Moodley v The State of Western Australia - [2020] WASCA 158

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MOODLEY -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 158
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   9 SEPTEMBER 2020
DELIVERED          :   24 SEPTEMBER 2020
FILE NO/S:   CACR 198 of 2019
BETWEEN:   DAMIAN TYLER MOODLEY
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BIRMINGHAM DCJ
File Number            :   IND KAR 16 of 2019

Catchwords:

Criminal law - Appeal against sentence - Offer to sell or supply a trafficable quantity of methylamphetamine in contravention of s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) - Whether sentence imposed infringed parity principle - Turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(c), s 34(1)(a)
Sentencing Act 1995 (WA), s 6(1), s 6(2), s 9AA

Result:

Leave to appeal granted
Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	S Vandongen SC
Respondent	:	A L Forrester SC

Solicitors:

Appellant	:	The Defence Lawyers
Respondent	:	Director of Public Prosecutions (WA)

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

Baker v The State of Western Australia [2020] WASCA 117
Gaskell v The State of Western Australia [2018] WASCA 8
Petrusic v The State of Western Australia [2020] WASCA 62
The State of Western Australia v Delaney [2020] WASCA 93

JUDGMENT OF THE COURT:

This is an appeal against sentence.
The appellant was convicted on his plea of guilty, entered on the second day of his trial, of one count on an indictment that between 24 May 2018 and 27 May 2018 at Nickol he offered to sell or supply a prohibited drug, namely methylamphetamine, to another, and that the offence involved a trafficable quantity of methylamphetamine, contrary to s 6(1)(c) read with s 34(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA).
On 2 December 2019, the appellant was sentenced by Birmingham DCJ to 4 years and 3 months' immediate imprisonment with eligibility for parole, to commence on 17 November 2019.[1]
[1] ts 16 - 17.
The appellant relies on one ground of appeal being that the sentence imposed infringed the parity principle. The question of whether leave to appeal on this ground should be granted was referred to the hearing of the appeal. This ground was supported by five particulars, one of which alleged that the sentencing judge erroneously found that the sentence imposed on the appellant's co‑offender had been reduced for totality. The respondent conceded that his Honour made this alleged error, and that the error was not only capable of affecting the sentence imposed upon the appellant, but, having regard to his Honour's sentencing remarks, it clearly did affect that sentence.[2]
[2] Respondent's answer, par 13; WAB 24.
As we will explain, the respondent's concession was correctly made. A material express error having been established, this court must re‑exercise the sentencing discretion afresh. We would resentence the appellant to 2 years and 8 months' immediate imprisonment. We would order that the appellant be eligible for parole. The sentence should be taken to have taken effect on 17 November 2019.

The facts

The appellant did not dispute the facts which were read to the sentencing judge in open court. His Honour incorporated those facts by reference into his sentencing remarks.[3] They may be summarised as follows.
[3] ts 10.
On 25 May 2018, the appellant went to an address in Nickol (a suburb in Karratha) which was occupied by the co‑accused, Ashley Thomas Easthope. There, in Mr Easthope's presence, the appellant offered to sell to a person, who turned out to be an undercover police officer, 28 g of methylamphetamine for $14,000.
On 26 May 2018, the appellant returned to the Nickol address and again offered to supply to the same person 28 g of methylamphetamine.
The conversations between the appellant and the undercover officer were covertly recorded. These conversations, along with incriminating text messages exchanged between the appellant and the undercover officer, were heard and read by the sentencing judge.

The sentencing remarks

The sentencing judge was aware that, on 18 January 2019, Mr Easthope was convicted on his pleas of guilty of two counts of selling methylamphetamine (counts 1 and 3) and one count of aggravated offering to sell methylamphetamine (count 2) and sentenced by Petrusa DCJ for these offences. Count 2 is the same offence as that committed by the appellant (the common offence). The other offences committed by Mr Easthope are, for present purposes, irrelevant. Mr Easthope was sentenced by Petrusa DCJ, in respect of the common offence, to 2 years' imprisonment. Birmingham DCJ had regard to Petrusa DCJ's sentencing remarks.
In respect of the issue of parity, Birmingham DCJ found:
(a)the appellant was more culpable than Mr Easthope because it was the appellant who, unlike Mr Easthope, had the capacity to contact and deal with the person who would supply the methylamphetamine;[4]
(b)unlike Mr Easthope, who was a user/dealer of illicit drugs, the appellant's motive for committing the offence was 'purely commercial';[5]
(c)Mr Easthope was older and had a more significant criminal history than the appellant;[6]
(d)the sentence imposed on Mr Easthope followed 'his very early plea'[7] for which Petrusa DCJ made a reduction of 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA); and
(e)Petrusa DCJ reduced the sentence imposed on Mr Easthope for the common offence 'for totality purposes'.[8]
[4] ts 11, 16.
[5] ts 11, 16.
[6] ts 15.
[7] ts 15.
[8] ts 15. Also, a little earlier his Honour said that Mr Easthope's sentence was adjusted for issues concerning totality (ts 15).
No issue is taken with the correctness of (a) ‑ (d) above. However, it is apparent from the sentencing remarks of Petrusa DCJ that her Honour did not reduce the sentence that she imposed on Mr Easthope for the common offence for reasons of totality. Instead, her Honour took totality into account in sentencing Mr Easthope by ordering that one of the offences committed by Mr Easthope (count 3) be served concurrently with another offence (count 1).[9]
[9] Transcript, The State of Western Australia v Easthope, ts 35.
As the respondent conceded, Birmingham DCJ erred in finding that Petrusa DCJ reduced the sentence that she imposed on Mr Easthope for the common offence for reasons of totality. It is also clear that this error was material as Birmingham DCJ used the finding to differentiate the sentence that he imposed on the appellant from that imposed on Mr Easthope by Petrusa DCJ. As particular (d) of ground 1 has been made out and the material express error has been established, it is unnecessary to resolve the other particulars set out in the ground of appeal. This court must now proceed to resentence the appellant.

