North v The State of Western Australia
[2020] WASCA 6
•15 JANUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NORTH -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 6
CORAM: BUSS P
MITCHELL JA
HEARD: 6 DECEMBER 2019
DELIVERED : 15 JANUARY 2020
FILE NO/S: CACR 147 of 2019
BETWEEN: LEE MICHAEL NORTH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BIRMINGHAM DCJ
File Number : IND 1871 of 2017
Catchwords:
Criminal law - Application for leave to appeal against sentence - Possession of prohibited drug (heroin) with intent to sell or supply to another - Possession of property (cash) reasonably suspected of being unlawfully obtained - Whether miscarriage of justice arose from incorrect information being provided as to offender's past successful attempts at rehabilitation - Whether miscarriage of justice arose by reason of prosecution decision to indict on separate charges for each package of heroin - Whether individual sentences were manifestly excessive - Whether total effective sentence infringed the first limb of the totality principle
Legislation:
Criminal Code (WA), s 417(1)
Criminal Procedure Act 2004 (WA), sch 1 cl 7
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Application for an extension of time refused
Leave to appeal refused
Appeal dismissed
Category: D
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 Australia [2018] WASCA 45
Carlucci v The State of Western Australia [2019] WASCA 37
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
HAS v The State of Western Australia [2005] WASCA 29
Hoang v The State of Western Australia [2015] WASCA 130
Kabambi v The State of Western Australia [2019] WASCA 44
Law v The Queen [2019] WASCA 81
Law v The State of Western Australia [2009] WASCA 193
MSO v The State of Western Australia [2015] WASCA 78
Mussarri v The State of Western Australia [2018] WASCA 46
Nembousse v The State of Western Australia [2015] WASCA 68
Nguyen v The State of Western Australia [2017] WASCA 35
Nguyen v The State of Western Australia [2018] WASCA 162
Pelemis v State of Western Australia [2009] WASCA 151
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Rimington v The State of Western Australia [2015] WASCA 102
Rin v The State of Western Australia [2015] WASCA 51
Tanner v The State of Western Australia [2013] WASCA 142
Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188
The State of Western Australia v JWRL [2010] WASCA 179
Tran v The State of Western Australia [2015] WASCA 218
Wellstead v The State of Western Australia [2019] WASCA 130
Wilson v The State of Western Australia [2015] WASCA 119
Ye v The State of Western Australia [2016] WASCA 103
JUDGMENT OF THE COURT:
Summary
On 28 September 2018, the appellant was sentenced to a total effective sentence of 7 years' imprisonment in respect of the following offences committed on 11 December 2016 at Rivervale:
Count
Offence
Sentence
Cum / Conc
1
Possession of a prohibited drug (28.01g of heroin, 75% pure) with intent to sell or supply to another
(s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA))
3 years 6 months
Head Sentence
2
Possession of a prohibited drug (14.1g of heroin, 74% pure) with intent to sell or supply to another
(s 6(1)(a) of the MDA)
2 years 6 months
Conc
3
Possession of a prohibited drug (28.2g of heroin, 78% pure) with intent to sell or supply to another
(s 6(1)(a) of the MDA)
3 years 6 months
Cum
4
Possession of a prohibited drug (4.35g of heroin, 78% pure) with intent to sell or supply to another
(s 6(1)(a) of the MDA)
1 year 6 months
Conc
5
Possession of cash ($4,700) reasonably suspected to be unlawfully obtained
(s 417(1) of the Criminal Code)
2 years
Conc
Total effective sentence
7 years
The appellant was made eligible for parole and the sentence was backdated to 13 January 2017 to take account of time spent in custody on remand.[1]
[1] Primary ts 32.
The appellant now seeks to appeal against his sentences. The three grounds of appeal, in substance, raise the following issues:
(1)Whether a miscarriage of justice arose as a result of the sentencing judge acting on incorrect information that the appellant had never availed himself of rehabilitation programs in prison.
(2)Whether a miscarriage of justice arose from the number of charges pleaded in the indictment.
(3)Whether error by the sentencing judge is to be inferred on the basis that the individual sentences were manifestly excessive, or that the total effective sentence infringes the first limb of the totality principle.
For the following reasons, none of the grounds of appeal have any reasonable prospect of succeeding. Leave to appeal should be refused on all grounds and the appeal should be dismissed.
