Mrsa v The State of Western Australia
[2018] WASCA 217
•7 DECEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MRSA -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 217
CORAM: BUSS P
BEECH JA
PRITCHARD JA
HEARD: 21 NOVEMBER 2018
DELIVERED : 7 DECEMBER 2018
FILE NO/S: CACR 190 of 2018
BETWEEN: JAMES DEKLAN MRSA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: DAVIS DCJ
File Number : IND 233 of 2018
Catchwords:
Criminal law and sentencing - Offences of possession of MDMA with intent to sell or supply - Whether judge erred in not giving significant discount for remorse - Whether sentence of 2 years' immediate imprisonment for possession of 200 MDMA tablets with intent to sell or supply was manifestly excessive
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)
Result:
Application for extension of time refused
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr T F Percy QC & Mr S Nigam |
| Respondent | : | Ms K C Cook |
Solicitors:
| Appellant | : | Nigams Legal Pty Ltd |
| Respondent | : | The Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Franklin v The State of Western Australia [2017] WASCA 102
Kirkup v The State of Western Australia [2018] WASCA 102
Merais v The State of Western Australia [2018] WASCA 54
Rowsell v The State of Western Australia [2015] WASCA 2
The State of Western Australia v Baldini [2015] WASCA 39
The State of Western Australia v Higgins [2008] WASCA 157
The State of Western Australia v Wilson [2015] WASCA 119
Tirkot v The State of Western Australia [2018] WASCA 41
Wadeson v The State of Western Australia [2018] WASCA 171
JUDGMENT OF THE COURT:
Introduction
The appellant was convicted on his pleas of guilty to two counts of supplying the prohibited drug known as MDMA or ecstasy. He was sentenced to a term of 2 years' immediate imprisonment on the more serious offence, count 2, and to a total effective sentence of 2 years 6 months' immediate imprisonment.
The appellant appeals, out of time, against his sentence on two grounds. He contends in ground 2 that the judge erred in failing to give a significant discount on account of his remorse. Further, he alleges in ground 1 that the term of 2 years' imprisonment on count 2 is manifestly excessive as to length.
For the reasons set out below, there is no merit in either ground. The appellant's applications for an extension of time and leave to appeal must be refused and the appeal must be dismissed.
The facts
There was and is no dispute as to the facts.
On 9 April 2017, the appellant was approached at a nightclub by a man who, unknown to the appellant, was an undercover operative (the UCO). After some discussion, the UCO asked the appellant if he would get him some pills, to which the appellant agreed.
Subsequently, the appellant met the UCO and exchanged drugs for cash. This occurred on three occasions, the first of which was the subject of a charge in the Magistrates Court and which was to be dealt with separately.[1]
[1] At the hearing of the appeal, counsel informed the court that the charge in the Magistrates Court had ultimately been discontinued: appeal ts 2.
The appellant and the UCO exchanged SMS messages on 9, 16 and 18 May 2017, arranging a sale of 50 tablets for an agreed price of $1,100.
On 19 May 2017, the appellant met with the UCO, as arranged, and supplied him with 50 MDMA tablets in exchange for $1,100. The tablets had a total weight of 11.2 g and were 7% MDMA. That supply was the subject of count 1.
There were further telephone and SMS communications between the appellant and the UCO on 23 May 2017. There were also communications via Wickr on that day and on 24 May 2017. The gist of the communications was an arrangement for the appellant to supply 200 tablets of MDMA for a price ultimately agreed to be $3,800.
On 25 May 2017, the appellant met with the UCO and supplied him with 200 MDMA tablets in exchange for $3,800. The tablets weighed a total of 44.6 g and were 8% MDMA. This supply was the subject of count 2.
Personal circumstances
The appellant was 22 when he committed the offences and 23 when he was sentenced.
The appellant is one of three children born to his parents. He also has two older half‑brothers. His parents divorced when he was about 9 or 10 years of age. He and his sister spent part of the week with each of their parents. When the appellant began high school, he began to live permanently with his mother.
