Moreton v The State of Western Australia
[2011] WASCA 258
•29 NOVEMBER 2011
MORETON -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 258
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 258 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:7/2011 | 14 SEPTEMBER 2011 | |
| Coram: | McLURE P BUSS JA MAZZA J | 29/11/11 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application by the State to adduce additional evidence granted Leave to appeal refused on grounds 2 and 3 Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | DANIEL ROBERT MORETON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal Appellant convicted after trial of one count of possessing methylamphetamine with intent to sell or supply Sentence of 5 years' immediate imprisonment with parole eligibility 27.3 g with a purity of 16% Appellant a well-organised, low to mid-level dealer Appellant also a user Very little by way of mitigation Whether sentence manifestly excessive |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(4)(a) Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a) |
Case References: | Bellissimo v The Queen (1996) 84 A Crim R 465 Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 Colangelo v The State of Western Australia [2004] WASCA 294 Coleski v The State of Western Australia [2008] WASCA 260 Fernandes v The State of Western Australia [2009] WASCA 227 Ly v The Queen [2007] NSWCCA 28 Lynch v The State of Western Australia [2011] WASCA 243 Pop v The Queen [2000] WASCA 283; (2000) 116 A Crim R 398 Quach v The Queen [1999] WASCA 210 R v Baldock [2010] WASCA 170; (2010) 269 ALR 674 Smith v The State of Western Australia [2010] WASCA 150 Swains v The State of Western Australia [2007] WASCA 251 The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 The State of Western Australia v Johnson [2010] WASCA 187 The State of Western Australia v Toothill [2007] WASCA 236 The State of Western Australia v Tran [2008] WASCA 183 The State of Western Australia v Wynne [2008] WASCA 195; (2008) 188 A Crim R 502 Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MORETON -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 258 CORAM : McLURE P
- BUSS JA
MAZZA J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BIRMINGHAM DCJ
File No : IND KAR 7 of 2010
Catchwords:
Criminal law - Appeal - Appellant convicted after trial of one count of possessing methylamphetamine with intent to sell or supply - Sentence of 5 years' immediate imprisonment with parole eligibility - 27.3 g with a purity of
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16% - Appellant a well-organised, low to mid-level dealer - Appellant also a user - Very little by way of mitigation - Whether sentence manifestly excessive
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)(a)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a)
Result:
Application by the State to adduce additional evidence granted
Leave to appeal refused on grounds 2 and 3
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Ms H Prince
Respondent : Mr J McGrath
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bellissimo v The Queen (1996) 84 A Crim R 465
Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152
Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49
Colangelo v The State of Western Australia [2004] WASCA 294
Coleski v The State of Western Australia [2008] WASCA 260
Fernandes v The State of Western Australia [2009] WASCA 227
Ly v The Queen [2007] NSWCCA 28
Lynch v The State of Western Australia [2011] WASCA 243
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Pop v The Queen [2000] WASCA 283; (2000) 116 A Crim R 398
Quach v The Queen [1999] WASCA 210
R v Baldock [2010] WASCA 170; (2010) 269 ALR 674
Smith v The State of Western Australia [2010] WASCA 150
Swains v The State of Western Australia [2007] WASCA 251
The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119
The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302
The State of Western Australia v Johnson [2010] WASCA 187
The State of Western Australia v Toothill [2007] WASCA 236
The State of Western Australia v Tran [2008] WASCA 183
The State of Western Australia v Wynne [2008] WASCA 195; (2008) 188 A Crim R 502
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
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1 McLURE P: I agree with Buss JA that the appeal should be dismissed. I can shortly state my reasons. Miller JA's reasons in Bosworth v The State of Western Australia (2007) 175 A Crim R 49 [41] are frequently relied on as support for or against a claim of manifest excess. Its limitations in that regard have previously been identified: Lynch v The State of Western Australia [2011] WASCA 243 [11] - [12]; The State of Western Australia v Johnson [2010] WASCA 187 [21]; Fernandes v The State of Western Australia [2009] WASCA 227 [14].
