Musulin v The State of Western Australia
[2020] WASCA 18
•17 FEBRUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MUSULIN -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 18
CORAM: MAZZA JA
BEECH JA
PRITCHARD JA
HEARD: 12 JUNE 2019
DELIVERED : 17 FEBRUARY 2020
FILE NO/S: CACR 192 of 2018
BETWEEN: PETER DOMENIC MUSULIN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: PETRUSA DCJ
File Number : IND 1063 of 2018
Catchwords:
Criminal law - Appeal against sentence - Drug offences - Whether sentence for possession of methylamphetamine with intent to sell or supply manifestly excessive - Where quantity of methylamphetamine a trafficable quantity - Impact of increase in maximum penalty for the offence on sentence - Whether total effective sentence infringes first limb of the totality principle
Legislation:
Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a)
Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017 (WA)
Sentencing Act 1995 (WA), s 32
Result:
Leave to appeal on each ground granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr S B Watters & Mr H W Glenister |
| Respondent | : | Mr J A Scholz |
Solicitors:
| Appellant | : | Felicity Cain, Barrister & Solicitor |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Abbott v The State of Western Australia [2018] WASCA 45.
Bui v The State of Western Australia [2014] WASCA 168.
Carlucci v The State of Western Australia [2019] WASCA 37.
Colangelo v The State of Western Australia [2004] WASCA 294.
Dann v The State of Western Australia [2006] WASCA 254.
Dao v The State of Western Australia [2007] WASCA 237.
Director of Public Prosecutions (Vic) v Dalgliesh [2017] HCA 41; (2017) 262 CLR 428.
Fernandes v The State of Western Australia [2009] WASCA 227.
Formica v The State of Western Australia [2013] WASCA 237.
HSV v The State of Western Australia [2020] WASCA 5.
Kabambi v The State of Western Australia [2019] WASCA 44.
Kobeissi v The State of Western Australia [2016] WASCA 188.
Lenton v The State of Western Australia [2017] WASCA 224.
Morcom v The State of Western Australia [2013] WASCA 31.
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120.
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600.
Nguyen v The State of Western Australia [2017] WASCA 35.
R v Pham [2015] HCA 39; (2015) 256 CLR 550.
Rigney v The State of Western Australia [2008] WASCA 96.
Samson v The State of Western Australia [2011] WASCA 173.
Schischka v The State of Western Australia [2015] WASCA 15.
Separovic v The State of Western Australia [2018] WASCA 36.
Tan v The State of Western Australia [2019] WASCA 112.
The State of Western Australia v Auckram [2013] WASCA 256.
The State of Western Australia v Littlefair [2013] WASCA 177.
The State of Western Australia v Nillson [2017] WASCA 68.
The State of Western Australia v Wilson [2015] WASCA 119.
Wilson v The State of Western Australia [2010] WASCA 82.
Wright v The State of Western Australia [2019] WASCA 183.
JUDGMENT OF THE COURT:
This is an appeal against sentence. The appellant requires leave to appeal. His application for leave was referred to the hearing of the appeal.[1]
[1] Order made by Mazza JA on 3 December 2018 (AB 4).
On 20 September 2018, the appellant was convicted, on his plea of guilty, of two offences. The first (count 1) was that on 21 February 2018, he had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply, and that the offence involved a trafficable quantity of that drug, contrary to s 6(1)(a) and s 34(1)(a) of the Misuse of Drugs Act 1981 (WA). The offence the subject of count 2 was that on 21 February 2018, the appellant was in possession of a sum of money totalling $125,305 in cash, which was reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA).
The appellant was sentenced to 7 years' imprisonment on count 1, and imprisonment for 1 year on count 2, to be served cumulatively on the sentence for count 1. The total effective sentence was thus 8 years' imprisonment. The appellant was made eligible for parole.
In two grounds of appeal, the appellant contends that the sentence imposed on count 1 was manifestly excessive, and that the total effective sentence, having regard to the overall criminality involved and in all the circumstances of the case, infringed the first limb of the totality principle.
For the reasons which follow, neither ground of appeal has been made out and the appeal should be dismissed.
The circumstances of the offence
On 21 February 2018, the police executed a search warrant on the appellant's home in Wanneroo. The appellant was located by police in his bedroom, where he was in the process of throwing items out of the window into the rear yard. Police searched the bedroom and found a clipseal bag on the floor of the bedroom containing methylamphetamine, and a tin containing two other clipseal bags with methylamphetamine inside them. Two sets of digital scales and two mobile phones were also found in the appellant's bedroom.[2]
[2] AB 70. One other set of scales, one mobile phone, and amounts of cannabis and methylamphetamine were found in the appellant's mother's bedroom, and she was charged with possession of those drugs with intent to sell or supply: AB 71.
The total amount of methylamphetamine seized was 178.2 g: 27.5 g of the drug was 68% pure, 111 g was 82% pure, and 39.7 g was 80% pure.