At around this time, the appellant's mother began a new relationship. Subsequently, the appellant's mother's new partner was abusive towards her and was imprisoned for assaults on her. As a result, the appellant's mother was placed on a witness protection program which created significant instability in the appellant's life and caused him to be separated from his father.
The appellant did well at primary school, but tended to struggle in high school. He graduated from high school in 2011.
After leaving school, the appellant worked in a number of areas including labouring, telecommunications and as a roof plumber. Current and past employers provided references attesting to the appellant being a good employee and a hard worker. The appellant wrote a letter to the sentencing judge (the letter) to which further reference is made below. The appellant said, in the letter and to the author of his psychological report, that his passions were photography and media, and travelling, and that his ambition was to combine the two. The appellant had travelled overseas and made videos which had been uploaded on social media. The appellant had been contracted by companies to create on‑line content.
The appellant had, prior to sentencing, successfully applied for a job as a travel consultant. However, that had been put on hold because of the charges the subject of this appeal.
At the time of sentencing, the appellant had been in a relationship for three years. His partner remained supportive of him.
The sentencing judge described the appellant as a healthy, health‑conscious man who regularly attends the gym. When asked about mental health by the author of the psychological report, the appellant described experiencing anxiety and a number of depressive symptoms. The appellant had begun counselling with a psychologist in January 2018.
By the time of sentencing, the appellant had cut ties with his former drug dealing and drug using associates who had been in his social circle.
Psychological report
As we have mentioned, there was a psychological report before the sentencing judge.
Relevantly to ground 2, the psychological report included the following observations and findings concerning the appellant's attitude to, and explanation for, his offending:
15.… However, he justified his offending through claims that he wanted to assist the person seeking the drugs and minimised his responsibility by viewing himself as taking a mediating role, rather than a drug dealer role. …
16.… [The appellant] stated that he did not think of the impact of his behaviour on the community at the time, despite being aware of the negative impact of drugs on people’s lives. He could not explain why he was not able to apply his knowledge and avoid committing the offences.
17.… [T]he impression gained was that [the appellant] had been preoccupied with presenting in an overly positive manner and being concerned with how he was portrayed. He lacked responsibility for his offending behaviour and claimed that he did not consider the severity of his offences at the time. Given his ability to function at work and in school, his claimed lack of foresight and problem solving ability at the time he offended is questionable …
18.… [The appellant] appeared to have concealed uncomfortable feelings and sought connection by superficial means, such as by seeking approval for his online image, physical appearance and through the number of acquaintances that he had rather than the quality of such relationships. …
Proceedings before the sentencing judge
At a very early stage in the plea in mitigation, the sentencing judge brought her view concerning the letter to defence counsel's attention. Her Honour said that the letter suggested that the appellant continued to justify what he had done and that his remorse was more for the consequences for him and did not reflect genuine insight into his offending and the harm that it had done.[2] The following exchange occurred:[3]
[2] ts 8.
[3] ts 7 ‑ 9.
DAVIS DCJ: Now, Ms Fisher, I've got to say something at the outset. I read your client's letter to me and it just made me angry. This is what he says. He says he knew what he did was wrong. He says this:
I can confidently say that if I knew what I was contributing to or the severity of it, I would not have done so. There is no justifying what I did whatsoever. However, I don't believe the things that happened would have transpired if it wasn't for the initial request from the UCO.
FISHER, MS: Yes.
DAVIS DCJ: The undercover operative. I'm sorry, it beggars belief that anyone would agree to provide anyone who's not a drug user and I understand Mr Mrsa is not ‑ ‑ ‑
FISHER, MS: No.
DAVIS DCJ: ‑ ‑ ‑ would go out of his way to provide ecstasy tablets or MDMA to anyone.
FISHER, MS: So ‑ ‑ ‑
DAVIS DCJ: And not just once, three times. I mean, I'm sentencing him for two counts. I don't know what's happened with the first matter. I presume that's in the Magistrates Court, is it?
FISHER, MS: Yes, I believe it is.