The resentencing

The appellant is to be resentenced in accordance with the facts as found by Birmingham DCJ. Of course, a relevant consideration for this court is the parity principle. We have had regard to Petrusa DCJ's sentencing remarks with respect to Mr Easthope.
The legal principles applicable to the parity principle are well established and were recently summarised by this court in Petrusic v The State of Western Australia.[10] We incorporate into these reasons, without repetition, this statement of principles.
[10] Petrusic v The State of Western Australia [2020] WASCA 62 [46] ‑ [50].
Section 6(1) of the Sentencing Act 1995 (WA) requires that a sentence must be commensurate with the seriousness of the offence. Section 6(2) of the Sentencing Act provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence (including the vulnerability of any victim of the offence); any aggravating factors and any mitigating factors.
Until recently, the maximum statutory penalty for the offence committed by the appellant was 25 years' imprisonment and/or a fine of $100,000. However, the statutory penalty for the offence committed by the appellant has been increased, in respect of an offence contrary to s 6(1)(c) MDA involving a trafficable quantity of methylamphetamine, to imprisonment for life. A trafficable quantity of methylamphetamine is 28 g or more.[11]
[11] See s 7(2)(a) of the Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017 (WA), which commenced on 18 September 2017.
The appellant was subject to the statutory penalty of life imprisonment. When Parliament increases the statutory penalty for an offence, its new view of the gravity of the offence must be taken into account in deciding the appropriate sentence. An increase in the statutory penalty for the offence is an indication that sentences for that offence should be increased. However, this does not necessarily mean that in every case there will be a discernible increase in the penalty imposed. This is because the penalty to be imposed in an individual case will not only depend on the statutory penalty, but also on all of the relevant facts, matters personal to the individual offender, and the relevant sentencing considerations.[12]
[12] The State of Western Australia v Delaney [2020] WASCA 93 [24] ‑ [25].
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking, within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will invariably be subsidiary considerations, but they are not irrelevant. All of these propositions are well-established by the case law.
We have had regard to the factors relevant in assessing the seriousness of an offence of offering to sell a prohibited drug set out in Tirkot v The State of Western Australia.[13]
[13] Tirkot v The State of Western Australia [2018] WASCA 41 [52] ‑ [53].
The appellant had the contacts within the local community to provide him with the 28 g of methylamphetamine which was offered to the undercover police officer. The offence was committed over two days, demonstrating a degree of persistence. It was committed for commercial gain.
The offence of offering to sell or supply a prohibited drug to another person is complete even if the offeror did not, or did not intend to, sell or supply a prohibited drug. The offence is completed upon the offeror making an offer to sell or supply a prohibited drug with the intention that the offer be regarded by the offeree as genuine. Consistently with the appellant's guilty plea, his Honour found that the appellant intended that the offeree regard the offer as genuine.
Neither the State nor the appellant made any submission at the sentencing hearing or before this court as to whether the appellant actually intended to sell or supply, or had the actual capacity to sell or supply, the methylamphetamine to the undercover police officer. The evidence only established that the appellant had connections within the community in Karratha who may have had the capacity to supply 28 g of methylamphetamine. In these circumstances, and having regard to the recent decision of this court in Baker v The State of Western Australia,[14] the appellant is to be resentenced on the basis that he intended to sell or supply the methylamphetamine in accordance with the terms of the offer, but was denied the opportunity of doing so before his arrest.
[14] Baker v The State of Western Australia [2020] WASCA 117 [57] ‑ [62].
The most significant mitigating factor was the appellant's youth. At the time of the offending he was 21 years of age. While it could not be said that the appellant was a person of prior good character having regard to his criminal history, he is well‑regarded by those who know him and appears to have support in the community. This points favourably towards his prospects of rehabilitation. At the hearing of the appeal, the court was informed that the appellant had engaged in, or attempted to engage in, a number of rehabilitative courses while in prison. This is to be encouraged. However, matters personal to the appellant have only limited weight because the major sentencing considerations for offences of the kind committed by the appellant are general and personal deterrence.
The appellant entered his plea of guilty on the second day of his trial. Pursuant to s 9AA of the Sentencing Act, his Honour gave a reduction of 5% for the plea. While perhaps generous, in all of the circumstances, we would make the same reduction for the appellant's very late plea of guilty.
There is no evidence of remorse on the part of the appellant.
It was conceded by senior counsel on behalf of the appellant that, when all of the relevant circumstances are considered, the appellant's overall culpability was greater than that of Mr Easthope. In our opinion, the concession taken by senior counsel for the appellant was correct having regard to Petrusa DCJ's sentencing remarks and, in particular, to the matters referred to in [11(a)] ‑ [11(d)] of these reasons. Thus, the sentence to be imposed upon the appellant should be higher than the sentence imposed upon Mr Easthope.
Having evaluated all of the relevant facts and circumstances, and bearing in mind the parity principle, we would resentence the appellant to 2 years and 8 months' immediate imprisonment with eligibility for parole. The sentence should be taken to have taken effect on 17 November 2019.
We would note that application of the parity principle has had a moderating effect on the sentence we impose - without regard to the co‑offender's sentence we would have imposed a higher sentence.

Orders

The orders we would make are:
(1)Leave to appeal is granted.
(2)The appeal is allowed.
(3)The sentence imposed by Birmingham DCJ on 2 December 2019 is set aside and is substituted with a sentence of 2 years 8 months' immediate imprisonment with eligibility for parole that is taken to have taken effect on 17 November 2019.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
24 SEPTEMBER 2020