Police also located a large quantity of cash, some bundled in approximate amounts of $10,000, on the bedroom floor and elsewhere in the bedroom, and three further bundles of $50 notes in the yard. The total amount of cash seized from the appellant amounted to $125,305.
The appellant refused to tell police how he came to be in the possession of the drugs or the cash.
The appellant committed the offences in question whilst he was on parole for other offences.
The appellant's personal circumstances
The appellant was 36 years of age at the date of the offences, and when he was sentenced.
The appellant had a stable upbringing with his parents and siblings, and had positive peer groups. Although the appellant's parents were involved with drug use, they nevertheless provided the appellant with love and support.
The appellant has been in two serious relationships in the past, but was not in a relationship at the time of his sentencing. He has no children.
The appellant left school after completing year 10 and completed an apprenticeship as a boilermaker.[3] He had been fairly consistently employed, primarily in the construction industry, and was considered capable of obtaining employment upon his release from prison.
[3] AB 72; AB 110.
The appellant has an ongoing health condition which is managed by medication, and no mental health issues.
The appellant commenced using cannabis when he was about 20 years of age, following the loss of a close friend to suicide. He was using amphetamines by the age of 24, and quickly escalated to daily use. Although in the past he had been able to abstain from drug use for a time, he relapsed into drug use after the end of a five‑year relationship.
The appellant attributed the commission of the present offences to his desire to repay a considerable drug debt, but claimed that he had since distanced himself from association with those influences.
The appellant has a lengthy criminal record, including one prior conviction for possessing methylamphetamine with intent to sell or supply, numerous convictions for possessing drugs or drug paraphernalia, numerous convictions for receiving or possessing stolen property, two convictions for stealing a motor vehicle, multiple driving and traffic convictions, and numerous other convictions for offences such as breaching bail or breaching community based orders.[4]
[4] AB 77.
In a letter dated 15 September 2018, which was before the learned sentencing judge, the appellant expressed his remorse for the hurt and stress he had caused his family, and the flow-on effects of his offending on the community, and expressed his desire to develop strategies to avoid the triggers for drug addiction in the future, including by undertaking programmes whilst in prison.
The basis for the sentence imposed by the learned sentencing judge
The appellant claimed that the drugs and money found at his home did not belong to him, but that he was storing them for others as a means of repaying a drug debt. In contrast, the State sought to establish that the appellant was also engaging in drug dealing on his own behalf, by reference to text messages found on the appellant's mobile phone.
The learned sentencing judge did not find it necessary to make a finding as to whether the appellant was personally engaged in drug dealing over and above storing the drugs in question. Instead, the learned sentencing judge found that the appellant was aware that he was storing a considerable amount of drugs and money, and therefore appreciated that he was part of a large-scale drug distribution network and that he was thereby providing an indispensable link in the distribution of those drugs into the community. The learned sentencing judge found that the appellant's actions allowed those higher up in the chain of distribution to avoid detection and that he was a trusted person within that network. On that basis, the learned sentencing judge concluded that the appellant's criminality was high.[5]
[5] AB 71.
The learned sentencing judge noted that the maximum penalty for count 1 had increased to life imprisonment prior to the commission of this offence, and that by that increase the Parliament had determined that the offence of possession with intent to sell or supply 28 g or more of methylamphetamine was to be viewed more seriously than it had been previously, with the expectation that sentences imposed for offences of that kind would be 'firmed up'.[6]
[6] AB 72.
At the time the appellant committed the offences in question he was on parole for other serious drug offences. On 20 October 2016, he was sentenced to a total effective sentence of 3 years 6 months' imprisonment for offences including one count of being in possession of 16.3 g of methylamphetamine at 72% purity, with intent to sell and supply,[7] and for a further 21 offences, pursuant to s 32 of the Sentencing Act 1995 (WA), including offences related to the possession of drugs or drug paraphernalia, possession of a sum of cash reasonably suspected of being unlawfully obtained, receiving stolen property, firearms offences, stealing a motor vehicle, and a number of driving offences.[8] In so far as the offence of being in possession of methylamphetamine with intent to sell or supply was concerned, the appellant was sentenced on the basis that he was dealing in methylamphetamine 'at a commercial level',[9] to repay a drug debt and to fund his own drug use,[10] and that the offending was 'not an isolated transaction'.[11] He was described as a 'low level user/dealer who sold small quantities of the drug'.[12] He was made eligible for parole.
[7] AB 94.
[8] AB 88; AB 122.
[9] AB 111.
[10] AB 110.
[11] AB 112.
[12] AB 112.
The present offences were committed only four months and 22 days after the appellant was released on parole for those offences.
The appellant spent one day in custody following his arrest for the present offences, before his parole was cancelled, and he was thereafter detained in custody to serve the balance of his earlier sentence. The learned sentencing judge gave the appellant credit for that one day in custody.