DAVIS DCJ: So it shows me that he's drug dealing and he's a drug dealer. It's not uncharacteristic for him and he's still trying to blame the undercover operative. I'm sorry, I'm just cross.
FISHER, MS: We've had this exchange, my office and Mr Mrsa, to see exactly what's going on in terms of his understanding. And this was inevitably going to have to be an issue to be addressed because it's also touched upon in the psychological report -
DAVIS DCJ: Yes.
FISHER, MS: ‑ ‑ ‑ and the pre‑sentence report.
DAVIS DCJ: He's still justifying what he's done and as far as I can tell, the remorse is he's more concerned about the consequences for him and his image than he is – it's not genuine remorse in the sense of insight into his offending and a recognition of the harm that he's done to the wider community.
FISHER, MS: Now, your Honour, the defence had a suspicion that you might be concerned as to whether or not that's the case. And on the face of it given, to use a colloquial expression his apparent duck‑shoving in terms of responsibility if I could use that term, we would understand why your Honour might think there's a lack of remorse. And so I would hope that the defence would have an opportunity now to take you through various aspects of the contents of the reports and the materials, the references that might take you down a different path because on the face of it we agree.
DAVIS DCJ: Well, I've read his letter and his letter is all about him.
…
DAVIS DCJ: Sorry, I'm going to have to stand this matter down because I am so worked up by having read his letter ‑ ‑ ‑
FISHER, MS: Certainly.
DAVIS DCJ: ‑ ‑ ‑ I'm not in a position to sentence at the moment.
FISHER, MS: Certainly, your Honour.
DAVIS DCJ: I've never seen such an extraordinary letter from an offender.
FISHER, MS: Could I perhaps take you through the background? It might shed some light on that. It might just soften your Honour's understanding as to where Mr Mrsa really is in all of this, because we understand that on the face of it your Honour would understandably be concerned about exactly what insight he has and what level of responsibility he's taking, but the defence has had ample opportunity, as have the authors of the reports, to speak to Mr Mrsa about this issue, and we have thrashed it out with him to work out exactly what he is thinking, to drill down exactly to what the issue is.
DAVIS DCJ: Well, the psychologist has the same issues that I have.
FISHER, MS: Yes. Well, it's against a background, though, of this. This is something the defence considers might assist your Honour, and this is the personality and diagnostic assessment. So before I get into the facts and the background as to how he comes to be here - and obviously it's through his own actions that he's here, so let's just for a minute now - it needs to be properly submitted by the defence that regardless from what your Honour may take from his letter, he understands that it is his actions that has caused him to be here, but this ‑ ‑ ‑
DAVIS DCJ: Well, he says that in his letter, but he still tries and justifies what he does. (emphasis added)
Defence counsel then made detailed submissions concerning the psychological report and what it said as to why the appellant had committed the offences.[4]
[4] ts 9 ‑ 14.
Defence counsel then submitted that:
(1)the appellant was naïve and did not appreciate the seriousness of what he was doing;[5] and
(2)the appellant's motive was approval: the 'driving force' was the appellant's desire to ingratiate himself with a new friend (that is, the UCO).[6]
[5] ts 12.
[6] ts 14.
The appellant provided a number of references from family, friends and his partner. Counsel made detailed submissions concerning the content of a number of the references, submitting that the references showed that all those close to the appellant confirmed his genuine remorse.[7] Counsel submitted that the appellant was ashamed of what he had done and that, whatever else was to be taken from the letter, it confirmed that this was so.[8] Counsel acknowledged that the appellant had difficulty processing why he did it and that, consequently, there was 'an element of externalising from time to time' in the appellant's language.[9] Counsel emphasised that the appellant's conduct demonstrated that he had turned himself around and was doing all he could to be a better person.[10]
[7] ts 24 ‑ 28.
[8] ts 29.
[9] ts 29.
[10] ts 29.
At the conclusion of the hearing on 18 May 2018, the judge adjourned sentencing to the following Monday, 21 May.
