Mather v The State of Western Australia
[2017] WASCA 148
•11 AUGUST 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MATHER -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 148
CORAM: BUSS P
MAZZA JA
HEARD: 24 JULY 2017
DELIVERED : 11 AUGUST 2017
FILE NO/S: CACR 84 of 2017
BETWEEN: SHAUN MICHAEL MATHER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCOTT DCJ
File No :IND 104 of 2016
Catchwords:
Criminal law - Application for leave to appeal against sentence - Possession of methylamphetamine with intent to sell or supply - Guilty plea - Manifest excess - Whether reduction of sentence under s 9AA of the Sentencing Act 1995 (WA) inadequate
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal on grounds 1 and 2 refused
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: No appearance
Solicitors:
Appellant: Patti Chong Lawyer
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1
Al‑Rafei v The State of Western Australia [2017] WASCA 4
Chen v The State of Western Australia [2017] WASCA 114
Chen v The State of Western Australia [2017] WASCA 99
Galbraith v The State of Western Australia [2011] WASCA 70
Hoang v The State of Western Australia [2015] WASCA 130
Kitis v The State of Western Australia [2013] WASCA 34
Le v The State of Western Australia [2015] WASCA 73
Ly v The State of Western Australia [2015] WASCA 18
Mikulic v The State of Western Australia [2011] WASCA 127
Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324
Ngo v The Queen [2017] WASCA 3
Ozan v The State of Western Australia [2013] WASCA 27
Penney v The State of Western Australia [2011] WASCA 71
Phan v The State of Western Australia [2014] WASCA 144
Rinaldi v The State of Western Australia [2017] WASCA 48
Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508
Seeto v The State of Western Australia [2014] WASCA 221; (2014) 246 A Crim R 386
Thomas v The State of Western Australia [2014] WASCA 202
Tresnjo v The State of Western Australia [2015] WASCA 193
Ye v The State of Western Australia [2016] WASCA 103
Yiu v The State of Western Australia [2016] WASCA 172
Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1
REASONS OF THE COURT: This is an application for leave to appeal against sentence.
The appellant was convicted on his plea of guilty of one offence in an indictment which alleged that on 9 April 2015 at Mount Richon, he had in his possession a prohibited drug namely methylamphetamine with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).
At the time the appellant committed this offence, he was subject to a suspended imprisonment order.
On 10 March 2017, the appellant was sentenced to 12 years and 6 months' imprisonment for the offence in the indictment and a further 6 months' imprisonment for the offence the subject of the suspended imprisonment order. Thus the total effective sentence imposed upon the appellant was 13 years' imprisonment. The appellant was made eligible for parole and the sentences were backdated to commence on 9 April 2015.
The appellant relies upon two proposed grounds of appeal, both of which only concern the sentence imposed for the offence committed on 9 April 2015. Proposed ground 1 alleges that the sentence is manifestly excessive. Proposed ground 2, in substance, alleges that the 15% reduction applied by his Honour for the appellant's plea of guilty, pursuant to s 9AA of the Sentencing Act 1995 (WA), was unreasonable.
In our opinion, neither ground of appeal has a reasonable prospect of succeeding. Leave to appeal in respect of each ground should be refused and the appeal dismissed. Our reasons for these conclusions are as follows.
The facts
The facts as found by the sentencing judge are unchallenged and may be summarised in this way.
On 9 April 2015, the appellant was observed by police to purchase methylamphetamine from a patched member of an outlaw motorcycle gang. The appellant did not use his own money to pay for the drugs. The identity of the person who provided the money is not known.
Shortly after the appellant took delivery of the methylamphetamine, he went to the home of Mr Christopher Rowson in Mount Richon. There, in a room protected by a combination lock, the appellant, Mr Rowson and another man, Mr Ahmet Nuhana, processed the drug. That is, they set about unpacking it, 'cutting' the drug using the additive MSM and then packaging it into clipseal bags for sale. As this was occurring, police officers executed a search warrant. The appellant was seen by police officers to dispose of or secrete the methylamphetamine by dumping it into a nearby spa bath. In doing so, the appellant spilled a quantity of methylamphetamine onto the floor next to the spa.