The learned sentencing judge accepted that, to his credit, the appellant had been compliant with his supervision requirements, and appeared to have been drug free, during his release on parole. However, her Honour found that it was equally clear that whilst on parole, the appellant engaged in criminal conduct and had an ongoing association with those involved in the drug trade, which gave rise to concerns about his prospects of rehabilitation and the need for ongoing protection of the community from his offending. The learned sentencing judge was cautious about accepting the appellant's claims that he had now distanced himself from his association with those involved in the drug trade, given both his prior conduct, and his family environment, which had involved drug use and probably drug dealing.[13]
[13] AB 73.
The learned sentencing judge found that there was little by way of mitigation in the appellant's personal circumstances, apart from his plea of guilty. Her Honour noted that the appellant had pleaded guilty to the present offences at the first reasonable opportunity, but that he had been caught red-handed. Nevertheless, the learned sentencing judge gave the appellant the maximum discount of 25% for his plea of guilty.[14]
[14] AB 73.
The learned sentencing judge noted that the principle sentencing considerations in cases of the present kind were general and personal deterrence.[15] The learned sentencing judge found that the appellant's criminal record was one which was consistent with a person who had been involved in drug use and drug distribution over a sustained period of time. Her Honour found that personal deterrence was a relevant sentencing consideration in his case.[16]
[15] AB 72.
[16] AB 72.
The learned sentencing judge found that the appellant was an important and trusted member of a distribution network, and that his participation in the present offending was for commercial purposes, even if those were limited to extinguishing a pre-existing debt.[17] Her Honour found that a sentence that marked the community's condemnation of drug dealing was required.[18]
[17] AB 73.
[18] AB 74.
After taking into account the gravity of the appellant's offending and the statutory penalties for the offences, issues of totality (having regard to the overall criminality involved in all of the offences, including those for which the appellant was still serving a sentence at the time of his sentencing for these offences), matters personal to the appellant, and the discount for his plea of guilty, the learned sentencing judge sentenced the appellant to 7 years' imprisonment on count 1, and imprisonment for 1 year on count 2. Her Honour ordered that those terms of imprisonment be served cumulatively with each other, resulting in a total effective sentence of 8 years' imprisonment. The learned sentencing judge ordered that the appellant's sentence be served, concurrently with the term of imprisonment the appellant was then serving, and that he be eligible for parole.
The appellant was also declared to be a drug trafficker.[19]
[19] AB 74.
Grounds of appeal
The appellant advanced two grounds of appeal:[20]
[20] AB 6.
1.The sentence of seven years imprisonment imposed for count one was, in all the circumstances, manifestly excessive;
Particulars:
1.1 The plea of guilty;
1.2The appellant's antecedents;
1.3 The criminality involved;
1.4 Sentences imposed in, broadly, comparable cases.
2.The learned Judge erred in imposing a total effective sentence that infringed the first limb of the principle of totality, having regard to the overall criminality involved in the various offences, when viewed in their entirety, and in all the circumstances of the case, including those referable to the appellant.
The grounds of appeal assert implied, rather than express, error. The relevant principles are well established, and were summarised in Kabambi v The State of Western Australia:[21]
(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 a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)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.
(5)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.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[21] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Ground 1
We begin by outlining principles as to the significance of the recent increase in maximum penalty for the offence.
The maximum penalty for the offence in count 1 and the significance of its recent increase
The maximum penalty for the offence of possessing a trafficable quantity (that is, more than 28 g[22]) of methylamphetamine with intent to sell or supply[23] is life imprisonment.[24] That maximum penalty increased from the previous maximum penalty of 25 years' imprisonment as a result of amendments made by the Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017 (WA) (Amendment Act).
[22] Misuse of Drugs Act 1981 (WA) s 34(1A), and sch 7 item 8.
[23] Misuse of Drugs Act 1981 (WA) s 6(1)(a).
[24] Misuse of Drugs Act 1981 (WA) s 34(1)(a).
In the second reading speech for the Amendment Act, the Minister for Police, Mrs M H Roberts MLA, explained the rationale for the amendments made by the Bill as follows:[25]
The effects of methamphetamine on our community are just devastating. It has to stop. The community quite rightly expects tough action against methamphetamine dealers and traffickers. Our government will give police and the judiciary the tools they need to prevent and deter this trade.
This legislation implements our commitment to reduce the supply of methamphetamine by increasing penalties for drug traffickers. The penalties will be some of the toughest in the country. The bill targets methamphetamine dealers, manufacturers and suppliers further up the drug supply chain who feed lower-end street dealers and addicts. Specifically, the Misuse of Drugs Act 1981 is being amended to increase the maximum sentence of imprisonment to a life penalty. The amendments provide that a drug dealer who is caught with 28 or more grams of methamphetamine will now be subject to a maximum penalty of life imprisonment. This is an increase on the current maximum penalty of 25 years' imprisonment.
…
The devastating impact of methamphetamine must end. Our families and our communities cannot bear it any longer. This bill sends a strong message to drug dealers and traffickers - that they will feel the full force of the law. If they traffic methamphetamine in Western Australia, they will now face the prospect of a life sentence.
[25] Western Australia, Parliamentary Debates, Legislative Assembly, 16 May 2017, 95f - 96a (M H Roberts, Minister for Police).