2 A sentence of 5 years' imprisonment for the offence of being in possession of 27.3 g of methylamphetamine of a purity of 16% is high but not manifestly excessive. There were no mitigating factors in the appellant's favour whether by way of plea, matters personal to him, such as age or antecedents, or otherwise. The appellant pleaded not guilty. The offence was not a one-off aberration but part of the appellant's role as a low to mid-level drug dealer. Moreover, the offence was committed whilst the appellant was on bail and he continued dealing in drugs after the date of the offence for which he was sentenced. It was appropriate in the circumstances to give significant weight to the need for personal deterrence.
3 BUSS JA: The appellant was convicted, after a trial in the District Court before Birmingham DCJ and a jury, on one count in an indictment which alleged that on 2 July 2009, at Nickol, the appellant 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).
4 On 25 November 2010, the trial judge imposed a sentence of 5 years' immediate imprisonment. A parole eligibility order was made.
5 The appellant appeals to this court against sentence.
The circumstances of the offending
6 On 2 July 2009, the appellant was a passenger in a motor vehicle that was stationary on a verge adjacent to his home in Thistle Loop, Nickol.
7 Police officers approached the vehicle and spoke to the driver and the appellant. The police officers noticed on the ground, next to the vehicle, a cigarette packet, a blue container and a used syringe.
8 The cigarette packet contained two clipseal bags, which appeared to have small traces of methylamphetamine, and three cigarettes. The blue
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- container had eight satchels containing a white powder which was later analysed and found to be methylamphetamine. The total weight of the methylamphetamine in the eight satchels was 27.3 g, with a purity of 16%. Each of the eight satchels contained about 3.5 g of the drug.
9 The police officers also found $1,600 cash concealed in the vehicle.
10 The appellant denied any knowledge of the drugs found next to the vehicle. He lied to the police about the $1,600 cash. The appellant sought to explain the cash as a payment he had received for installing some airconditioning equipment at a house in Samson. He presented the police with a false invoice. The occupier of the house in Samson gave evidence that no airconditioning equipment had ever been installed at the house by the appellant or his company.
11 On the evening of 2 July 2009, the police seized the appellant's mobile telephone. Later, text messages on the telephone were analysed. The analysis revealed that the appellant was involved in the sale and supply of illicit drugs.
12 On 1 September 2009, police officers spoke to the appellant at his house in relation to the events of 2 July 2009. By 1 September 2009, DNA testing had disclosed the presence of the appellant's DNA profile on one of the clipseal bags found in the cigarette packet and on the lid of the blue container.
13 On 1 September 2009, after speaking with the appellant, the police officers conveyed him to a police station. During the journey to the station the police officers noticed that the appellant had another mobile telephone. The police officers stopped the vehicle. When they attempted to seize the telephone, the appellant threw it away. The telephone was recovered. An analysis of text messages on the telephone established that between 2 July 2009 and 1 September 2009 the appellant had continued to deal in illicit drugs.
The trial judge's sentencing remarks
14 The trial judge said, in his sentencing remarks, that the appellant's involvement in the sale and supply of illicit drugs was 'part of a commercial operation' and that the appellant was 'seemingly a bit beyond the normal street dealer' (ts 32). His Honour referred, in this context, to one of the text messages on the appellant's mobile telephones which included 'a dialogue obviously warning [the appellant] of the existence of police carrying out searches in the area' (ts 32).
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15 The drugs involved in the offending for which the appellant was being sentenced had a value in excess of $7,000.
16 His Honour said there was no doubt that the appellant was 'beyond the lower end of dealing and clearly involved in a commercial operation' (ts 32).