The police were able to recover some solid methylamphetamine from the floor and from the spa, including some contained in bags. The spa itself contained 700 litres of water into which much of the remaining methylamphetamine had dissolved. The police retrieved 595 litres of spa water, samples of which were tested by the ChemCentre. The remaining 105 litres of spa water was poured onto the back lawn of Mr Rowson's property (the residual spa water).
An analysis by a chemist revealed that the total weight of methylamphetamine (not including the residual spa water) was 2.131 kg. This quantity consisted of:
(a)132 g of methylamphetamine with a purity of 79% found on the floor next to the spa;
(b)62 g of methylamphetamine with a purity of 82% being the solid methylamphetamine recovered from the spa;
(c)222.6 g of liquid methylamphetamine which was discovered in plastic bags in the spa; and
(d)1.715 kg of methylamphetamine extracted from the 595 litres of spa water recovered by the police.
Some attempt was made to calculate the quantity of methylamphetamine in the residual spa water. In negotiations which occurred after the appellant entered his plea of guilty and before he was sentenced, and as a result of an expert report obtained on behalf of the appellant, the parties agreed that it was not possible to precisely calculate the quantity of methylamphetamine in this water. In the end, the appellant was sentenced on the basis that he possessed with intent to sell or supply 2.131 kg of methylamphetamine and that there was some additional methylamphetamine in the residual spa water. The overall purity of the 2.131 kg of methylamphetamine was between 79% to 82%.[1] The street value of the 2.131 kg of methylamphetamine was estimated to be 'well in excess of $2 million'.[2]
[1] ts 739 ‑ 741, ts 765 ‑ 766.
[2] ts 766.
The room in which the methylamphetamine was being processed contained, in addition to the methylamphetamine, a large mixing bowl, MSM, boxes of large clipseal bags, digital scales, mixing spoons, a box of disposable gloves, a bottle of acetone, a vacuum sealer and other drug‑related paraphernalia. The police also found a number of mobile telephones, four of which belonged to the appellant.
As we have said, at the time the appellant committed the offence he was subject to a suspended imprisonment order. This order was in respect of an offence of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply, committed on 30 May 2014. On this occasion, the appellant was found by police with approximately 3 g of methylamphetamine.[3] On 30 December 2014, the appellant was sentenced in the Fremantle Magistrates Court to 9 months' imprisonment suspended for 15 months.
[3] State's outline of submissions filed 2 March 2017, annexure B.
The appellant's antecedents
The learned sentencing judge was provided with considerable material with respect to the appellant's antecedents including a pre‑sentence report, a psychological report written by Mr Bart Wszola, a psychiatric report written by Dr James Fellows‑Smith, a number of character references and test results which indicated that, while on remand, the appellant had been drug free.
At the time he was sentenced, the appellant was 35 years of age. He was brought up for the first seven years by his maternal grandmother and then by his mother. The appellant's stepfather was physically abusive towards him. The expert evidence indicated that this abuse had some adverse psychological effects upon the appellant. The appellant left school after completing year 10 and, up to early 2015, had a reasonably consistent and productive work history.
The appellant has a 7‑year‑old son from a long term relationship with his former partner.
The appellant began using methylamphetamine at about the age of 19 or 20. Apart from a period around the time his son was born, he has been a regular user of the drug. About 12 months before the commission of the offence the subject of the indictment, the appellant was dealing in relatively small quantities of methylamphetamine, but after he became unemployed in early 2015 he started selling and supplying the drug in much bigger quantities.[4]
[4] ts 767 ‑ 768.
The appellant has a lengthy criminal history which mostly comprises traffic offences and minor drug offences. However, in 2010, the appellant was convicted in the District Court of aggravated burglary and assault occasioning bodily harm for which he was placed on a suspended imprisonment order. It is of some significance that in 2003 he was convicted in the Fremantle Court of Petty Sessions of possession of a prohibited drug with intent to sell or supply it to another, for which he was fined.
The character references which were tendered on the appellant's behalf spoke positively about him. The other materials indicated that the appellant has, while in prison, undertaken rehabilitative courses and has been drug free.
The sentencing remarks
As the appellant makes no allegation of express error on the part of the sentencing judge, it is unnecessary to repeat in detail what his Honour said.