The maximum penalty for an offence demonstrates Parliament's view of the gravity of the offence. An increase in the maximum penalty for an offence is an indication that the Parliament regards the offence as being of a more serious kind than was previously the case. The maximum penalty of life imprisonment demonstrates that Parliament now regards offending of the kind the subject of ground 1 as being of the most serious kind.
The sentencing principles which apply when the maximum penalty for an offence is increased have been discussed in a number of cases, and were recently summarised by this court in HSV v The State of Western Australia.[26]
[26] HSV v The State of Western Australia [2020] WASCA 5 [44] - [45].
If Parliament increases the maximum penalty for an offence, its new view of the gravity of the offence must be taken into account in deciding upon sentencing outcomes.[27] An increase in the maximum penalty is an indication that sentences for the offence in question should be increased.[28] Accordingly, any previously established sentencing ranges for the offence in question remain relevant as a guide, but will need to be considered bearing in mind the subsequent increase in the maximum penalty.[29]
[27] The State of Western Australia v Auckram [2013] WASCA 256 [122] (Buss JA, Mazza JA & Hall J relevantly agreeing), and see the cases cited by his Honour at [122].
[28] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [31] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ).
[29] Morcom v The State of Western Australia [2013] WASCA 31 [47] - [49] (Mazza JA, Martin CJ & Buss JA agreeing).
Generally speaking, sentences for offences of the kind for which the maximum penalty has been increased can be expected to increase over time in light of the increase in the maximum penalty. However, the increase in the maximum penalty does not necessarily mean that in every case there will be a discernible increase in the penalty imposed.[30] That is because the penalty imposed in an individual case will depend not only on the maximum penalty, but on all of the relevant facts, matters personal to the individual offender, and all relevant sentencing considerations.
[30] Morcom [49] (Mazza JA, Martin CJ & Buss JA agreeing).
In HSV, this court considered the effect of the increase in the maximum penalty for possession of a trafficable quantity of methylamphetamine to life imprisonment and said:[31]
Customary sentencing standards for offences involving commercial dealings in prohibited drugs, particularly methylamphetamine prior to the penalty increase, were referred to in Gaskell and Carlucci v The State of Western Australia and cases there cited. Prior to the increase in the maximum penalty for trafficking in methylamphetamine, the courts were already imposing significant sentences for the offence. As was noted in Zanon v The State of Western Australia, there are a number of cases (including some where the offender pleaded guilty) in which a total quantity of prohibited drugs of around 1 kg attracted sentences of 9 - 12 years' imprisonment.
It is established that the maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence and demonstrates the Parliament's view of the gravity of the offence. The maximum penalty must be taken into account in determining, in each particular case, the appropriate sentence. If the Parliament, by a legislative amendment, increases the maximum penalty for an offence, the Parliament's new view of the gravity of the offence must be taken into account in deciding upon sentencing outcomes. An increase in the maximum penalty for the offence is an indication that sentences for that offence should be increased.
Therefore, at the time of the appellant's offending, Parliament's view of the relative seriousness of possession of trafficable quantities of methylamphetamine was reflected in the maximum penalty of life imprisonment. That view is to be taken into account in assessing the criminality of the offending conduct … as part of the overall criminality of all the offences which is to be reflected in the total effective sentence. (footnotes omitted)
The appellant's submissions
[31] HSV [43] - [45].
The appellant submitted that the sentence of 7 years' imprisonment for count 1 was, in all of the circumstances, and in particular, bearing in mind the discount of 25% afforded for the appellant's plea of guilty, manifestly excessive.[32]
[32] Appellant's written submissions [40]; AB 11.
The appellant accepted that the maximum penalty for the offence in count 1 had increased, and did not dispute the statements of principle concerning the consequences of an increase in the maximum penalty for an offence. However, whilst accepting those statements of principle the appellant contended that 'the offending across both counts … did not warrant the terms that were imposed'. The appellant acknowledged that due to the increase in the maximum penalty there were 'few, if any, truly comparable cases dealt with at appellate level under that new regime.'[33]
[33] Appellant's written submissions [42]; AB 11.
In the end, the appellant's case on ground 1 had two planks. First, the appellant submitted that guidance could be discerned from a number of earlier cases (decided prior to the Amendment Act) which were said to be broadly comparable, namely Abbott v The State of Western Australia;[34] Kobeissi v The State of Western Australia;[35] and Separovic v The State of Western Australia.[36]
[34] Abbott v The State of Western Australia [2018] WASCA 45.
[35] Kobeissi v The State of Western Australia [2016] WASCA 188.
[36] Separovic v The State of Western Australia [2018] WASCA 36.
The appellant submitted that the offending in Abbott was broadly similar to the appellant's offending 'in that it concerned both drugs and money' and that it was 'relevant that the total effective sentence was only 11 years despite being largely more criminal in nature'.[37] He submitted that the offender in Abbott did not have the benefit of a guilty plea, and if a 25% discount had been applied (as it was in the appellant's case), the offender would have received a sentence similar to the appellant, despite the offending having involved a significantly greater amount of methylamphetamine.[38]
[37] Appellant's written submissions [52]; AB 12.