17 The trial judge observed that a 'significant aggravating factor', for sentencing purposes, was that when the appellant offended on 2 July 2009 he was on bail in relation to another charge of possessing methylamphetamine with intent to sell or supply it to another. This pending charge related to an offence that occurred on 26 November 2008. His Honour summarised the circumstances of the 26 November 2008 offence, as follows:
You were staying at [an] address [in Karratha] while the usual occupant was in prison. After initial entry you were seen by the police to drop three clipseal bags when asked to move from the chair you were sitting in. The bags were later weighed and found to contain 3.37 grams and .13 grams of methylamphetamine respectively. A third bag appeared to be new and was empty. The police searched you and located two further clipseal bags containing .14 grams and .12 grams of methylamphetamine.
During the search of the house they located a quantity of new clipseal bags, the digital scales in the desk drawers where you were sitting. A police scanner was also operating on the kitchen bench. You were interviewed during the search and admitted possession of the drugs, scales and clipseal bags, stating they were for your own use, the scales being used to weigh your own drugs. You denied selling or intending to sell the drugs in your possession. The total weight was 3.76 grams (ts 32).
18 On 14 October 2009, the appellant was convicted of possession, with intent to sell or supply, of the drug found by the police on 26 November 2008. He was sentenced to 8 months' immediate imprisonment.
19 The trial judge said it was significant that, as at 2 July 2009, the appellant was in possession of a large quantity of unused clipseal bags in addition to the 27.3 g of methylamphetamine (ts 33).
20 His Honour then made these findings:
In the circumstance I am satisfied beyond reasonable doubt that this offence was part of a broader commercial enterprise and you possessed the substance with intent to distribute it commercially. In making that finding I rely on the trafficable quantity of methylamphetamine of 27.3 grams at 16 per cent purity, 13 times the deemed intent to sell or supply limit in
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- schedule 5 pursuant to section 11A of the Misuse of Drugs Act. I further rely on the number of clipseal bags found.
I further also rely on the text messages [that] passed between you and others dealing with the sale of methylamphetamines. It's an aggravating factor that this offence was committed at a time when you were then on bail in relation to another drug-related offence. It demonstrates a lack of understanding and acknowledgment of the seriousness of your conduct. Indeed, the fact that during the period from July to September when it was apparent that you had been identified as the principal suspect you continued to deal with serious drugs shows a complete disregard for the law in relation to the [sale] and supply of drugs (ts 33).
21 His Honour then referred to the appellant's personal circumstances and his prior criminal record.
22 The appellant was born on 1 March 1970. He was aged 39 years at the time of the offending and 40 when sentenced.
23 The appellant had previously been convicted of numerous offences but none of them, except the drug offence of which he was convicted on 14 October 2009 and an offence of driving a motor vehicle while his licence was under suspension of which he was convicted on 19 April 2007, had resulted in a term of imprisonment. The prior offences included a number of traffic offences, breaches of violence restraining orders, possessing prohibited drugs, possessing smoking implements, stealing, possession of unlicensed ammunition, possession of stolen or unlawfully obtained property, a breach of a community based order and a breach of a bail undertaking.
The State's application to adduce additional evidence in the appeal
24 The appellant was arrested on 1 September 2009. As I have mentioned, on 14 October 2009 he was convicted of possessing methylamphetamine, with intent to sell or supply (the relevant offence having been committed on 26 November 2008), and was sentenced to 8 months' immediate imprisonment.
25 The appellant was held in custody between 1 September 2009 and 22 February 2010, when he was released on short-term parole, in respect of the conviction on 14 October 2009.
26 At the sentencing hearing before the trial judge, the appellant's counsel (who was not his counsel in this appeal) informed his Honour that the appellant had undertaken regular urinalysis while he was on parole and that 'there were no issues there' (ts 24). His Honour took this into
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- account in considering whether to make a parole eligibility order (ts 37). The information provided by counsel was incorrect.
27 The State has made an application in this appeal to adduce additional evidence in relation to the incorrect information given to the trial judge by the appellant's counsel. The appellant does not oppose the application. In my opinion, the application should be granted. The additional evidence is relevant to ground 3 of the appeal and it is proper that the matter about which the trial judge was misled be corrected so that this court is in possession of accurate information about the appellant, his record of offending and his personal circumstances.