At the commencement of the hearing on 21 May 2018, prior to the judge's sentencing remarks, defence counsel informed the judge that the appellant had asked her to apologise for the content of his letter and that the appellant wanted to emphasise that 'he understands he has no one else to blame but himself for the predicament he's in'.[11]
[11] ts 40.
Sentencing remarks
The judge referred to the fact that the appellant had told the authors of both the pre‑sentence report and the psychological report that he sold the drugs as a mediator or facilitator to help the person looking for the drugs.[12] The judge also referred to an aspect of the appellant's letter previously discussed with defence counsel, as follows:[13]
You've also written a letter to me apologising for your actions and you say this:
I can confidently say that if I knew what I was contributing to or the severity of it I would not have done so. There is no justifying what I did whatsoever. However, I don't believe the things that happened would have transpired if it wasn't for the initial request from the UCO.
[12] ts 41.
[13] ts 41.
The judge referred to counsel's submissions summarised at [24] above. The judge observed that she had read the statements in the prosecution brief, the relevant SMS exchanges and the recorded conversations between the appellant and the UCO. The judge found that what she had read and heard established the opposite of what the appellant had said to the authors of the reports and his counsel.[14]
[14] ts 42.
The judge outlined the evidence, and her observations on it, in considerable detail.[15] It is not necessary to outline her Honour's observations and findings in this regard, as none are challenged.[16] Her Honour came to the following unchallenged conclusions:
1.The judge was satisfied beyond reasonable doubt that the appellant was the principal offender in the drug dealing: he was not a mediator, he was the drug dealer who supplied the drugs in exchange for cash.[17]
2.The judge rejected the suggestion that the appellant was naïve and motivated by a desire to ingratiate himself with a new friend. The judge was satisfied beyond reasonable doubt that the appellant appreciated the seriousness of what he was doing and was not driven by any desire to ingratiate himself with the UCO.[18]
[15] ts 42 ‑ 54.
[16] Appeal ts 4.
[17] ts 54.
[18] ts 54.
The judge made the following findings concerning whether, and to what extent, the appellant was remorseful, the italicised conclusion of which is challenged by ground 2:[19]
I had a lengthy discussion with your counsel last Friday about whether or not you have expressed remorse which, if you had, is another mitigating factor.
Remorse is a concept which is not to be confused with sorrow or regret at being caught. Taking steps to change your lifestyle knowing that you are facing imprisonment is also not remorse. What must be demonstrated is concrete evidence of contrition and that really has to come from you.
Your counsel took me through a number of references from a number of people. They are all recorded in the transcript of last Friday's hearing. I'm not going to go through them again. Your counsel submitted that the people who are close to you and have provided references think that you have expressed remorse.
From what is in the psychologist's report and in your letter, although you have said you were sorry and remorseful and you are disappointed in your actions, it is apparent that you are still justifying your actions and you are still blaming the undercover operative.
You also made assertions about your involvement in this offending, which on my review of the objective evidence for the reasons I've already given I am unable to accept. Your letter also makes it clear that your real concerns are for the consequences for you, your planned photography and videography career, and your image.
In all of the circumstances, the reduction of your sentence on the ground of remorse will not be a significant one. (emphasis added)
[19] ts 58.
The judge outlined relevant principles concerning sentencing for serious drug offences. Her Honour had no hesitation in concluding that the only appropriate sentence was one of immediate imprisonment.[20]
[20] ts 60.
The judge discounted the appellant's sentence on each count by 20% pursuant to s 9AA of the Sentencing Act 1995 (WA).[21] The judge made further reductions for the appellant's youth, for the facts that he had shown some remorse and taken some steps to rehabilitate himself, and his other personal circumstances, including the absence of any relevant record.[22]
[21] ts 60.
[22] ts 60.
The judge considered the appropriate term of imprisonment on count 1 to be 12 months, and on count 2, 2 years. For totality reasons, the judge reduced the sentence on count 1 to 6 months, ordering that it be served cumulatively on count 2. Thus, the total effective sentence was 2 years 6 months.[23]
[23] ts 61.