[38] Appellant's written submissions [53]; AB 12.
The appellant submitted that the appellant's personal circumstances were similar to that of the offender in Kobeissi in terms of their age, criminal history and substance abuse problems. However, he submitted that the offender in Kobeissi was a member of an outlaw motorcycle gang, and the overall offending was greater than in the case of the appellant. He submitted that 'even allowing for adjustments for totality, [the appellant's] sentence for count one does not sit easily alongside the sentence imposed for count one in Kobeissi'.[39]
[39] Appellant's written submissions [60]; AB 13.
In so far as Separovic is concerned, the appellant submitted that the offender received no discount for a plea of guilty and was found with substantially more methylamphetamine than he was. He submitted that although the offender in Separovic had slightly better antecedents, objectively her offending was significantly more serious in terms of the amount of methylamphetamine and her role in the drug trade, yet she received a sentence of 8 years 6 months' imprisonment for offending involving 1.042 kg of methylamphetamine, whereas the appellant's offending on count 1 resulted in a sentence of 7 years' imprisonment, after a 25% discount for his plea of guilty, in respect of 178.2 g of methylamphetamine.[40]
[40] Appellant's written submissions [68]; AB 14.
Secondly, counsel for the appellant submitted that the 'practical reality' is that the effect of an increase in the maximum penalty for an offence from 25 years' imprisonment to life imprisonment would be that it was 'those [sentences] at the very upper echelon … [which would be] impacted the most'.[41]
[41] Appeal ts 4.
Counsel acknowledged that the latter submission was a 'bold' one, and conceded that he was not aware of any authority that distilled that submission in writing.[42] Put another way, counsel acknowledged that he could not point to authority in support of his submission.
The State's submissions
[42] Appeal ts 5.
Counsel for the State submitted that the Parliament had 'made it very clear that the increase of the maximum penalty to life imprisonment for this offence should be reflected in a meaningful way, not in a 'trifling' way or by merely paying 'lip service' to the increase and the relevant principles'.[43]
[43] Respondent's written submissions [5]; AB 31.
The State submitted that the facts and circumstances of the appellant's offending were particularly serious, having regard to the quantity and purity of the methylamphetamine involved, the quantity of cash involved, the discovery of two mobile phones and sets of digital scales, his refusal to tell police how he came to be in the possession of the drugs and the cash, his prior offending, including for similar offences, and his commission of the offences whilst he was on parole for similar offences.
Counsel for the State submitted that, leaving to one side the increase in the maximum penalty, a number of cases supported the conclusion that neither the 7‑year term of imprisonment imposed in respect of count 1, nor the total effective sentence, were plainly unreasonable or unjust. The cases on which counsel for the State relied were: Bui v The State of Western Australia,[44] and the cases cited therein;[45] Colangelo v The State of Western Australia;[46] Dann v The State of Western Australia;[47] Dao v The State of Western Australia;[48] Rigney v The State of Western Australia;[49] Fernandes v The State of Western Australia;[50] Wilson v The State of Western Australia;[51] The State of Western Australia v Littlefair;[52] Formica v The State of Western Australia;[53] and the cases discussed therein and Lenton v The State of Western Australia.[54]
[44] Bui v The State of Western Australia [2014] WASCA 168.
[45] Bui [33] - [38].
[46] Colangelo v The State of Western Australia [2004] WASCA 294.
[47] Dann v The State of Western Australia [2006] WASCA 254.
[48] Dao v The State of Western Australia [2007] WASCA 237.
[49] Rigney v The State of Western Australia [2008] WASCA 96.
[50] Fernandes v The State of Western Australia [2009] WASCA 227.
[51] Wilson v The State of Western Australia [2010] WASCA 82.
[52] The State of Western Australia v Littlefair [2013] WASCA 177.
[53] Formica v The State of Western Australia [2013] WASCA 237.
[54] Lenton v The State of Western Australia [2017] WASCA 224.
Counsel for the State acknowledged that leaving to one side the increase in the maximum penalty, the authorities suggested that a sentence of 5 or 6 years' imprisonment might have been expected for an offence of the kind involved in count 1, without taking into account the impact of the particular circumstances of this case, namely that the offence was committed whilst the appellant was on parole, and the absence of any mitigating factors apart from the early plea of guilty.[55] However, he submitted that the sentence was not so high as to indicate an implied error, but for the particular circumstances of this case.[56]
The seriousness of the offending in the scale of seriousness for crimes of this kind
[55] Appeal ts 7.
[56] Appeal ts 10.
In our view, the circumstances of the present case establish that the appellant's offending constituted a very serious example of an offence of the kind in count 1, for three reasons.
First, the appellant was in possession of over six times the trafficable quantity of methylamphetamine, and most of it was of 80% purity or more. While the quantity of the drugs involved is not determinative, it is nevertheless a highly relevant factor in assessing the seriousness of the offending. While the appellant was sentenced on the basis that he was storing the drug for others, that role, in respect of such a large quantity of drugs and at a very high level of purity, sustained the finding made by the learned sentencing judge that he was clearly a trusted member of a distribution network. Those who securely store large quantities of drugs for others play a role in distribution networks not substantially less important than those who actually distribute the drugs to dealers, or those who sell the drugs to the ultimate users.