28 The additional evidence comprises a letter dated 20 April 2011 from the Sentence Information Unit of the Department of Corrective Services to the Office of the Director of Public Prosecutions (WA). The letter discloses, relevantly:
(a) On 14 October 2009, the appellant was sentenced to 8 months' immediate imprisonment for the offence I have mentioned.
(b) On 22 February 2010, the appellant was released on short-term parole.
(c) On 13 April 2010, the parole order was cancelled by the Prisoners Review Board. The reasons for the cancellation were, relevantly, that the appellant had provided a 'positive urinalysis to amphetamines and methylamphetamine on 6 April 2010' and he had been charged with the offence the subject of this appeal.
(d) On 16 April 2010, the appellant was returned to custody in respect of the offence for which he had been on short-term parole.
(e) On 16 June 2010, the appellant was released from custody upon his having completed the sentence of 8 months' immediate imprisonment.
29 The appellant was on bail between 16 June 2010 and 25 November 2010, when he was convicted of the offence the subject of this appeal.
The grounds of appeal
30 The appellant relies on three grounds of appeal. The grounds (without the supporting particulars) read:
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- 1. The learned sentencing Judge erred in the exercise of his sentencing discretion by imposing a sentence that was manifestly excessive in all the circumstances of the offence and matters personal to the appellant.
2. The learned sentencing judge erred in law and in fact in viewing the appellant's offending as purely commercial in character and in failing to take into account a relevant consideration viz., evidence that the appellant was a user/dealer including evidence of syringes and bags with traces of the drug on them found at the scene all of which had the appellant's DNA on them.
3. The learned sentencing Judge erred in law and in fact in failing to take into account a relevant consideration viz., the appellant's successful efforts to rehabilitate himself when determining the appropriate length of the term of imprisonment.
31 On 27 March 2011, Mazza J granted leave to appeal on ground 1 and referred the application for leave to appeal on grounds 2 and 3 to the hearing of the appeal.
The merits of ground 1
32 The maximum penalty for the offence of possession of a prohibited drug with intent to sell or supply it to another is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the Misuse of Drugs Act.
33 The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. See Bellissimo v The Queen (1996) 84 A Crim R 465, 471. 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. See Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [67] - [70]; Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [50]; Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [52]. The degree of purity is often regarded as significant. See The State of Western Australia v Tran [2008] WASCA 183 [9]. Matters personal to an offender will almost always be given reduced weight. See Bellissimo, (469); Tulloh [12], [43], [46].
34 When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is
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- necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. See The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302, where Steytler P (McLure & Miller JJA agreeing) said [19]:
As to customary sentencing standards, caution is needed when trying to determine the level of severity of a particular sentence by comparison with those imposed in other cases. That is because there will inevitably be differences in the circumstances of offenders and offences: Tulloh [46] (McLure J, Murray J concurring); Ziino v The State of Western Australia [2007] WASCA 222 [25] (Owen JA, Wheeler & Miller JJA concurring). However, it is helpful to determine whether a general range of sentences can be discerned for like offences by reviewing similar cases, in an attempt to achieve consistency in sentencing: Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 [12] (McLure JA); Ziino [25] (Owen JA, Wheeler & Miller JJA concurring).