The judge gave detailed reasons for her decision not to suspend the sentence or place the appellant on a pre‑sentence order.[24] As there is no challenge on appeal to this conclusion, it is not necessary to detail her Honour's reasons in this respect. As to remorse, the judge observed that she had sentenced the appellant on the basis that he had shown some remorse, but no proper recognition of the harm to the wider community in what he had done.[25]
[24] ts 61 - 62.
[25] ts 61.
The appellant was made eligible for parole.[26]
[26] ts 62.
Grounds of appeal
The appellant advances two grounds of appeal:
(1)The sentence imposed on count 2 was manifestly excessive having regard to the appellant's youth, favourable antecedents, the plea of guilty and the circumstances of the offence.
(2)The sentencing judge erred in sentencing the offender on the basis that he should not be afforded any significant discount for remorse.
The appellant requires an extension of time to appeal, having lodged his appeal notice more than four months after he was sentenced. It is convenient to turn immediately to the merits of the grounds, to explain why both grounds are without merit. We begin with ground 2, as it alleges express error.
Ground 2: appellant's submissions
The appellant's submissions in support of ground 2 may be summarised as follows:
(1)There was ample information before the sentencing judge as to the appellant's remorse, including:[27]
(a)the remorse and acceptance of responsibility that could be inferred from the appellant's fast‑track plea;
(b)the number of references that spoke to the appellant's changes of attitude in various respects and the remorse that was clearly conveyed to the authors of those references;
(c)the steps the appellant had taken to dissociate himself from his drug taking and dealing peers; and
(d)his good behaviour on bail.
(2)The judge incorrectly interpreted the letter as evincing a lack of remorse. In fact, the letter sought only to offer some explanation as to the appellant's offending behaviour and should have been construed in the context of the other evidence of the appellant's remorse.[28]
(3)The learned sentencing judge erred by sentencing the appellant on the basis that he should not be afforded any significant discount for remorse.[29]
[27] Appellant's submissions [58], [61].
[28] Appellant's submissions [66].
[29] Appellant's submissions [55], [65]; appeal ts 3, 6 - 7.
The merits of ground 2
If remorse is to be mitigating, it requires a realisation by the offender that what they did was morally wrong and a sign of some sorrow for the impact or consequences of the offence.[30] Remorse is not to be equated with sorrow for being caught or regret on the part of the offender that they face imprisonment or some other kind of sanction.[31] A plea of guilty is not assumed to be indicative of remorse.[32] A sentencing court does not have to accept an offender's assertion of remorse if it is put in issue by the prosecutor or if, as in this case, the court indicates that it may not be prepared to accept it.[33] The offender bears the onus of establishing remorse on the balance of probabilities.[34] In determining whether an offender is remorseful, a sentencing judge is entitled to have regard to the offender's conduct as a whole.[35]
[30] Rowsell v The State of Western Australia [2015] WASCA 2 [51].
[31] Rowsell [51].
[32] Rowsell [16].
[33] Rowsell [17], [52].
[34] Rowsell [17], [52].
[35] Rowsell [17].
The judge found that the appellant had exhibited some remorse[36] and that the appellant was to be given some discount for remorse, but not a significant one.[37] No error is revealed in that approach. In our opinion, on the whole of the material before the sentencing judge, it was well open to her Honour not to be satisfied that the appellant should be given a significant discount for remorse.
[36] ts 60, 61.
[37] ts 58, 60.
The appellant's first submission set out at [39] above does not assist him. The existence of some evidence of remorse does not compel a judge to accept that an offender is remorseful. The judge is entitled, indeed obliged, to consider all the material before the court which bears on the existence and extent of an offender's remorse. Still less does the existence of some evidence of remorse require a sentencing judge to conclude that a significant discount for remorse is appropriate.
