Nickson v The State of Western Australia - [2021] WASCA 40

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   NICKSON -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 40
CORAM:   BUSS P
VAUGHAN JA

HEARD:   23 DECEMBER 2020
DELIVERED          :   5 MARCH 2021
FILE NO/S:   CACR 134 of 2020
BETWEEN:   TERRY ROBERT NICKSON
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STONE DCJ
File Number            :   IND 2154 of 2018 & IND 990 of 2020

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted of four counts of possessing a prohibited drug with intent to sell or supply and three counts of possessing a thing capable of being stolen that was reasonably suspected to have been unlawfully obtained - Pleas of guilty - Total effective sentence of 11 years' imprisonment - Totality principle

Legislation:

Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Result:

Application for an extension of time within which to appeal dismissed
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Abbott v The State of Western of Australia [2018] WASCA 45
Barton v The State of Western Australia [2016] WASCA 196
Bogers v The State of Western Australia [2020] WASCA 174
Cochrane v The State of Western Australia [2021] WASCA 5
Gaskell v The State of Western Australia [2018] WASCA 8
Giglia v The State of Western Australia [2010] WASCA 9
HSV v The State of Western Australia [2020] WASCA 5
Le v The State of Western Australia [2014] WASCA 120
Lester v The State of Western Australia [2011] WASCA 128
Moreton v The State of Western Australia [2011] WASCA 258
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v Littlefair [2013] WASCA 177
The State of Western Australia v Paolucci [2020] WASCA 188
Tran v The State of Western Australia [2016] WASCA 37

JUDGMENT OF THE COURT:

The appellant has applied for an extension of time within which to appeal and for leave to appeal against sentence.
The appellant was charged on IND 2154 of 2018 and IND 990 of 2020 with a total of seven offences.
The count on IND 2154 of 2018 alleged that on 10 August 2017 the appellant had in his possession a prohibited drug (methylamphetamine) with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
The counts on IND 990 of 2020 alleged that on 7 October 2019 the appellant had in his possession:
(a)a prohibited drug (methylamphetamine) with intent to sell or supply it to another and that the offence involved a trafficable quantity of methylamphetamine, contrary to s 6(1)(a) of the MD Act (count 1);
(b)a prohibited drug (dexamphetamine) with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act (count 2);
(c)a prohibited drug (cannabis) with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act (count 3);
(d)a thing capable of being stolen, namely a sum of money, that was reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) (the Code) (count 4);
(e)a thing capable of being stolen, namely a quantity of jewellery, that was reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Code (count 5); and
(f)a thing capable of being stolen, namely a sum of money, that was reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Code (count 6).
The appellant was convicted on his pleas of guilty of all of the offences.
The maximum penalty for the count on IND 2154 of 2018 was 25 years' imprisonment or a fine of $100,000 or both.
The maximum penalties for the counts on IND 990 of 2020 were as follows:
(a)count 1: life imprisonment;
(b)count 2: 25 years' imprisonment or a fine of $100,000 or both;
(c)count 3: 10 years' imprisonment or a fine of $20,000 or both;
(d)count 4: 7 years' imprisonment;
(e)count 5: 7 years' imprisonment; and
(f)count 6: 7 years' imprisonment.
On 20 August 2020, Stone DCJ imposed individual sentences of immediate imprisonment as follows:
(a)the count on IND 2154 of 2018: 3 years 6 months;
(b)count 1 on IND 990 of 2020: 7 years 6 months;
(c)count 2 on IND 990 of 2020: 18 months;
(d)count 3 on IND 990 of 2020: 12 months;
(e)count 4 on IND 990 of 2020: 12 months;
(f)count 5 on IND 990 of 2020: 12 months; and
(g)count 6 on IND 990 of 2020: 12 months.