In cases involving smaller quantities of methylamphetamine (between 3 grams and 65 grams), sentences (where appropriate converted in accordance with the post-transitional provisions) have ranged from between 2 and 5 years. Most cases involved pleas of guilty. Examples from the last 10 years are: Vodanovic v The Queen, unreported; CCA SCt of WA; Library No 960056; 9 February 1996 (24.5 grams of 2 per cent purity - 2 years); Bellissimo (1996) 84 A Crim R 465 (20.8 grams of 6 per cent purity - 3 years 10 months); Leonard v The Queen, unreported; CCA SCt of WA; Library No 990152; 29 March 1999 (sale of 22.4 grams of 8.5 per cent purity amphetamines - 3 years 4 months); Nelis v The Queen [2000] WASCA 194 (three counts of selling and/or possession, including 54.75 grams of unknown purity - 4 years 8 months); Marchesano (2000) 116 A Crim R 237 (41.1 grams of 20 per cent purity and 1.36 grams of 20 per cent purity - 2 years 4 months); Watt v The Queen [2000] WASCA 354 (6.74 grams of between 18 - 22 per cent purity - 2 years 8 months); R v Weston [2000] WASCA 389 (41.77 grams of unknown purity - 1 year 8 months, suspended for 2 years); Mishal v The Queen [2001] WASCA 328 (20 grams of 2 per cent purity - 2 years); R v Hafner [2002] WASCA 211 (attempted sale or supply of 21.2 grams of 36 per cent purity - 4 years); Vogel v The Queen [2002] WASCA 261 (3.8 grams of 11 per cent purity and 2.86 grams of 37 per cent purity - 2 years); Marker v The Queen (2002) 135 A Crim R 55 (two counts, one of 53.9 grams of 41 per cent purity and one of 0.1 gram of 59.3 per cent purity respectively - 4 years 5 months); Hiron v The Queen [2003] WASCA 310 (over 120 Grams of varying purity in three counts
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- leading to a total term of 4 years 8 months' imprisonment); Hollingsworth v The Queen [2004] WASCA 73 (9.2 grams of between 3 - 5 per cent purity - 2 years, but concurrent with other offences and cumulative on sale of 29 grams of methylamphetamine, making a total of 5 years); Schlenka v The Queen [2004] WASCA 142 (12.7 grams of 47 per cent purity - 1 year 8 months' imprisonment); Samuel v The State of Western Australia [2004] WASCA 154 (6.25 grams of 25 per cent purity - 2 years, suspended for 2 years); Le v The Queen (2004) 147 A Crim R 269 (two counts involving methylamphetamine of respectively 6.94 grams of 81 per cent purity and 27.9 grams of 83 per cent purity - 2 years 1 month and 4 years 2 months cumulative); Wong v The State of Western Australia [2004] WASCA 286 (26 grams of 6 per cent purity - 2 years 6 months, but cumulative with other sentences); Colangelo v The State of Western Australia [2004] WASCA 294 (53.32 grams of varying purity - 4 years, but cumulative with other sentences); Olomi v The State of Western Australia [2004] WASCA 304 (64.48 grams with purity unknown - 2 years 8 months, cumulative on other sentences, but concurrent with a parole term); Pepper v The State of Western Australia (2005) 30 WAR 447 (3.5 grams of 56 - 62 per cent purity - 2 years, cumulatively with other sentences); and Samuels v The State of Western Australia [No 2] [2006] WASCA 222 (23.5 grams of 34 per cent purity - 5 years) [41].
- See also Smith v The State of Western Australia [2010] WASCA 150.
36 Sentencing ranges of the kind discussed in Bosworth, The State of Western Australia v Toothill [2007] WASCA 236 and Swains v The State of Western Australia [2007] WASCA 251 can provide only general guidance. See Coleski v The State of Western Australia [2008] WASCA 260 [16].
37 The guidance afforded by comparable cases is flexible rather than rigid. See Quach v The Queen [1999] WASCA 210 [27] (Ipp J, Wallwork & White JJ agreeing). The review of sentencing dispositions undertaken by Miller JA in Bosworth, and his Honour's observations about the range of sentences revealed by his review, do not establish a sentencing matrix. They do not fix an upper or lower limit.
38 The mere fact that a sentence is within the range of other sentences imposed for similar offences 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 that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. See Ly vThe Queen [2007] NSWCCA 28 [20] (Adams J, Howie & Price JJ agreeing); R v Baldock [2010] WASCA 170; (2010) 269 ALR 674 [147] (Buss JA).
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39 In the present case, the trial judge took into account considerations favourable to the appellant, notably, his personal circumstances (ts 33 - 34, 36), but there was very little by way of mitigation.