Secondly, the appellant engaged in the offending for commercial reasons. His culpability is not reduced by the fact that those reasons were limited to extinguishing a pre-existing drug debt.
Thirdly, the appellant engaged in the offending shortly after commencing parole for earlier drug offences, including possession of methylamphetamine with intent to sell or supply. In doing so he manifested a blatant disregard for the law, and demonstrated that he had not been deterred from reoffending by his earlier sentence. The fact that the appellant committed the present offences whilst on parole for earlier offences, including an offence for possession of methylamphetamine with intent to sell or supply, added significantly to the overall criminality of the offending, and confirms that a sentence directed to personal deterrence - manifesting in a longer sentence[57] - was required.
The appellant's personal circumstances
[57] cf Samson v The State of Western Australia [2011] WASCA 173 [12] (McLure P, Newnes JA agreeing).
There were no mitigating factors on which the appellant could rely, apart from the discount afforded for his plea of guilty. At 36 years of age, he did not have the benefit of youth. He was not of good character, and the offending was clearly not an isolated occurrence. The appellant's criminal record as a whole indicated that he had been involved in drug use and distribution (albeit on a less serious level than the present offences involved) for a number of years. While the appellant had the support of his family, and had expressed remorse, and a desire to avoid reoffending in the future, such personal matters are of limited weight in sentencing for drug offences of this kind.
The guidance provided by other cases
The general sentencing principles to be applied in cases of serious drug offending have been discussed in numerous cases. The major sentencing considerations for offences of dealing or trafficking in dangerous drugs 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 personal gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.[58]
[58] See, eg, Wright v The State of Western Australia [2019] WASCA 183 [26]; Carlucci v The State of Western Australia [2019] WASCA 37 [37].
We turn, first, to the authorities decided prior to the Amendment Act. In assessing these cases, the variation in the quantity and purity of methylamphetamine involved, plus the range of circumstances in which such offences are committed, and the impact of the totality principle when multiple offences are involved, mean that it is difficult to discern a range of sentences for all instances of the possession of a trafficable quantity of methylamphetamine with intent to sell or supply. Furthermore, the sentences imposed in these earlier cases were imposed before the increase in the maximum penalty effected by the Amendment Act.
In our view, the three cases referred to by the appellant do not assist him to establish an implied error in the present case. The differences in the facts, and thus in the criminality, of the offending mean that Abbott, Kobeissi and Separovic are not directly comparable, quite apart from the difference in the maximum penalty which was applicable in those cases.
Of the cases referred to by the State, in our view, Dao, Rigney, Wilson, Littlefair, Formica and Lenton bear some similarities to the present case, and provide some guidance. However, the criminality of the offending conduct in each of those cases was less than in this case, in some cases significantly so, having regard to the greater quantity of methylamphetamine, at a far higher level of purity, of which the appellant had possession; the appellant's lengthy criminal record; and the fact that he re‑offended whilst on parole for earlier drug offences. For example, in Wilson this court found that the term of 5 years' imprisonment imposed on an offender who pleaded guilty on the fast track to an offence of possessing 116 g of methylamphetamine of between 9% and 39% purity could not be said to be outside the range of sentences for such offending, and refused leave to appeal on the ground of manifest excess.
Carlucci v The State of Western Australia,[59] also provides some guidance. In that case, the offender was sentenced, on her plea of guilty, to four offences, including two counts (counts 1 and 4) of possession of methylamphetamine (108.7 g and 123.9 g respectively, all between 70% and 89% purity) with intent to sell or supply, one count of possessing $33,960 which was reasonably suspected of being unlawfully obtained (count 3), and one count of possession of MDMA with intent to sell or supply (count 2). Counts 1 and 4 were committed prior to the change in the maximum penalty effected by the Amendment Act. The offender was sentenced to 3 years' immediate imprisonment on count 1 and 5 years' imprisonment, to be served cumulatively, on count 4. The sentences for count 2 (1 year's imprisonment) and count 3 (2 years 6 months' imprisonment) were ordered to be served concurrently, resulting in a total effective sentence of 8 years' imprisonment. The offender was given a 15% discount for her plea of guilty, and the sentencing judge reduced the sentences he would have imposed on counts 1 and 4 having regard to totality considerations.
[59] Carlucci v The State of Western Australia [2019] WASCA 37.
On appeal, this court concluded that while the scale of the offender's drug distribution business was significant, her parlous circumstances at the time of the offending indicated that the cash the business generated for her personal benefit was limited, the offender's drug selling operation was less sophisticated than in a number of other cases, and the offender did not have a serious prior record and thus had some prospect of rehabilitation, with the result that the total effective sentence of 8 years' imprisonment was regarded as disproportionate to the overall criminality involved. While it did not disturb the individual sentences, the court concluded that the sentence for count 4 should begin after the offender had served 18 months of the sentence for count 1, resulting in a total effective sentence of 6 years 6 months' imprisonment.