His Honour made the following findings:
1.The role played by the appellant was 'more significant than that of a courier'.[5] Not only did the appellant pick up and pay for over 2 kg of high purity methylamphetamine, but he then proceeded to play a role in processing the drug, knowing that it was to be distributed into the community.
2.The appellant committed the offence for personal gain. He was to receive 2 oz of methylamphetamine for his services, some of which he intended to sell.
3.At the time of the commission of the offence, the appellant was actively involved in the business of selling methylamphetamine.
4.The appellant played 'an essential role' along with others in the commission of the offence with the aim of selling a significant quantity of the drug into the community.
5.The appellant was 'a high‑end dealer user' of methylamphetamine.
[5] ts 766.
His Honour took into account as mitigating factors the plea of guilty (about which we will say more in the context of dealing with proposed ground 2), that he has gained insight into the damage which illicit drugs cause in the community, his remorse and the support that the appellant has from his family and friends.
General principles
Each of the proposed grounds of appeal alleges implied error by the sentencing judge. This court is not entitled to intervene merely because it would have imposed a different sentence. In order for either proposed ground to succeed, the appellant must demonstrate that the conclusion reached by the sentencing judge was plainly unjust or unreasonable.
It is necessary in determining whether a sentence is manifestly excessive to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence (in this case 25 years' imprisonment and/or a fine of $100,000), the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the kind in question and the personal circumstances of the offender.
While it is necessary to have regard to comparable cases, it must always be borne in mind that this is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
It must also be borne in mind that when an appellate court dismisses an appeal against sentence and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range. Each case must be decided on its own facts and circumstances.
It is convenient to deal with ground 2 first.
Disposition of proposed ground 2
The appellant was charged with the indictable offence on 9 April 2015. He pleaded guilty in the Magistrates Court at a committal mention date on 20 December 2015. By then, the appellant had appeared in the Magistrates Court on five or six occasions.
The learned sentencing judge allowed a discount of 15% for the plea of guilty, pursuant to s 9AA of the Sentencing Act. In doing so, his Honour found that although the appellant pleaded guilty at a relatively early time, the plea had not been made at the first reasonable opportunity and was made in the face of an 'overwhelming' State case. Neither of these findings was challenged by the appellant in this court.
Counsel for the appellant submitted that the discount of 15% was unreasonable. He submitted that a discount in the order of 20% was more appropriate, having regard to the relatively early time at which the appellant entered his plea and that the plea resulted in a benefit to the State because no trial was required with respect to the appellant.
Section 9AA of the Sentencing Act reads as follows:
9AA. Plea of guilty, sentence may be reduced in case of
(1)In this section -
fixed term has the meaning given in section 85(1);
head sentence, for an offence, means the sentence that a court would have imposed for the offence if —
(a)the offender had been found guilty after a plea of not guilty; and
(b)there were no mitigating factors;
victim has the meaning given in section 13.
(2)If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
(3)The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
(4)If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -
(a)by more than 25%; or
(b)by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
(5)If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.
(6)This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.
Section 9AA of the Sentencing Act has been the subject of numerous cases decided in this court.[6] As the statutory text of s 9AA makes plain, the maximum discount for a plea of guilty is 25%. A discount of 25% must not be allowed unless the offender pleaded guilty or indicated that he or she would plead guilty at the 'first reasonable opportunity'. The quantum of any discount is informed by the considerations in s 9AA(2) and (3). A sentencing judge has a discretion as to the quantum of the discount that is informed by the considerations in s 9AA(2) and (3).
[6] See, for example, Rinaldi v The State of Western Australia [2017] WASCA 48; Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508; Thomas v The State of Western Australia [2014] WASCA 202 and Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1.
In the present case, his Honour took into account when the plea of guilty was entered and the 'overwhelming' strength of the State case. These were relevant factors to the quantum of the reduction to be given under s 9AA.
The case against the appellant was truly overwhelming. He was caught 'red‑handed'. Although the plea was entered at a relatively early stage, it was not entered at the first reasonable opportunity. Having regard to the factors relevant to the question of the reduction to be given under s 9AA, we are unable to conclude that his Honour's discretionary decision was plainly unjust or unreasonable.
Proposed ground 2 does not have a reasonable prospect of succeeding and leave to appeal in respect of it should be refused.