His Honour ordered that the sentence for the count on IND 2154 of 2018 be served cumulatively upon the sentence for count 1 on IND 990 of 2020 and that the sentences for the other counts on IND 990 of 2020 be served concurrently with each other and concurrently with the sentence for count 1 on IND 990 of 2020. The total effective sentence was therefore 11 years' imprisonment. The total effective sentence was backdated to 7 October 2019. A parole eligibility order was made.
The last date for the appellant to appeal against sentence was 10 September 2020. The appellant did not file his appeal notice until 22 September 2020. His application for an extension of time within which to appeal is supported by his affidavit sworn 21 September 2020.
The sole ground of appeal relied upon by the appellant alleges, in effect, that the total effective sentence of 11 years' imprisonment infringed the first limb of the totality principle.
The ground of appeal does not have a reasonable prospect of success. It would be pointless to extend time and the application for an extension of time should therefore be refused. Leave to appeal must be refused and the appeal dismissed. Our reasons are as follows.

The facts and circumstances of the offending

On 10 August 2017, police executed a search warrant at the appellant's home in Hope Valley. The appellant was not present. During the search, police located a package in a freezer at the front of the house. The package included five clipseal bags. The bags contained about 14.7 g, 13.7 g, 13.8 g, 13.7 g and 13.6 g of methylamphetamine respectively. The total weight of the drugs was 69.5 g.
Police found in the appellant's bedroom or ensuite three sets of digital scales, about 0.59 g of methylamphetamine, numerous unused clipseal bags, various weapons, a BlackBerry mobile telephone and $6,000 cash.
Police also found in a shed on the premises an additional $2,000 cash and 69.5 g of a cutting agent, MSM.
The appellant was charged with the offence alleged in the count on IND 2154 of 2018 and released on bail.
On 7 October 2019, police executed a search warrant at a unit in Henderson. The property was fortified with chains and other pieces of property to create a barricade. It was necessary for the police to dismantle the barricade to gain entry to the unit.
The appellant was inside the unit when the police gained entry.
Police found methylamphetamine in three separate locations within the unit. In a walk-in cupboard, police located clipseal bags containing in total 194.9 g of methylamphetamine with a purity of between 77% and 80%. In another part of the walk-in cupboard, police found clipseal bags containing in total 12.69 g of methylamphetamine with a purity of 4%. In a wall in the shower area of the unit, police located a clipseal bag containing 298 g of methylamphetamine with a purity of 77%. The total weight of the drugs found in the unit was 505.59 g. Those drugs were the subject of count 1 on IND 990 of 2020.
As to count 2 on IND 990 of 2020, police found another clipseal bag in the unit which contained 13 white tablets, being 2.95 g of dexamphetamine.
As to count 3 on IND 990 of 2020, police found another two clipseal bags in the unit which contained in total 105.5 g of cannabis.
As to count 4 on IND 990 of 2020, police found a total of $8,745 cash in various locations within the unit.
As to count 5 on IND 990 of 2020, police found inside a safe in the appellant's bedroom in the unit two clipseal bags containing various items of jewellery. The total value of the jewellery was estimated to be $10,000.
Police also located within the unit a mobile telephone. Data extracted from the telephone revealed that people had contacted the appellant and had offered to give him jewellery in exchange for the discharge of outstanding debts. Police also located within the unit two sets of digital scales, numerous unused clipseal bags, three stun guns and an electrical shotgun.
After completing the execution of the search warrant at the unit in Henderson, police went to premises in Casuarina where they executed another search warrant in relation to a caravan over which the appellant had control. Police found in the caravan $700 cash, two sets of scales (one set having a white residue) and a stun gun.