40 The appellant pleaded not guilty and went to trial. His defence was that the methylamphetamine found by the police in the cigarette packet and the blue container were not his drugs. He did not know anything about them.
41 The trial judge accepted, at the sentencing hearing, that the appellant was a drug user. The evidence before his Honour on the issue of addiction was, however, sparse. The appellant's counsel told his Honour that a pre-sentence report was unnecessary and, as a result, no pre-sentence report was obtained. Counsel made these submissions about the use of illicit drugs by the appellant and his partner:
Your Honour, his life collapsed and before he knew it he was in the throws of an addiction which persisted despite his attempts to free himself of it until September 1, [2009]. That's when he was arrested for this offence.
…
One of the reasons he had such a difficulty with drugs is that he started a relationship with a second partner but she was part of the drug community herself so it was doomed from the start. They took drugs together and they had three children together. When he was arrested she picked up those children and disappeared to New Zealand. This was last year (ts 21).
42 The submissions of the appellant's counsel on this point were not controverted by the prosecutor, and the trial judge did not indicate that he was unwilling to accept the submissions.
43 The trial judge noted, in his sentencing remarks, that he had 'regard to the matters raised by [the appellant's] counsel in mitigation' (ts 36), and that '[h]aving regard to the matters detailed by [the appellant's] counsel' (ts 37) a parole eligibility order would be made. His Honour, in examining the appellant's prior criminal record, referred to his prior offences for 'possession' of prohibited drugs (as distinct from possession with intent to sell or supply), and noted that this history had escalated from possession of cannabis (ts 34).
44 Before this court, counsel for the appellant submitted that the sentence of 5 years' immediate imprisonment was manifestly excessive in that the appellant was a 'user-dealer'. He had not engaged in drug dealing solely for commercial reasons. It was submitted that although there was
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- 'an aspect of commerciality' (appeal ts 5), the appellant dealt in drugs 'predominantly' (appeal ts 7) to finance his addiction and the addiction of his partner.
45 In my opinion, there is no doubt that the trial judge was correct in stating that the appellant was involved in the sale and supply of illicit drugs as 'part of a commercial operation' (ts 32) and that his offending was 'part of a broader commercial enterprise' (ts 33). The appellant was in the business of drug dealing. This is the 'commercial' operation or enterprise to which his Honour was referring. His Honour relied (and was entitled to rely), in making this finding, on the quantity and purity of the drug seized by the police (27.3 g at 16%), the value of the drug (more than $7,000), the amount of cash found in the motor vehicle ($1,600), the record of communications on the appellant's mobile telephones before and after 2 July 2009, and the large quantity of unused clipseal bags in the appellant's possession. The appellant's motive or purpose for dealing in the drugs does not detract from the nature of the operation or enterprise. He was conducting a drug dealing business. His motive or purpose was to derive income. I am willing to infer from the sparse evidence that this income was then applied, to a reasonably significant (but unquantifiable) extent, in purchasing drugs for use by him and his then partner.
46 In my opinion, no error should be inferred from the sentencing outcome. The sentence of 5 years' immediate imprisonment was within the range of a sound exercise of the sentencing discretion.
47 The seriousness of the appellant's offending is apparent from the following:
(a) At the material time, the appellant was a well-organised, low to mid-level dealer. This is evident from the quantity and purity of the methylamphetamine, its value, the amount of cash concealed in the vehicle and the record of communications on the appellant's mobile telephone before 2 July 2009.
(b) The record of communications on the appellant's mobile telephones before and after 2 July 2009, and the large quantity of clipseal bags in his possession, demonstrate that the offence in question was not an uncharacteristic aberration. The appellant cannot be (and is not being) punished, in the context of the present offence, for this other conduct, but this other conduct emphasises the importance of personal deterrence as a sentencing consideration.
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- (c) The appellant pleaded not guilty and went to trial. Although this does not aggravate the seriousness of his offending, it does show an absence of remorse and an unwillingness to accept responsibility for his offending.
