifestly excessive.[23] However, in our view, this is not one of those cases. In our view, the concurrent sentences relating to quantities of methylamphetamine of less than 0.5 g cannot be regarded as unreasonable or plainly unjust.
[21] Appeal ts 4 - 5.
[22] The State of Western Australia v Doyle [2017] WASCA 207 [25], citing Giglia.
[23] See, for example, Doyle [38].
The cumulative drug sentences were the 18 month sentences imposed for attempting to possess and possessing 0.8 g of methylamphetamine. The appellant ultimately did not press his challenge to those individual sentences as manifestly excessive.[24] In our view, in all the circumstances, those individual sentences cannot be said to be unreasonable or plainly unjust.
Receiving sentences and manifest excess
[24] Appeal ts 3 - 4.
The other cumulative sentence was one of 2 years' imprisonment for receiving $1,200 worth of stolen jewellery. Although the appellant refers to a number of cases,[25] they are not really comparable with the present. As Wheeler JA noted in Eacott v The State of Western Australia,[26] after referring to three receiving cases in which sentences of about 14 - 18 months were imposed:
I accept that these cases reflect the usual range, to the extent that there is one. I would add, however, that it is not easy to discern a clear 'range' for offences of this type. That is in part because they are often part of a series of offences, in which totality considerations may be important, and in part because both the value of the property, and the way in which the receiver comes to possess the property, vary widely.
[25] Pieri v The Queen [2002] WASCA 288; Eacott v The State of Western Australia [2009] WASCA 112; Poduti v The State of Western Australia [2011] WASCA 169; Newport v The State of Western Australia [2015] WASCA 224 and RHE v The State of Western Australia [2017] WASCA 60.
[26] Eacott [15]; see also Newport [46].
Given the maximum penalty, the nature of the business which the appellant was operating (involving receiving stolen goods in exchange for drugs) and the significance of personal and general deterrence as sentencing factors in the present case, it cannot be said that the individual sentence of 2 years' imprisonment for this offence was unreasonable or plainly unjust.
Total effective sentence
Further, in our view the total effective sentence of 5 years' immediate imprisonment bore a proper relationship to the overall criminality involved in all of the offences, having regard to all of the circumstances (including those personal to the appellant). For a period of about 2 months, the appellant was involved in the supply of harmful drugs into the community of a regional town, and encouraging the theft of goods to pay for the drugs. While the individual quantities of drugs were generally small, they were sold as part of an ongoing business which only ceased when the appellant's supplier stopped trusting him.[27] The appellant's antecedents, while not aggravating, elevated personal deterrence as a significant sentencing factor.
[27] Primary ts 110.
Counsel for the appellant points to the sentencing judge's observations that the appellant had a continuing attitude of disobedience to the law.[28] Counsel submits that it is apparent that the appellant is a life-long drug addict, and his offending could not have been for any other purpose than feeding his addiction.[29] Counsel contends that it is incorrect to sentence a drug addict for continuing disobedience to the drugs laws because no addict will obey the drug laws. Counsel submits that the sentence reflects an attempt to punish the appellant for his addiction rather than his criminality.[30]
[28] Appeal ts 7 - 8, referring to primary ts 108.
[29] Appeal ts 7.
[30] Appeal ts 8 - 9.
We do not accept the submissions summarised in the previous paragraph. The sentencing judge's remarks make it plain that the appellant was sentenced for his criminal conduct in relation to the supply of drugs to the Port Hedland community and his receipt of stolen property as payment for the drugs he supplied. It was the appellant's choice to fund his own drug habit through that criminal activity which caused significant harm to the community. The appellant's history of serious drug offending involving the sale or supply of prohibited drugs to others was properly recognised as elevating the significance of personal deterrence as a sentencing consideration. As the appellant's counsel ultimately accepted,[31] the fact that the appellant was motivated to fund his own use or repay drug debts is not mitigating.[32]
[31] Appeal ts 9.
[32] The State of Western Australia v Littlefair [2013] WASCA 177 [34]; Hickling v The State of Western Australia [2016] WASCA 124; (2016) 260 A Crim R 33 [71].
The appellant particularly refers to the decision of this court in Tran v The State of Western Australia.[33] In that case, the offender received a total effective sentence of 5 years' immediate imprisonment. The offender was convicted of four counts of possession of heroin with intent to sell or supply it to another, each count involving 0.2 g of the prohibited drug. He received individual sentences of 12 months' imprisonment in respect of each of those counts. He had committed a variety of other offences, including two receiving offences for which the offender was sentenced to 7 months' imprisonment for each offence. The offender was described as 'a drug dealer who was prepared knowingly to receive stolen goods in lieu of cash as payment for prohibited drugs'.[34] The 28-year-old offender entered fast-track guilty pleas, had a bad criminal record and a history of entrenched illicit drug abuse. A significant mitigating factor in Tran, not present in the appellant's case, was the offender's voluntary disclosure of much of the offending.[35] While regarded as high, the sentence was not disturbed on appeal. When all circumstances are considered, the total effective sentence in Tran is broadly consistent with that imposed on the appellant. Tran does not assist the appellant.
