Miles v The State of Western Australia
[2016] WASCA 138
•4 AUGUST 2016
MILES -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 138
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 138 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:49/2016 | 20 JULY 2016 | |
| Coram: | MAZZA JA MITCHELL JA | 4/08/16 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MATTHEW ARTHUR MILES THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for leave to appeal against sentence Numerous drugs and firearms offences Possession of cannabis with intent to sell or supply Totality principle Turns on own facts |
Legislation: | Criminal Code (WA), s 417 Firearms Act 1973 (WA), s 19 Misuse of Drugs Act 1981 (WA), s 6 |
Case References: | Labrook v The State of Western Australia [2016] WASCA 127 Rigney v The State of Western Australia [2008] WASCA 96 Rodi v The State of Western Australia [No 2] [2014] WASCA 233 Roffey v The State of Western Australia [2007] WASCA 246 Stagno v The State of Western Australia [2013] WASCA 166 Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MILES -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 138 CORAM : MAZZA JA
- MITCHELL JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : EATON DCJ
File No : IND 1442 of 2015
Catchwords:
Criminal law - Application for leave to appeal against sentence - Numerous drugs and firearms offences - Possession of cannabis with intent to sell or supply - Totality principle - Turns on own facts
Legislation:
Criminal Code (WA), s 417
Firearms Act 1973 (WA), s 19
Misuse of Drugs Act 1981 (WA), s 6
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D J McKenzie
Respondent : No appearance
Solicitors:
Appellant : David McKenzie
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Labrook v The State of Western Australia [2016] WASCA 127
Rigney v The State of Western Australia [2008] WASCA 96
Rodi v The State of Western Australia [No 2] [2014] WASCA 233
Roffey v The State of Western Australia [2007] WASCA 246
Stagno v The State of Western Australia [2013] WASCA 166
Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326
- REASONS OF THE COURT:
Summary
1 The appellant seeks leave to appeal against a total effective sentence of 22 months' imprisonment imposed in respect of three offences with which he was charged on indictment. The indictment charged the appellant with two drug offences and the possession of $27,500 reasonably suspected of being unlawfully obtained (which the appellant accepted was the proceeds of the sale of cannabis). At the time the sentences for the indicted offences were imposed, the appellant had served 13 months of a 15-month sentence of imprisonment imposed by the Magistrates Court for various drugs and firearms offences.
2 The appellant's sole proposed ground of appeal is that the sentencing judge failed to properly apply the first limb of the totality principle. In our view, that ground has no reasonable prospects of success. Having regard to the totality of the appellant's offending and the circumstances of the case, including the appellant's personal circumstances, the total effective sentence of 22 months' imprisonment clearly bore a proper relationship to the overall criminality involved in all of the indicted offences. Further, the total effective sentence of 2 years 11 months' imprisonment for all relevant offences did not arguably fail to bear a proper relationship to the overall criminality involved in those offences.
3 It follows that leave to appeal on the sole proposed ground of appeal should be refused, with the consequence that the appeal is taken to be dismissed.
Search of the appellant's premises on 3 October 2014
4 At about 7.00 am on 3 October 2014, police executed search warrants at the appellant's East Cannington residence. They located a 12-gauge shotgun and ammunition, .22 ammunition, 1 g of methylamphetamine, one dexamphetamine tablet and a glass smoking implement. The appellant has never held a licence, and was disqualified from holding a licence, to possess the firearm and ammunition, and did not have a prescription for the dexamphetamine tablet. The appellant was charged with unlicensed possession of the firearm and ammunition, possession of prohibited drugs and possession of drug paraphernalia on which there was a prohibited drug.
Going armed in public on 26 December 2014
5 At about 12.10 am on 26 December 2014, the appellant approached two persons waiting for a taxi outside the unit complex at which he resided in East Cannington. The appellant asked the men whether they were going to break into his house. One of the men indicated that he lived in the complex of units. As the appellant engaged the men in conversation, he reached into his pants and pulled out a silver handgun, which he pushed into the victim's hip and abdomen area. The appellant continued talking to the victim before returning the handgun to his pants and walking back to the units.