The sentencing judge was entitled to take into account the letter in assessing the existence and extent of the appellant's remorse. We do not accept that the judge erred in interpreting the letter as evincing a lack of remorse. The appellant's lengthy letter said very little to demonstrate insight into the consequences of his offending on the community. Rather, the letter dealt at length with the adverse consequences of his arrest and possible imprisonment for the appellant and his family. At the hearing before the sentencing judge, counsel for the appellant properly acknowledged as much.[38]
[38] ts 8, 9, italicised at [22] above.
Further, the appellant made assertions in the letter, echoed in the sentencing submissions made on his behalf, which were not consistent with his proper recognition of responsibility for his offending. He asserted that:
(1)he did not believe that the things that happened would have happened if it were not for the initial request from the UCO;
(2)he 'truly believed that [he] was helping somebody out and gaining a new friendship'; and
(3)he did not realise the severity of what he was contributing to and, if he had known it, he would not have done what he did.
As explained above, the judge rejected the appellant's assertions as to his motive and as to his lack of awareness of the seriousness of what he was doing. There is no challenge to the judge's findings in this respect.
Given those unchallenged findings, the judge rightly concluded that the appellant's assertions in the letter, and through defence counsel, as to his motive and lack of awareness of the seriousness of his offending significantly undermined the extent of his remorse.
The judge did not overlook what was said in the references relied on by the appellant. The judge rightly concluded that the weight to be given to those references was diminished by the appellant's continuing attempts to justify his actions, blame the UCO to some extent, and deny his appreciation of the seriousness of his offending.
It is well established that the major sentencing considerations for offences of dealing in dangerous drugs are general and personal deterrence, and that matters personal to an offender will almost always be subsidiary considerations, although they are not completely irrelevant.[39]
[39] See, for example, The State of Western Australia v Wilson [2015] WASCA 119 [26].
In all the circumstances, in our view, it was well open to the judge to conclude that the appellant should not be given a significant reduction in sentence on account of remorse.
For these reasons, ground 2 is without merit.
Ground 1 - manifest excess
Ground 1 asserts that the length of the individual sentence of 2 years' immediate imprisonment imposed on count 2 was manifestly excessive, taking into account the circumstances of the offending and the appellant's personal circumstances. There is no challenge to the type of sentence, to the sentence imposed for count 1, or to the accumulation of the two sentences.[40]
[40] Appeal ts 7, 8.
The appellant emphasises the following features of the circumstances of his offending:[41]
(1)The low purity of the drugs.
(2)The absence of evidence that the appellant was dealing in the drugs for personal financial gain.
(3)The fact that the appellant was to be sentenced on the basis of his dealings with the UCO only, there being no evidence of sales to any other party.
(4)The fact that the drugs did not make their way into the wider community.
(5)The fact that the drugs were not, to the knowledge of the appellant, likely to pose a heightened risk to the welfare of their end consumer(s).
(6)The lack of any drug dealing indicia, including any money or further drug stock, located at the appellant's house at the time it was searched.
[41] Appellant's submissions [46]; appeal ts 8.
The appellant also emphasises the following aspects of his personal circumstances:[42]
(1)His fast‑track plea of guilty.
(2)His relative youth, being 22 at the time of the offence.
(3)His prior good character and favourable antecedents.
(4)The steps he had taken at the time of sentencing to dissociate himself from any drug taking or drug dealing peers in his social group.
(5)His strict compliance with his bail conditions.
[42] Appellant's submissions [46]; appeal ts 7 - 8.
The appellant relies on the following comparable cases as supporting the conclusion that his sentence on count 2 was manifestly excessive: Kirkup v The State of Western Australia;[43] The State of Western Australia v Baldini[44] and Wadeson v The State of Western Australia.[45]
[43] Kirkup v The State of Western Australia [2018] WASCA 102.
[44] The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198.
[45] Wadeson v The State of Western Australia [2018] WASCA 171.
Was the sentence on count 2 manifestly excessive?
The following principles relevant to appeals on grounds of manifest excess are well established:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.