[33] Tran v The State of Western Australia [2013] WASCA 77.
[34] Tran [39].
[35] Tran [6], [22] - [23].
In all of the circumstances, the total effective sentence was not unreasonable or plainly unjust.
Conclusion
Neither of the appellant's grounds of appeal have any reasonable prospect of succeeding. Leave to appeal should be refused on both grounds.
Application for an extension of time on which to appeal
The appellant's appeal notice was lodged 20 months out of time. While that is a very significant period, the appellant's affidavit explains that most of the delay is attributable to the fault of a lawyer (who was not counsel in this appeal) initially allocated the matter by the Legal Aid Commission.
Given the absence of merit in the grounds of appeal, no purpose would be served by extending the time for the appellant to institute the appeal. The application for an extension of time should be refused.
Orders
For the above reasons, we make the following orders:
(1)The appellant's application for an extension of time in which to appeal is dismissed.
(2)Leave to appeal is refused on both grounds of appeal.
(3)The appeal is dismissed.
Appendix: Offences and Sentences Imposed
Count
Offence
Details **
OffenceDate
Maximum penalty
Sentence
Cum/conc
1
Attempting to possess methylamphetamine with intent to sell or supply (Misuse of Drugs Act 1981 (WA) (MDA) s 6(1)(a), s 33(1)(a))
0.2 g
6/9/15
25 years and $100,000 fine
15 months
Conc
2
Possessing methylamphetamine with intent to sell or supply (MDA s 6(1)(a))
0.5 g
6/9/15
25 years and $100,000 fine
15 months
Conc
3
Attempting to possess methylamphetamine with intent to sell or supply (MDA s 6(2), s 33(1)(a))
0.5 g
7/9/15
25 years and $100,000 fine
15 months
Conc
4
Attempting to possess methylamphetamine with intent to sell or supply (MDA s 6(1)(a), s 33(1)(a))
0.5 g
11/9/15
25 years and $100,000 fine
15 months
Conc
5
Attempting to possess methylamphetamine with intent to sell or supply (MDA s 6(1)(a), s 33(1)(a))
0.3 g
18/9/15
25 years and $100,000 fine
15 months
Conc
6
Attempting to possess methylamphetamine with intent to sell or supply (MDA s 6(1)(a), s 33(1)(a))
0.8 g
25/9/15
25 years and $100,000 fine
18 months
Cum
7
Attempting to possess methylamphetamine with intent to sell or supply (MDA s 6(1)(a), s 33(1)(a))
0.2 g
28/9/15
25 years and $100,000 fine
17 months
Conc
8
Possessing methylamphetamine with intent to sell or supply (MDA s 6(1)(a))
0.8 g
30/9/15
25 years and $100,000 fine
18 months
Cum
9
Attempting to possess methylamphetamine with intent to sell or supply (MDA s 6(1)(a), s 33(1)(a))
0.8 g
30/9/15
25 years and $100,000 fine
18 months
Conc
10
Attempting to possess methylamphetamine with intent to sell or supply (MDA s 6(1)(a), s 33(1)(a))
1 g
2/10/15
25 years and $100,000 fine
15 months
Conc
11
Attempting to possess methylamphetamine with intent to sell or supply (MDA s 6(1)(a), s 33(1)(a))
0.3 g
4/10/15
25 years and $100,000 fine
15 months
Conc
12
Attempting to possess methylamphetamine with intent to sell or supply (MDA s 6(1)(a), s 33(1)(a))
0.5 g
8/10/15
25 years and $100,000 fine
15 months
Conc
13
Selling methylamphetamine (MDA s 6(1)(c))
1.5 g
15/10/15
25 years and $100,000 fine
18 months
Conc
14
Possessing methylamphetamine with intent to sell or supply (MDA s 6(1)(a))
1 g
15/10/15
25 years and $100,000 fine
15 months
Conc
15
Attempting to possess methylamphetamine with intent to sell or supply (MDA s 6(1)(a), s 33(1)(a))
3.5 g
13/11/15
25 years and $100,000 fine
18 months
Conc
16
Receiving stolen property (Criminal Code (WA) s 414)
Jewellery ($1200)
Between 12/11/15 - 23/1/16
14 years
2 years
Head sentence
17
Receiving stolen property (Code s 414)
Honda generator ($2000)
Between 1/8/15 - 23/1/16
14 years
18 months
Conc
18
Possessing stolen property (Code s 417)
Air conditioner, laptops, jewellery
Between 11/8/15 - 23/1/16
7 years
18 months
Conc
Total effective sentence
5 years
**Weight of methylamphetamine or details of property involved in the offence
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Research Associate/Orderly to the Honourable Justice Mitchell1 NOVEMBER 2019
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