The sentencing judge's sentencing remarks

The sentencing judge summarised in his sentencing remarks the facts and circumstances of the offending.
His Honour noted the maximum penalties for the offences.
The sentencing judge found that there were aggravating factors as follows. First, the appellant committed the offences charged in IND 990 of 2020 while he was on bail for the offence charged in IND 2154 of 2018. Secondly, all of the offences were committed in the context of the appellant conducting an ongoing drug dealing business for commercial gain. The appellant was within the mid to high level user/dealer range.
His Honour recounted the appellant's personal circumstances and antecedents. At the time of sentencing the appellant was aged 58 years. He was married for 17 years but the marriage ended in 2006. The appellant had been selling illicit drugs since 2007 to fund his personal illicit drug use.
The appellant was born in New Zealand. He appears to have had an unremarkable childhood. The appellant arrived in Western Australia when he was aged 30 years. He appears to have a close relationship with his mother and sister. The appellant's father is deceased.
The appellant completed year 10 at school. He then completed a plumbing and gas fitting apprenticeship. The appellant was employed consistently until 2007.
The information before the sentencing judge included a report dated 17 August 2020 from The Whitehaven Clinic and a presentence report in relation to the appellant. His Honour referred to various observations made in those reports.
The appellant has an extensive prior criminal record. His Honour noted that the existence of the criminal record did not aggravate the appellant's current offending. However, the record demonstrated that the appellant was not entitled to any leniency for good character. The record also demonstrated that previous sentences had not deterred the appellant from reoffending.
The appellant's criminal history is drug related. His previous offences include two convictions in 2007 for possession of a prohibited drug with intent to sell or supply; one conviction in 2008 for possession of a prohibited drug with intent to sell or supply; three convictions in 2009 for possession of a prohibited drug with intent to sell or supply; one conviction in 2009 for possessing stolen or unlawfully obtained property; three convictions in 2009 for possession of an unlicensed firearm; one conviction in 2009 for possession of unlicensed ammunition; and one conviction in 2009 for attempting to pervert the course of justice. During 2009 the appellant was sentenced to a total of 7 years' imprisonment for multiple offences.
The sentencing judge allowed the appellant a 10% discount on the head sentence he would otherwise have imposed for the offence charged in IND 2154 of 2018 and a 20% discount on the head sentence he would otherwise have imposed for each of the offences charged in IND 990 of 2020, on account of the pleas of guilty, pursuant to s 9AA of the Sentencing Act 1995 (WA).
His Honour noted other mitigating factors; in particular, the appellant's participation in The Whitehaven Clinic addiction recovery process programme and steps the appellant had taken while in prison on remand to endeavour to rehabilitate himself. His Honour also noted the demonstration of some remorse.
The sentencing judge was of the opinion that the appellant's risk of reoffending was high unless the appellant addressed his illicit drug abuse problems and his negative peer associations.

The appellant's submissions

The appellant was represented by defence counsel at the sentencing hearing before the sentencing judge, but was self-represented before this court.
The appellant submitted that, in the circumstances, including the place that his offending occupied on the scale of seriousness for offences involving the distribution of prohibited drugs and the standards of sentencing for offences of that kind, his total effective sentence of 11 years' imprisonment infringed the first limb of the totality principle.