Proposed ground 1
Counsel for the appellant relied on his written submissions in support of this proposed ground. Those written submissions focus upon a selective analysis of a relatively small number of cases said to be comparable to the present case, namely Rinaldi v The State of Western Australia; Mikulic v The State of Western Australia;[7] Seeto v The State of Western Australia;[8] Ngo v The Queen[9] and Ye v The State of Western Australia[10].
[7] Mikulic v The State of Western Australia [2011] WASCA 127.
[8] Seeto v The State of Western Australia [2014] WASCA 221; (2014) 246 A Crim R 386.
[9] Ngo v The Queen [2017] WASCA 3.
[10] Ye v The State of Western Australia [2016] WASCA 103.
The sentencing principles applicable to offences of the type committed by the appellant are well known. The major sentencing considerations for such offences 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.
The appellant played an important role in the commission of the offence. He handed over the money in exchange for the large quantity of high purity methylamphetamine which he brought to Mr Rowson's house. In addition to obtaining the drug and bringing it to the house, he participated in its 'processing'. When the police executed the search warrant, he acted to dispose of the drug in a way which would prevent the police from seizing it.
The quantity and purity of the methylamphetamine was significant. So too was its value.
The appellant's participation in the offence was far more than being a mere 'foot soldier'. He committed the offence in the context of already being involved in significant drug dealing. He accepted the obvious risk of apprehension and imprisonment in order to obtain a substantial commercial benefit without regard to the human cost of his conduct. The appellant committed the offence while subject to the suspended imprisonment order referred to earlier. The need to provide both general and specific deterrence far outweighs the appellant's personal circumstances to the extent that those circumstances could be considered to be favourable. In this regard, it cannot be overlooked that the appellant could not legitimately lay claim to a reduction in his sentence for good character.
As to the cases cited on the appellant's behalf, the case of Ngo can be put to one side as it involved Commonwealth and not State drug offending. We have had regard to the rest of the cases referred to by the appellant and to other cases not referred to by him, including Galbraith v The State of Western Australia;[11] Penney v The State of Western Australia;[12] Kitis v The State of Western Australia;[13] Ozan v The State of Western Australia;[14] Milenkovski v The State of Western Australia;[15] Phan v The State of Western Australia;[16] Ly v The State of Western Australia;[17] Le v The State of Western Australia;[18] Hoang v The State of Western Australia;[19] Tresnjo v The State of Western Australia;[20] Zanon v The State of Western Australia;[21] Yiu v The State of Western Australia;[22] Al‑Rafei v The State of Western Australia;[23] Chen v The State of Western Australia[24] and Chen v The State of Western Australia.[25] Bearing in mind that no two cases are the same, the outcomes in these cases do not support the submission that the sentence imposed upon the appellant was manifestly excessive.
[11] Galbraith v The State of Western Australia [2011] WASCA 70.
[12] Penney v The State of Western Australia [2011] WASCA 71.
[13] Kitis v The State of Western Australia [2013] WASCA 34.
[14] Ozan v The State of Western Australia [2013] WASCA 27.
[15] Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324.
[16] Phan v The State of Western Australia [2014] WASCA 144.
[17] Ly v The State of Western Australia [2015] WASCA 18.
[18] Le v The State of Western Australia [2015] WASCA 73.
[19] Hoang v The State of Western Australia [2015] WASCA 130.
[20] Tresnjo v The State of Western Australia [2015] WASCA 193.
[21] Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1.
[22] Yiu v The State of Western Australia [2016] WASCA 172.
[23] Al‑Rafei v The State of Western Australia [2017] WASCA 4.
[24] Chen v The State of Western Australia [2017] WASCA 99.
[25] Chen v The State of Western Australia [2017] WASCA 114.
Having regard to all relevant sentencing factors, we are far from persuaded that it is reasonably arguable that the sentence imposed upon the appellant for the offence he committed on 9 April 2015 was manifestly excessive. In our opinion, the sentence that was imposed was within the range of a sound sentencing discretion. Thus it cannot be said to have been unreasonable or plainly unjust. Ground 1 has no reasonable prospect of success and leave to appeal in respect of it should be refused.
Conclusion
Neither ground of appeal has a reasonable prospect of succeeding. The appeal should be dismissed. The orders we would make are as follows:
1.Leave to appeal on grounds 1 and 2 is refused.
2.The appeal is dismissed.
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