Circumstances of offending
The offences were committed while the appellant was on home detention bail in respect of other offending. He had been granted home detention bail to reside with his partner, who was seriously ill. He decided that, because he had no money for Christmas, he would make some quick money by selling drugs. He hoped to have enough money to send his partner on a cruise and purchase Christmas presents for his children.[2]
[2] Primary ts 26, 30.
On 9 December 2016, the appellant was staying in a room at a hotel on Great Eastern Highway, which had been hired for the appellant by a third party. The appellant used the hotel room as a base for the sale of prohibited drugs.[3]
[3] Primary ts 14, 25.
At 1.40 am on 11 December 2016, police attended the hotel room, which was on the third floor of the hotel, to arrest the appellant for breach of his home detention bail conditions. Police were delayed in entering the room due to an internal security device. The appellant refused to open the door. The appellant removed three packages of heroin contained in the room safe and threw them from the room's balcony into the garden. When police entered the room, they saw the balcony doors open and the appellant walking away from the doors towards the police.[4]
[4] Primary ts 14, 25.
Police subsequently located the following bags of heroin in the hotel garden below the appellant's room:
(1)A freezer bag with a blue elastic band was located on top of a brick retaining wall between the main footpath and the garden. The bag contained 28.01 g of heroin with a purity of 75% (count 1).[5]
(2)A clip seal bag was located on the bricks in a small courtyard area near air conditioning units. The bag contained 14.1 g of heroin with a purity of 74% (count 2).[6]
[5] Primary ts 14, 25.
[6] Primary ts 15, 25.
Police then conducted a search of the hotel room, and found a clip seal bag in the safe. That bag contained 4.35 g of heroin with a purity of 78% (count 4). Also in the safe was $4,700 in $50 notes, which were believed to be the proceeds of drug sales (count 5).[7]
[7] Primary ts 15, 25.
During the course of the search, police also discovered: a clip seal bag containing 1.25 g of methylamphetamine; a credit card in the appellant's name; watch batteries which were found in the safe; a set of electronic scales with traces of heroin which were located on the table; some unused clip seal bags also on the table; a Samsung mobile phone also on the table and a pair of binoculars. Piles of male clothes were found on the shelves below the safe and a health care card in the appellant's name was located in a bag on the bed which also contained medication.[8]
[8] Primary ts 15, 25.
At about 10.30 am on 11 December 2016, the general manager of the hotel located a bag near a tree above the brick retaining wall where the bag the subject of count 1 was found. That bag contained 28.2 g of heroin with a purity of 78% (count 3).[9]
[9] Primary ts 15, 25.
The total weight of heroin in the appellant's possession on 11 December 2016 was 74.66 g.
The appellant was arrested, and has remained in custody since that time. He had been in custody only in respect of the current matters since 13 January 2017.
Personal circumstances
The appellant was born in the United Kingdom and came to Australia with his mother and her partner when he was about 15 years of age. The appellant's father died when he was a young child. The appellant left school at 16 years of age, and commenced dealing in drugs, which he accepted had since been his primary means of income. He had an entrenched history of illicit drug use.
The appellant has a long and serious criminal record and has spent a considerable portion of his life in custody. He has received sentences of imprisonment, including for the following offences:
(1)6 months' immediate imprisonment for stealing a motor vehicle, imposed on 24 November 1993.
(2)A total effective sentence of 6 years' imprisonment for two armed robbery offences, imposed in June 1995.
(3)A cumulative sentence of 9 months' immediate imprisonment for assault occasioning bodily harm, imposed in April 1996.
(4)6 months' immediate imprisonment for unlawful wounding, imposed in December 1998.
(5)6 months' immediate imprisonment for stealing, imposed in December 2000.
(6)6 years' imprisonment for kidnapping, imposed in May 2003.
(7)A total effective sentence of 2 years' immediate imprisonment for offences of stealing motor vehicles, imposed in September 2006.
(8)3 years' immediate imprisonment for possession of a prohibited drug (methylamphetamine) with intent to sell or supply to another, imposed in April 2012.
(9)A total effective sentence of 9 months' immediate imprisonment for various firearms, property and traffic offences, imposed in December 2012.
(10)A total effective sentence of 9 months' immediate imprisonment for offences of stealing a motor vehicle and driving recklessly, failing to stop, reckless driving and threats, imposed in November 2015.
The appellant had a poor history of community supervision, with parole being cancelled on numerous occasions and only being successfully completed on one occasion.[10]
[10] Primary ts 32.