The merits of the ground of appeal

The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear 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 a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual sentences. See Roffey v The State of Western Australia.[1] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia;[2] Gaskell v The State of Western Australia.[3]
[1] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[2] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
[3] Gaskell v The State of Western Australia [2018] WASCA 8 [54] - [59] (Buss P), [151] (Mazza & Beech JJA).
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive or infringes the first limb of the totality principle. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
By the Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017 (WA), the maximum penalty for the offence of possessing a trafficable quantity (that is, more than 28 g) of methylamphetamine, with intent to sell or supply, was increased from 25 years' imprisonment or a fine of $100,000 or both to life imprisonment.
In the present case, the lower maximum penalty was applicable to the count on IND 2154 of 2018 and the higher maximum penalty was applicable to count 1 on IND 990 of 2020.
We have considered prior cases of offending against s 6(1)(a) of the MD Act involving methylamphetamine which have at least some features comparable to the appellant's offending on the count on IND 2154 of 2018 and where the maximum penalty was 25 years' imprisonment or a fine of $100,000 or both. Those cases include Moreton v The State of Western Australia;[4] The State of Western Australia v Littlefair;[5] Le v The State of Western Australia;[6] Tran v The State of Western Australia[7] and Barton v The State of Western Australia.[8]
[4] Moreton v The State of Western Australia [2011] WASCA 258.
[5] The State of Western Australia v Littlefair [2013] WASCA 177.
[6] Le v The State of Western Australia [2014] WASCA 120.
[7] Tran v The State of Western Australia [2016] WASCA 37.
[8] Barton v The State of Western Australia [2016] WASCA 196.
We have also considered prior cases of offending against s 6(1)(a) of the MD Act involving methylamphetamine which have at least some features comparable to the appellant's offending on count 1 on IND 990 of 2020 and where the maximum penalty was life imprisonment. See, in particular, HSV v The State of Western Australia;[9] Cochrane v The State of Western Australia;[10] and the decisions referred to in those cases.
[9] HSV v The State of Western Australia [2020] WASCA 5.
[10] Cochrane v The State of Western Australia [2021] WASCA 5.
We have also had regard to the cases cited by the appellant in his submissions.
As to count 2 on IND 990 of 2020, the quantity of dexamphetamine involved was modest (2.95 g). There is a paucity of cases decided by this court in relation to a comparable quantity of dexamphetamine, but it must be remembered that the maximum penalty for the offence is 25 years' imprisonment or a fine of $100,000 or both.
As to count 3 on IND 990 of 2020, we have had regard to the observations of McLure P in Lester v The State of Western Australia.[11]
[11] Lester v The State of Western Australia [2011] WASCA 128 [21] ‑ [22].
As to counts 4, 5 and 6 on IND 990 of 2020, some guidance as to the relevant sentencing pattern for offences against s 417(1) of the Code can be discerned from Abbott v The State of Western of Australia;[12] Bogers v The State of Western Australia;[13] and The State of Western Australia v Paolucci.[14]
[12] Abbott v The State of Western of Australia [2018] WASCA 45.
[13] Bogers v The State of Western Australia [2020] WASCA 174.
[14] The State of Western Australia v Paolucci [2020] WASCA 188.
It was a significant aggravating factor that the appellant's offending in relation to IND 990 of 2020 occurred while he was on bail for the offence charged in IND 2154 of 2018. Also, it was a significant aggravating factor in relation to the offences involving methylamphetamine that the appellant was dealing commercially in that drug. Further, the seriousness of the appellant's drug dealing offences was underscored by his possession of a variety of weapons. We acknowledge, however, that the appellant was separately charged with offences relating to the possession of the weapons and those charges were dealt with and separately punished in the Magistrates Court. The appellant's previous convictions for possessing prohibited drugs with intent to sell or supply and the failure of previous sentences to achieve the purpose for which they were imposed did not aggravate the offences in question, but those matters demonstrated the importance of personal deterrence as a sentencing factor.

In the present case, we are satisfied that it was necessary, in order properly to mark the seriousness of the appellant's overall offending, for the individual sentences for the count on IND 2154 of 2018 and for count 1 on IND 990 of 2020 to be served cumulatively. The offences charged in those counts involved separate and distinct offending.
In our opinion, after taking into account:
(a)the maximum penalty for each count;
(b)the very serious nature of the offending, viewed as a whole;
(c)the total effective sentences imposed in prior cases with at least some features comparable to the appellant's overall offending;
(d)the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind;
(e)the appellant's personal circumstances and antecedents;
(f)the limited mitigation referred to by the sentencing judge; and
(g)all other relevant sentencing considerations,
it is not reasonably arguable that the total effective sentence of 11 years' imprisonment is unreasonable or plainly unjust.
The total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and having regard to all relevant circumstances, including those referrable to the appellant personally, and the total effective sentences imposed in prior cases with at least some features comparable to the appellant's overall offending.
It is not reasonably arguable that error by the sentencing judge in the exercise of his discretion should be inferred, based on the first limb of the totality principle, from the sentencing outcome.
The ground of appeal is without merit.

Conclusion

The ground of appeal does not have a reasonable prospect of success. The application for an extension of time to appeal should be dismissed and leave to appeal should be refused. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable President Buss
5 MARCH 2021