(d) The appellant committed the offence in question while he was on bail for another offence. This reveals a blatant disregard for the law. See Pop v The Queen [2000] WASCA 283; (2000) 116 A Crim R 398 [6] - [14] (Wallwork J), [87] - [90] (McKechnie J); Colangelo v The State of Western Australia [2004] WASCA 294 [25] (McKechnie J, Templeman & McLure JJ agreeing); The State of Western Australia v Wynne [2008] WASCA 195; (2008) 188 A Crim R 502 [95] (Miller JA, Steytler P & Murray AJA agreeing); The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 [165] (Buss JA). It underscores the need for personal deterrence.
(e) The appellant is not youthful. He does not otherwise have good character or antecedents. He was aged 39 years at the time of the offending and has numerous prior convictions, although, as I have mentioned, except for the drug offence of which he was convicted on 14 October 2009 and the offence of driving whilst under suspension, none of the prior offences resulted in a term of imprisonment.
48 The sentence imposed on the appellant was high, but I am not persuaded that it is manifestly excessive. In particular, when the sentence of 5 years' immediate imprisonment is evaluated in the context of the maximum penalty for the offence, the level of seriousness of the circumstances of the appellant's offending, the sentences customarily imposed for the offence and the appellant's personal circumstances, it is apparent that the sentencing outcome was not unreasonable or plainly unjust.
49 Ground 1 fails.
The merits of ground 2
50 The trial judge did not find that the appellant's offending was 'purely' commercial in character. Rather, he found that the appellant was involved in the sale and supply of illicit drugs as 'part of a commercial operation' (ts 32) and that his offending was 'part of a broader commercial enterprise' (ts 33). These findings related to the nature and character of the appellant's offending. He was in the business of drug dealing. As I have
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- mentioned, in the course of considering ground 1, his Honour was entitled to make these findings. They related to the existence of a commercial operation or enterprise and not to the appellant's motive or purpose in conducting it. Also, as I have mentioned, his Honour had regard to the matters raised by the appellant's counsel in mitigation including, relevantly, the submissions about the addiction of the appellant and his then partner to illicit drugs.
51 The appellant was not apprehended in possession of used syringes. The State did not run its case on the basis that the used syringe found near the cigarette packet and the blue container belonged to the appellant. A police officer gave evidence at trial that the used syringe did not appear to be as new as other items he located. The appellant's DNA was not found on the used syringe.
52 Also, although a mixed DNA profile was found on the lid of the blue container and the major partial profile matched the appellant's DNA, his DNA was recovered from only one of the clipseal bags in the cigarette packet.
53 Ground 2 is without merit.
The merits of ground 3
54 As I have mentioned, the appellant's counsel at the sentencing hearing (who was not his counsel in this appeal) misled the trial judge by informing his Honour that the appellant had undertaken regular urinalysis while on short-term parole and that 'there were no issues there' (ts 24). His Honour took this information into account when considering whether to make a parole eligibility order (ts 37).
55 The letter dated 20 April 2011 from the Sentence Information Unit to the Office of the Director of Public Prosecutions, which I have summarised at [28] above, reveals that the appellant had not made 'successful efforts to rehabilitate himself', as alleged in ground 3, while he was on short-term parole.
56 Any period of possible rehabilitation by the appellant was confined to the period of five months between 16 June 2010 (when he was released from custody upon completing the sentence of 8 months' immediate imprisonment) and 25 November 2010 (when he was sentenced for the offence the subject of this appeal). It is not apparent from the evidence before this court that the appellant did in fact make any material progress towards his rehabilitation during this five-month period. But, even if he
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- did, I am satisfied that this mitigatory factor would not, either alone or in combination with any other factor, justify this court interfering in the sentencing outcome. A different sentence should not have been imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA).
57 Ground 3 is without merit.
Conclusion
58 Leave to appeal should be refused on grounds 2 and 3, and the appeal should be dismissed.
59 MAZZA J: I agree that this appeal should be dismissed for the reasons stated by both McLure P and Buss JA.
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