McDougall v The State of Western Australia

[2009] WASCA 232

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   McDOUGALL -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 232

CORAM:   McLURE P

OWEN JA
WHEELER JA

HEARD:   3 DECEMBER 2009

DELIVERED          :   22 DECEMBER 2009

FILE NO/S:   CACR 177 of 2008

BETWEEN:   IAN WALTER McDOUGALL

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :GROVES DCJ

File No  :IND GER 62 of 2007

Catchwords:

Criminal law - Sentence - Possession of cocaine with intent to sell or supply - Role in distribution - Whether partial personal use - Manifest excess - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal refused

Category:    D

Representation:

Counsel:

Appellant:     Mr P G Giudice

Respondent:     Mr A L Troy

Solicitors:

Appellant:     George Giudice Law Chambers

Respondent:     Director of Public Prosecutions (WA)

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

Cant v The State of Western Australia of Western Australia [2009] WASCA 188

Dann v The State of Western Australia [2006] WASCA 254

Dixon v The State of Western Australia [2006] WASCA 255

Hollingsworth v The State of Western Australia [2004] WASCA 73

HV v The State of Western Australia [2006] WASCA 242

Laws v The State of Western Australia [2007] WASCA 95

R v Munro [2000] WASCA 285

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

The State of Western Australia v Atherton [2009] WASCA 148

1. McLURE P: This is an application for leave to appeal and an appeal against a sentence of 4 years and 6 months' imprisonment imposed on the appellant following his conviction for possession of cocaine with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).

2. The facts are as follows.  On 23 February 2007 the police executed a search warrant at the property where the appellant was living with his partner and child.  During the course of that search, police located a small clipseal bag within another clipseal bag containing 28.1 g of cocaine with a purity of approximately 67%.  Evidence at trial was that the median purity of cocaine in Western Australia at the time was 33%.

3. Following the search the appellant and his partner participated in a video record of interview.  In the course of the interview, the appellant admitted that the cocaine was his.  However, the appellant pleaded not guilty to the charge, asserting at trial that the admission made by him in the video record of interview was a false confession.  The appellant gave evidence that he made the admission after a discussion with his partner to enable her to be discharged from police custody so as to attend to their child.  The jury returned a verdict of guilty.

4. The appellant relies on three grounds of appeal.  He claims that:

   (1)the sentence of 4 years and 6 months' imprisonment is manifestly excessive;

   (2)the sentencing judge erred in characterising the appellant as a prospective dealer of cocaine at about a mid‑level in the distribution chain;

   (3)the sentencing judge erred in failing to differentiate, or differentiate to a greater extent, between an offender being in possession with intent to sell solely for profit on the one hand and to feed a drug habit on the other.

5. The appellant was aged 27 at the time of the offence.  He commenced using cannabis when he was aged 14 years.  He also experimented with other drugs.  He ceased using drugs between 1997 and 2004.  After his stepfather died in 2004, the appellant commenced using methylamphetamine, switching sometime later to cocaine.

6. The appellant and his partner have two young children aged approximately 1 year and 5 years at the time of sentencing.  He is a qualified boilermaker and, for two years prior to his arrest, had operated a bobcat and truck business on his own account.

Mid level of distribution

1. The sentencing judge stated in his sentencing remarks:

   Now, here, when the police executed their search warrant at your home I am satisfied that there was none of the usual paraphernalia which goes with somebody who is engaged in the distribution of illicit substances.  For example, although there was a set of scales no illicit substance was detected on the surface.  There were no clipseal bags located in the house, no mixing agent or cutting agents which might have been used.  There were no finger prints, apparently, on the bags or the tissue located with them.  There were no large sums of money, apart from $470 or thereabouts in your wallet.  There were not the trappings of wealth which might otherwise go with somebody who has been engaged for some time in the distribution of drugs.

   It is said by your counsel that this offence must be regarded as an isolated offence, rather than … the circumstances suggesting a commercial activity; that is, that you were not engaged as part of an organised network.

   Conversely, as the State says and I've indicated earlier, there was no evidence at trial that you were a cocaine user ‑ that is apparent to me now through the reports provided to the court ‑ nor any evidence that you were intending to use any of that quantity of cocaine for yourself.

   I must conclude, at least, that you are what might be described as a user of cocaine and a prospective dealer of cocaine about a mid‑level of the distribution chain.  That much at least is acknowledged by your counsel.

   Engaging in the distribution of drugs in any degree is a grave offence.  Those who gain profit from dealing in drugs simply make the situation worse.  As I have indicated, there is no indication here that you had gained profit but it is what was described as the gravamen of your offence, being your in futuro conduct from which you may have profited that is relevant.

2. The sentencing judge had asked the appellant's counsel where the appellant was placed in any hierarchy.  Counsel responded:

   Your Honour treats him as … a user/prospective dealer; that is as specific as one can get.  And where one looks at the quantum and the purity, and one is (indistinct) for a mid‑level type position.

3. It is apparent from the exchange between counsel and the sentencing judge and the sentencing judge's reasons as a whole, that the sole focus was where the appellant would be placed in the distribution chain having regard to the amount and purity of the drug.  The classification adds nothing to the unchallenged facts on which it is based.  Ground 2 is without merit.

Partial personal use

1. There is no evidentiary basis for a finding that the appellant intended any part of the cocaine the subject of the conviction for his personal use.  The appellant bore the onus of establishing any such claim on the balance of probabilities:  R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [27]. Indeed, there was no challenge to the prosecution statement that the appellant was in possession of the 28.1 g of cocaine with an intention to sell or supply to another.

2. In any event, the sentencing judge did not sentence the appellant on the basis that the entire amount in the appellant's possession would be sold for profit.  That is evident from the final two paragraphs in the reasons quoted above.  This ground is also without merit.

Manifest excess

1. This court can only intervene if the appellant establishes an express or implied material error of fact or law by the sentencing judge.  A claim of manifest excess depends on establishing implied error in the type or length of sentence imposed.

2. To determine whether a sentence is manifestly excessive regard is had to the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender.

3. The appellant suggests that the fact there had been no actual sale or supply (only an intended sale or supply) is a mitigating factor. It is not. Intention to sell and sale are different offences (see s 6(1)(a) and (c) of the Act) although the maximum penalty (25 years' imprisonment) is the same: s 34 of the Act.

4. As the sentencing judge noted, the appellant's personal circumstances were favourable.  He had a stable family life, extended family support, a stable employment history and a lack of serious prior offending.  However, because significant weight is given to considerations of deterrence for drug trafficking offences, reduced weight is given to matters personal to the offender.

1. I have had regard to the sentences customarily imposed for offences of this type.  Comparable cases include R v Munro [2000] WASCA 285; Laws v The State of Western Australia [2007] WASCA 95; Dann v The State of Western Australia [2006] WASCA 254; HV v The State of Western Australia [2006] WASCA 242; Hollingsworth v The State of Western Australia [2004] WASCA 73; Cant v The State of Western Australia of Western Australia [2009] WASCA 188; and Dixon v The State of Western Australia [2006] WASCA 255. I have also had regard to the cases relied on by the appellant in oral submissions and those referred to in The State of Western Australia v Atherton [2009] WASCA 148 [130] ‑ [140]. When regard is had to the differences in relevant sentencing variables, in particular whether or not the offender pleaded guilty, it cannot be said the sentence is inconsistent with the standards of sentences customarily imposed.

2. Although the sentence imposed on the appellant is at the high end of the sound sentencing range, it is not shown to be manifestly excessive.  I would refuse leave to appeal.

3. OWEN JA:  I agree with McLure P.

4. WHEELER JA:  I agree with McLure P.