These cases provide broad support for the proposition that, but for the increase in the maximum penalty, a sentence of between 4 years 6 months' imprisonment and 6 years' imprisonment might have been expected to have been imposed for offending of a comparable criminality to the offending which was the subject of count 1. Putting the increase in the maximum penalty to one side, these earlier comparable cases suggest that the sentence imposed on ground 1 was, at least, high. Counsel for the State conceded as much.[60]
[60] Appeal ts 7.
However, in our view, when the increase in the maximum penalty for the offence in count 1 is factored into the analysis, the sentence imposed on the appellant cannot be regarded as inconsistent with the sentences imposed in those earlier cases. In other words, any disparity between the sentence imposed in the present case, and the sentences imposed in comparable cases, is explicable by the increased seriousness with which offending of this kind is regarded since the enactment of the Amendment Act.
As already noted, the guidance provided by comparable cases is flexible rather than rigid. In the present case, the amendment to the maximum penalty diminishes the assistance that the comparable cases can provide in discerning implied error in the outcome. In our view, bearing in mind the significance of the increase in the maximum penalty, the comparable cases provide an insecure foundation to infer that 'there must have been some misapplication of principle'.[61]
[61] R v Pham [2015] HCA 39; (2015) 256 CLR 550 [28](7); Tan v The State of Western Australia [2019] WASCA 112 [73].
HSV is the only decision on an appeal against sentence for the offence of possession of a trafficable quantity of methylamphetamine with intent to sell or supply which has been decided by this court since the increase in the maximum penalty made by the Amendment Act. In HSV, the offender was convicted on his pleas of guilty to five offences. The most serious of the counts of which the offender was convicted (count 4) was for the possession of a trafficable quantity of methylamphetamine (977.82 g, between 69% and 80% purity) with intent to sell or supply. That offence was committed after the increase in the maximum penalty for that offence. The offender was also convicted on one count (count 1) of the sale or supply of 27.8 g of methylamphetamine of 72% purity, two other offences of possession of cocaine and MDA with intent to sell or supply (counts 2 and 3) and one count of possession of $33,075 in cash which was reasonably suspected of being unlawfully obtained (count 5). The offender, who came from a supportive family but did not have the benefit of youth, had employed a sophisticated system for avoiding detection, and was sentenced on the basis that he undertook a drug dealing business as the agent for another person, and received $5,000 per week, plus drugs for his own use, as compensation for his efforts.
The offender was sentenced to 9 years 6 months' imprisonment for count 4, and 3 years 6 months' imprisonment for count 1, to be served cumulatively. The sentences for the other offences (including 18 months' imprisonment for count 5) were ordered to be served concurrently. The total effective sentence was therefore 13 years' imprisonment. Those sentences involved the offender being given a 20% discount for an early plea of guilty, and a further discount of 20% on another basis. The appeal, on totality grounds, was dismissed. This court observed that there was no challenge, and in the circumstances there could be no challenge, to the individual sentence on count 4.
Self-evidently, one case does not establish a standard of sentencing. Furthermore, the criminality of the offending in HSV was clearly significantly higher than the criminality involved in the present case: more charges were involved, the operation was more sophisticated, the offender derived a significant ongoing commercial benefit as a result of his participation in the drug distribution operation, and the quantity of methylamphetamine involved was over five and a half times the quantity involved in the present case.
Nevertheless, HSV provides some limited guidance in the present case for two reasons. First, when the additional and substantial 20% discount given in HSV (over and above the 20% discount for the plea of guilty) is taken into consideration, the sentence imposed for count 4, and the total effective sentence in that case, support the conclusion that a higher sentence was imposed than would have been warranted prior to the Amendment Act.
Secondly, the criminality in the present case, whilst high, was not as high as the criminality involved in HSV. From that perspective, the sentence imposed on count 1, and the total effective sentence, in the present case, are broadly consistent with the sentence imposed in HSV.
Finally, we turn to the second plank of the argument advanced by counsel for the appellant in respect of the effect of the Amendment Act, namely that sentences at the 'very upper echelon' of seriousness would be 'impacted the most' by the increase in the maximum penalty.[62] That argument cannot be accepted. It was not supported by any authority. Moreover, as a matter of principle, there is no basis to conclude that an increase in the maximum penalty applicable to all offences of a particular kind would have an effect only in respect of sentences at the upper echelon of seriousness. The maximum penalty is a yardstick against which manifest excess is to be evaluated.[63] That consideration and the principles outlined in [39] ‑ [41] above demonstrate that the appellant's submission as to the limited effect of an increase in the maximum sentence cannot be accepted.
Conclusion in relation to ground 1
[62] Appeal ts 4.
[63] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [40]; Director of Public Prosecutions (Vic) v Dalgliesh [2017] HCA 41; (2017) 262 CLR 428 [10].