Arrest and search of the appellant's premises on 4 February 2015
6 At the Perth Magistrates Court on 4 February 2015, the appellant was arrested for the offence of 26 December 2014. He was conveyed to his East Cannington residence where further search warrants were executed. Police located a total of 421.8 g of cannabis; $27,500 in cash which the appellant admitted was obtained from the sale of cannabis and 46.78 g of dexamphetamine tablets. Police also located a paintball gun, a clipseal bag containing cannabis seeds, a total of 1.17 g of methylamphetamine and a glass smoking implement which the appellant admitted was used to smoke methylamphetamine. Police also found $80 cash and a Blackberry mobile telephone, both of which the appellant admitted stealing from a parked vehicle on Murray Street in Perth prior to attending the Perth Magistrates Court.
Sentences imposed by the Magistrates Court on 16 July 2015
7 On 16 July 2015, the appellant was sentenced to a total effective sentence of 15 months' imprisonment, backdated to 4 February 2015, and a $100 fine by the Magistrates Court at Perth in respect of the following offences:
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8 The appellant was charged on indictment with possession of the cannabis and dexamphetamine located at his residence on 4 February 2015 with intent to sell or supply to another, and possession of money reasonably suspected of being unlawfully obtained. At the commencement of trial, he pleaded guilty to the offences concerning the cannabis and currency. The appellant pleaded not guilty to the offence of possession of dexamphetamine with intent to sell or supply to another. He was acquitted of that charge, but convicted of simple possession of that drug (having formally admitted the elements of that offence at the commencement of trial).
9 On 4 March 2016, the sentencing judge imposed a total effective sentence of 22 months' imprisonment, to begin on that date, in respect of the indicted offences:
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10 At the time the sentences for the indicted offences commenced, the appellant had served 13 months of the 15-month sentence imposed by the Magistrates Court. The total effective sentence imposed in respect of all of the offences committed on 3 October 2014, 26 December 2014 and 4 February 2015 was therefore 2 years 11 months' imprisonment.
Sentencing judge's approach
11 After referring to the circumstances of the appellant's offending, the sentencing judge noted that the appellant was 33 years old and that his mother, who suffered from serious health issues, was caring for the appellant's 6-year-old son. The sentencing judge referred to the appellant's history of employment as a ceiling fixer and forklift driver which was brought to an end by the appellant's drug problems. The trial judge referred to the appellant's methylamphetamine use from his early 20s, and his considerable criminal record which included a number of breaches of suspended sentences.
12 The sentencing judge referred to the sentences imposed by the Magistrates Court on 16 July 2015. He noted:
[T]his tendency to have firearms about might be part of a separate fascination on your part with weapons and firearms, or it might reflect a degree of paranoia, a result of persistent drug use (ts 186).
13 The sentencing judge regarded the convictions concerning the cannabis and cash to be part and parcel of the one business of dealing in prohibited drugs. He noted that the money must have been the proceeds of past deals in prohibited drugs, and the cannabis would have been the subject of future deals. Consistently with the jury's verdict, he accepted that the appellant's possession of dexamphetamine was for his own personal use, and said that this offence may have warranted only a fine if dealt with alone. However, the sentencing judge regarded the cannabis and cash offences as requiring the imposition of a sentence of imprisonment to match the objective seriousness of the appellant's offending. He observed that personal and general deterrence loomed large.
14 The sentencing judge allowed a discount of 5% in respect of the appellant's late pleas of guilty, pursuant to s 9AA of the Sentencing Act 1995 (WA). He then imposed the sentences which are the subject of this appeal. He said that he would make those sentences effective from 4 March 2016, as:
That takes into account to some degree the fact that some of the sentences imposed back on 16 July 2015 were for offences committed on 4 February 2015, and others were … for offences that occurred on other occasions (ts 188).
15 The appellant was made eligible for parole.
Ground of appeal
16 The appellant appeals against the sentences imposed for the indicted offences. Although the ground refers to the sentence being manifestly excessive, the submissions make it clear that what is alleged is a failure to apply the first limb of the totality principle of sentencing.