(2)A ground of appeal alleging that a sentence is manifestly excessive asserts an implied error. In determining whether a sentence is manifestly excessive it is necessary to examine it having regard to: (1) the maximum sentence prescribed by law for the relevant offence; (2) the standards of sentencing customarily observed with respect to that offence; (3) the place which the criminal conduct occupies on the scale of seriousness of offences of the kind; and (4) the personal circumstances of the offender.
(3)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(4)When this court dismisses an appeal against sentence, and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
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. The degree of purity is often regarded as significant. That is because it can be presumed that the greater the quantity and the purity, the greater harm may be done to the community.[46] 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. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.[47]
[46] The State of Western Australia v Wilson [25].
[47] The State of Western Australia v Wilson [26].
MDMA is a harmful illicit drug which has the same high level of seriousness as methylamphetamine, cocaine and heroin.[48]
[48] The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 [111] - [121]; Tirkot v The State of Western Australia [2018] WASCA 41 [73].
The maximum penalty for count 2 was 25 years' imprisonment or a fine of $100,000, or both.[49]
[49] Misuse of Drugs Act 1981 (WA), s 34(1)(a), as at the time of the offending.
The appellant's offending involved commercial drug dealing in which the appellant was the principal offender and not, as he claimed, a mediator.[50] His offending in relation to count 2 was not an isolated offence or an aberration in that, by then, the appellant had committed count 1. The appellant evidently had access to sources with substantial quantities of MDMA. Contrary to the appellant's assertions, he understood the seriousness of what he was doing in selling MDMA.
[50] ts 54.
These features of the appellant's offending substantially limit the extent to which the matters highlighted by the appellant, set out in [52](2) ‑ (6), reduced the seriousness of his offending in relation to count 2.
The appellant's submissions emphasise his mitigating factors, including his plea of guilty, his youth, his prior good character and the steps he had taken since his offending. There is no doubt that the appellant had a number of mitigating factors in his favour. However, in sentencing for drug dealing offences, matters personal to the offender have less significance than might otherwise be the case. Regrettably, the commission of drug dealing offences by young offenders exhibiting some or all of prior good character, an early plea of guilty, remorse, family support, positive steps towards rehabilitation and no significant risk of reoffending, is all too common.[51]
[51] Tirkot [61] and the cases there referred to in footnote 45.
The comparable cases on which the appellant relies do not support a conclusion that the appellant's sentence on count 2 was manifestly excessive. Three cases are insufficient to establish a range of sentences customarily imposed.[52] Moreover, when this court dismisses an appeal against sentence, and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range of sentences that could be imposed on a proper exercise of the sentencing discretion. Consequently, implied error is not shown simply by pointing to one or two cases in which offending of similar seriousness by an offender with similar antecedents received a lesser sentence, or by pointing to one or two cases in which more serious offending by an offender with similar antecedents received a similar sentence.[53]
[52] See, for example, Franklin v The State of Western Australia [2017] WASCA 102 [35].
[53] Merai v The State of Western Australia [2018] WASCA 54 [56].
Further, bearing in mind the particular facts and circumstances of the offending and offenders, in the cases on which the appellant relies and in this case, and that there is no single uniquely correct sentence, the sentences imposed in those other cases are broadly consistent with the sentence for count 2.
We accept that the drugs the subject of ground 2 were of low purity. Nevertheless, taking into account:
(1)the maximum sentence of 25 years' imprisonment;
(2)the circumstances of the appellant's offending, including the matters referred to in [59] above;
(3)the appellant's personal circumstances; and
(4)the standards of sentencing customarily imposed for offending of this kind;
the sentence of 2 years' immediate imprisonment cannot be said to reveal implied error. The sentence was not unreasonable or plainly unjust. It was within the range of sentences open on a proper exercise of the sentencing discretion.
For these reasons, there is no merit in ground 1.
Conclusion
For the reasons we have given, in our opinion, there is no merit in either ground of appeal. That being so, the application for an extension of time to appeal should be refused.
We would make the following orders:
1.The application for an extension of time to appeal is refused.
2.Leave to appeal on grounds 1 and 2 is refused.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE BEECH7 DECEMBER 2018
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