Having regard to:
(1)the maximum penalty for the offence in count 1;
(2)the seriousness of the offending the subject of count 1, and the place occupied by the criminal conduct in the scale of seriousness of offences of that kind;
(4)the general guidance provided by sentences imposed for broadly similar offending prior to, and since, the increase in the maximum penalty effected by the Amendment Act;
(5)the need for general deterrence in respect of the possession of trafficable quantities of methylamphetamine with intent to sell or supply;
(6)the need for personal deterrence in this case, having regard to the fact that offences were committed shortly after the appellant was released on parole for earlier drug offences, and to the appellant's lengthy criminal record, which involved other drug offences;
(7)the appellant's plea of guilty, for which there was a 25% discount;
(8)the appellant's personal circumstances; and
(9)all relevant sentencing factors and principles,
We are not persuaded that the sentence of 7 years' imprisonment imposed by the learned sentencing judge in respect of count 1 was unreasonable or plainly unjust.
In our view, the appellant has not established an implied error in respect of the sentence imposed for ground 1.
While we would grant leave to appeal on ground 1, the ground is not made out.
Ground 2
Ground 2 alleged that the total effective sentence of 8 years' imprisonment offended the first limb of the totality principle.
The appellant did not contend that the sentence of imprisonment for 1 year, which was imposed in respect of count 2, was manifestly excessive.[64]
[64] The maximum penalty for the offence in count 2 was imprisonment for 7 years' imprisonment: the Code s 417(1).
Instead, the appellant submitted that when proper regard was had to all relevant factors, and to comparable cases, the total effective sentence did not reflect the overall criminality involved in the offending. He submitted that the wholly cumulative nature of the sentence for count 2 resulted in a total term that was not proportionate to the overall criminal conduct.[65]
[65] Appellant's written submissions [73] - [74]; AB 15.
The appellant submitted that the sentence for count 2 should have been required to have been served entirely concurrently with the sentence for count 1.[66] The appellant submitted that the possession of the drugs, and the possession of the cash, comprised one continuing criminal enterprise.[67] Counsel for the appellant therefore submitted that the offences should have been regarded as part of the 'one transaction'[68] so that the sentence for count 2 should have been made wholly concurrent with the sentence for count 1.
[66] Appeal ts 6 - 7.
[67] Appellant's written submissions [74]; AB 15.
[68] Appeal ts 6.
In support of ground 2, and his contentions in relation to the total effective sentence, the appellant also relied on three cases said to be broadly comparable, namely Nguyen v The State of Western Australia;[69] The State of Western Australia v Nillson[70] and The State of Western Australia v Wilson.[71]
[69] Nguyen v The State of Western Australia [2017] WASCA 35.
[70] The State of Western Australia v Nillson [2017] WASCA 68.
[71] The State of Western Australia v Wilson [2015] WASCA 119.
None of those cases was sufficiently similar, factually, as to be directly comparable with the present case. On the other hand, the total effective sentence imposed in this case is broadly consistent with the total effective sentences imposed in the cases to which we referred at [62] ‑ [65], when the increased seriousness with which the offence in count 1 is now viewed is taken into account.
The appellant's case was not assisted by his reliance on the so‑called 'one transaction rule'. That 'rule' has been considered by this court on many occasions. In Schischka v The State of Western Australia, Martin CJ (with whom Buss P & Mazza JA relevantly agreed) summarised the operation of that 'rule' as follows:[72]
It is well established that the description of the principles grouped under this heading as a 'rule' is a misnomer, as they are nothing more than a working guide to the exercise of the sentencing discretion. Generally speaking, if the offences are all part of one multi-faceted course of criminal conduct which, taken together, constitutes a single invasion of the same legally protected interest, concurrency of sentences may be appropriate. However, the fact that the offences are closely connected in point of time, or even committed simultaneously, does not necessarily mean that they should be considered as a single transaction. Further, even if the offences are properly considered part of one transaction, the sentencing judge must always consider whether the requirement that the sentences imposed be proportional to the total criminality involved might demand cumulative or partly cumulative terms. (footnotes omitted)
[72] Schischka v The State of Western Australia [2015] WASCA 15 [25].
The offending the subject of count 2 added to the overall criminality of the appellant's conduct. A large sum of money was involved, which, by his plea, the appellant accepted was reasonably suspected of being unlawfully obtained. That offence was committed whilst he was on parole. Apart from his plea of guilty there were no mitigating factors.
In those circumstances, it was well open to the learned sentencing judge to order that the sentence for count 2 be served cumulatively with that for count 1, so that the total effective sentence properly reflected the additional criminality involved in count 2.
Having regard to our views in respect of the sentence imposed for count 1, we are not persuaded that the total effective sentence of 8 years' imprisonment, which resulted from the accumulation of the sentence for count 2, was plainly unreasonable or unjust.
We would grant leave to appeal on ground 2, but, for the above reasons, the ground is not made out.
Conclusion
The following orders should be made:
1.Leave to appeal on each ground is granted.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EH
Associate to the Honourable Justice Pritchard17 FEBRUARY 2020
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