Disposition of appeal
17 The law governing the application of the first limb of the totality principle is well established, and was summarised in Roffey v The State of Western Australia.4 The totality principle applied in respect of sentences which the appellant was serving on 4 March 2015 as well as the sentences imposed on that date.5
18 Two questions arise for consideration in the present case. The first is whether the total effective sentence of 22 months' imprisonment imposed in respect of the indicted offences fails to bear a proper relationship to the overall criminality involved in all those offences. The second question is whether the total effective sentence of 2 years 11 months' imprisonment fails to bear a proper relationship to the overall criminality involved in all the offences committed on 3 October 2014, 26 December 2014 and 4 February 2015. In answering each question, the relevant offences must be viewed in their entirety, having regard to the circumstances of the case including those referable to the appellant personally. If either of those two questions were answered in the affirmative, it would be appropriate for this court to reduce the total effective sentence imposed in respect of the indicted offences to give proper effect to the first limb of the totality principle.
19 Counts 1 and 3 on the indictment were serious offences. They reflected the appellant's involvement in a commercial enterprise for the sale of cannabis to others. Given that the appellant was clearly a commercial dealer in cannabis, and having regard to the late plea of guilty, the quantity of cannabis involved and the appellant's antecedents, the sentence imposed for the possession of cannabis was well within the range of sound sentencing.6 The cash found was the product of the sale of cannabis other than that located in the appellant's residence on 4 February 2015, and was appropriately the subject of a cumulative sentence.
20 The offences relating to firearms, particularly the offence involving the production of a firearm or replica firearm, were also serious offences. The combination of the possession of drugs, the use of methylamphetamine and the possession of firearms is particularly concerning. As was noted in Stagno v The State of Western Australia,7 the use of firearms by drug dealers introduces a potential for violence and requires particular deterrence. As the decision in Stagno recognises, the accumulation of sentences imposed for drugs and firearms offences may well be appropriate.
21 The appellant refers to only one decision of this court, Rigney v The State of Western Australia.8 In that case the sentencing judge had imposed a concurrent sentence of 3 months' imprisonment for an offence of possessing 318.5 g of cannabis, in circumstances where $8,070 cash was also located on the premises. However, there was no charge in respect of the cash, and the sentence for the cannabis offence, which was not challenged on appeal, was a wholly concurrent component of a total effective sentence of 6 years' imprisonment imposed in relation to two counts of possessing methylamphetamine with intention to sell or supply to another. The circumstances in Rigney are not comparable with the present case and, in any event, a single decision in another case does not establish a breach of the totality principle in the present matter.
22 Having regard to the totality of the appellant's offending and the circumstances of the case, including the appellant's personal circumstances, the total effective sentence of 22 months' imprisonment clearly bore a proper relationship to the overall criminality involved in all of the indicted offences. Further, having regard to those matters, the total effective sentence of 2 years 11 months' imprisonment for the offences committed on 3 October 2014, 26 December 2014 and 4 February 2015 did not arguably fail to bear a proper relationship to the overall criminality involved in all those offences. While the trial judge did not expressly refer to the totality principle, he did refer to the earlier offending and sentences, and the provision for partly concurrent sentences clearly indicated that he was cognisant of this well-established principle. Having regard to all the circumstances of the offences and the appellant, it cannot be inferred that the sentencing judge failed to properly apply the first limb of the totality principle.
23 In our view, the appellant's proposed ground of appeal has no reasonable prospect of succeeding. Leave to appeal on that ground should be refused, with the consequence that the appeal is taken to have been dismissed.9
Orders
24 For the above reasons, leave to appeal on the sole ground of appeal should be refused and the appeal should be dismissed.
1 In the case of either way offences, the penalty indicated is the maximum penalty which could have been imposed on indictment. See Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326.
2 See s 19(1ab) and s 19(1ac) of the Firearms Act 1973 (WA).
3 Section 34(2)(a) of the Misuse of Drugs Act 1981 (WA).
4Roffey v The State of Western Australia [2007] WASCA 246 [23] - [26].
5 See Labrook v The State of Western Australia [2016] WASCA 127 [34] - [40].
6 See the review of sentences in Rodi v The State of Western Australia [No 2] [2014] WASCA 233.
7Stagno v The State of Western Australia [2013] WASCA 166 [46].
8Rigney v The State of Western Australia [2008] WASCA 96.
9 Section 27 of the Criminal Appeals Act 2004 (WA).
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