Nembousse v The State of Western Australia
[2015] WASCA 68
•1 APRIL 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NEMBOUSSE -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 68
CORAM: McLURE P
MAZZA JA
HEARD: 16 MARCH 2015
DELIVERED : 1 APRIL 2015
FILE NO/S: CACR 204 of 2014
BETWEEN: EPHRAIM NEMBOUSSE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STEVENSON DCJ
File No :IND 1011 of 2014
Catchwords:
Criminal law - Leave to appeal against sentence - Totality - Manifest excess
Legislation:
Criminal Appeals Act 2004 (WA), s 27
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Sentencing Act 1995 (WA), s 32
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr A C Mcintosh & Mr R P Williamson
Respondent: No appearance
Solicitors:
Appellant: Rhett Williamson Barristers & Solicitors
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Aconi v The Queen [2001] WASCA 211
Benter v The State of Western Australia [2005] WASCA 245
Cohen v The State of Western Australia [No 2] [2007] WASCA 279
Giglia v The State of Western Australia [2010] WASCA 9
Guler v The State of Western Australia [2014] WASCA 83
Lee v The Queen (2004) 147 A Crim R 269
Monument v The State of Western Australia [2007] WASCA 239
Ngo v The State of Western Australia [2007] WASCA 221
Pham v The State of Western Australia [2011] WASCA 244
Sabau v The State of Western Australia [2010] WASCA 3
Tanner v The State of Western Australia [2013] WASCA 142
McLURE P: This is an application for leave to appeal against sentence.
On 13 November 2014 the appellant was convicted, on his pleas of guilty, of two counts of possession of a prohibited drug with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). On the same day, the appellant was also convicted, on his pleas of guilty, of 13 offences the subject of a notice under s 32 of the Sentencing Act 1995 (WA).
The facts of the indictable offences are as follows. In relation to count 1, during the execution of a search warrant at the appellant's residence on 16 January 2014, police located 31.6 g of cocaine with a purity of approximately 20% in a locked floor safe which was forced open by police. For this offence, the appellant was sentenced on 13 November 2014 by Stevenson DCJ to a term of immediate imprisonment of 2 years 6 months.
In relation to count 2, on 24 April 2014 police followed a vehicle being driven by the appellant. On arriving at his residence, the appellant got out of the vehicle carrying a man bag. When challenged by police, the appellant tried to dispose of the man bag. Inside the man bag were two clipseal bags, one containing 501 g of methylamphetamine ranging between 67% and 70% purity and the other 1.24 g of methylamphetamine. The appellant was on bail for the offence the subject of count 1 when he committed count 2. The appellant was sentenced to 6 years' imprisonment on count 2.
Four of the s 32 offences arose out of the search of the appellant's residence on 16 January 2014. Those offences were for the unlicensed possession of eight live rounds of .308 ammunition; possession of approximately 14.3 g of cannabis; possession of property which was reasonably suspected of being unlawfully obtained, being $13,750 located in the locked floor safe; and possession of a prohibited drug (anabolic steroid).
On 19 February 2014 the appellant drove a motor vehicle when his authority to drive was suspended. The remaining s 32 offences were committed on 24 April 2014, the same day as count 2. Those offences were for driving a motor vehicle when his authority to drive was suspended; possession of $4,605 which was reasonably suspected of being unlawfully obtained; possession of a controlled weapon (two cans of OC spray); possession of a prohibited weapon (a black Taser 699 stun gun); possession of 23 Serepax tablets reasonably suspected of being stolen or unlawfully obtained; possession of drug paraphernalia (digital scales, a smoking implement and grinder); possession of cannabis; and possession of a declared prohibited device (a radio jamming device).
With the exception of the offence of possessing Serepax (for which a fine was imposed) sentences ranging between 3 months and 6 months were imposed for the s 32 offences. The sentencing judge ordered that the sentences on counts 1 and 2 be served cumulatively and the balance of the sentences concurrently, producing a total effective sentence of 8 years 6 months' imprisonment.
The grounds of appeal are that the total effective sentence infringed the first limb of the totality principle (ground 1) and the sentence of 6 years' imprisonment on count 2 is manifestly excessive (count 2).
Based on the purity of the drugs the subject of count 2, the sentencing judge found that the appellant was in contact with persons who had primary access to the source of the drugs, that he was trusted by those who provided the drugs to him and that he was at 'a somewhat high level in the chain of distribution of [prohibited] drugs in the community' (ts 32).
The sentencing judge did not accept the appellant's claim that he committed the offence the subject of count 2 to discharge a debt relating to the cocaine the subject of count 1.
The appellant was aged 29 at the time of sentencing. He and his family came to Australia from Nigeria in 1990. He had partially completed a university degree and had not been employed since 2012.
The appellant had a prior record of offending, including an offence of demanding property by oral threats for which he was sentenced to 2 years' imprisonment in November 2010. He also had at least six prior convictions for driving without authority.
As to his pleas of guilty, he was given a discount of 20% from the head sentence for count 1 on the indictment and the maximum discount of 25% for the plea on count 2. There were no other significant mitigating factors.
Legal principles
This court can only intervene if the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess relies on the implication of error. The sentence must be shown to be unreasonable or plainly unjust, it being outside the range of a sound sentencing discretion.
In determining whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.
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 both reveal and reflect.
Manifest excess applies to an individual sentence. The totality principle applies to the total effective sentence for multiple offences. A breach of the totality principle is also a claim of implied error.
The first limb of the totality principle is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.
Ground 2 - manifest excess
This ground does not have a reasonable prospect of succeeding. The circumstances of the offending are at the high end of the scale of seriousness, having regard to the weight and purity of the methylamphetamine and the appellant's role in the distribution hierarchy. The appellant has a prior record and the early plea is the only significant mitigating factor.
Having regard to all relevant sentencing factors, 6 years' imprisonment is towards the lower end of the range of sentences customarily imposed in comparable cases. See Benter v The State of Western Australia [2005] WASCA 245; Sabau v The State of Western Australia [2010] WASCA 3; Monument v The State of Western Australia [2007] WASCA 239; Cohen v The State of Western Australia[No 2] [2007] WASCA 279; Guler v The State of Western Australia [2014] WASCA 83; Ngo v The State of Western Australia [2007] WASCA 221; Aconi v The Queen [2001] WASCA 211; Tanner v The State of Western Australia [2013] WASCA 142; Pham v The State of
Western Australia [2011] WASCA 244; Lee v The Queen (2004) 147 A Crim R 269.
Ground 1 - totality
This ground does not have a reasonable prospect of succeeding. The total effective sentence is also well within the range of sentences customarily imposed for the totality of the appellant's criminal conduct. As explained in Giglia v The State of Western Australia [2010] WASCA 9, there is often a correlation between the length of the sentence for an individual offence and its contribution to the total effective sentence. It can be inferred that the sentence on count 2, which was committed while the appellant was on bail for count 1, was moderated to reflect the trial judge's intention to order total cumulation with the sentence on count 1 and total concurrency for the sentences for the s 32 offences.
A total effective sentence of 8 years 6 months for all of the appellant's criminal conduct does not arguably offend the totality principle.
Conclusion
Neither ground of appeal has a reasonable prospect of succeeding. Thus leave must be refused and the appeal is taken to be dismissed: Criminal Appeals Act 2004 (WA), s 27(2), (3).
MAZZA JA: I agree with McLure P.
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