The appellant had five children from two previous relationships. His two youngest children, from his relationship with his partner at the time of the current offending, were aged 9 and 12 years at the time of his sentencing. By the time of sentencing, his partner had died from her illness, and the appellant claimed these children were in the care of a relative. The sentencing judge recognised the hardship which the appellant's children would suffer, but regarded that as arising as a consequence of his offending and not exceptional.[11]
[11] Primary ts 29.
The appellant pleaded guilty to the offences about a week prior to trial. The sentencing judge reduced the sentences which would otherwise have been imposed by 10% under s 9AA of the Sentencing Act. His Honour was not satisfied that the appellant was remorseful, and said that the plea was a recognition of the strong case against the appellant.[12]
[12] Primary ts 29, 30.
Ground 1: Rehabilitation programs
Ground 1 contends that, in sentencing the appellant, the sentencing judge relied on incorrect information provided by the prosecutor and his sentencing counsel. The ground contends that various remarks in the primary transcript:
[A]ttain to a falsehood that I have never availed myself of any courses or rehabilitation or Pathway of any kind in any prison throughout my incarceration over the years. This is untrue.
The appellant's submissions assert that he has 'taken many courses and welcomed many opportunities during my incarceration to better myself'. The appellant refers to a number of types of courses he says he has undertaken, without giving the dates on which, and the places at which, the courses were undertaken.
Material before the sentencing judge
A psychological presentence report dated 17 September 2018 contained a number of observations about the appellant's participation in rehabilitation programs.
The report noted that the appellant had stated that he was currently undertaking the first year of an associate degree in art through Curtin University. He claimed to be highly talented and intended to use this as a legitimate means of making money in the future.[13]
[13] Psychological report, par 3.
The psychological report also noted that, according to the appellant, at the time of reporting he was on a methadone program and was in an improved state. The report said that the appellant 'has apparently never undergone any formal drug treatment'.[14]
[14] Psychological report, par 6.
The reporting psychologist then said:[15]
[The appellant] claimed he has done 'all programs' in prison, covering drugs, cognitive skills and violence, however there is no reference to any of these programs in official documentation provided to the author. [The appellant] stated he has previously been denied parole due to his own poor performance and has also refused parole, under the belief he would not be permitted parole because of his past poor response. A report dated 1/12/2015 suggested [the appellant] had not been assessed for nor engaged in any treatment programs, presumably during that sentence. There is no evidence that [the appellant] is currently engaged in any offence specific treatment programs and he clearly stated his disinterest in attending such programs.
[15] Psychological report, par 7.
Later, the reporting psychologist observed:[16]
[The appellant] adamantly stated he does not want a parole sentence, as he is not interested in undertaking any offence focussed rehabilitation programs. He believed he would be unfairly punished if given a parole eligible sentence, whereby he would not get parole and therefore be required to do further time.
…
[The appellant] has a long and entrenched offending history, with the sale and supply of drugs his primary source of income and therefore that culture contributing to his general antisocial behaviour. Whilst it is positive he has commenced education and the methadone program, both are early developments. Change in antisocial attitudes is necessary and requires intervention, which [the appellant] is not interested in or willing to undertake. He has adamantly stated he will refuse programs·and deny himself any future possible chance of parole.
[16] Psychologist's report, pars 17, 19.
Submissions made by the appellant's sentencing counsel to the sentencing judge accepted that he had disavowed any interest in participating in other therapies or courses since being in custody.[17] Counsel also accepted that, prior to his current period in custody, the appellant had not undertaken any courses or other types of education.[18] She indicated that the observations in the psychological report about the appellant disavowing parole were consistent with her instructions.[19]
Sentencing judge's approach
[17] Primary ts 19.
[18] Primary ts 22.
[19] Primary ts 19.
The sentencing judge observed that:[20]
Your long history of offending can be summed up in a phrase. Entrenched drug addiction. You have never really managed to get on top of it and as the reports demonstrate, you have been offered assistance and steps towards rehabilitation and have been quite adamant that you are not interested in undertaking any offence focused rehabilitation programs, that you have a long entrenched offending history with the sale and supply of drugs as your primary source of income and a culture that contributed to a general antisocial behaviour.
[20] Primary ts 27.
The sentencing judge referred to the psychological report, including the statement that the appellant 'adamantly stated he will refuse programs and deny himself any future possible chance of parole'. The sentencing judge indicated his hope that this attitude would change, for the benefit of the appellant, his children and the community. His Honour continued:[21]
You're not to be sentenced on the basis of your criminal history but it is a matter that I do have regard to. There's a recognised need for you to change your antisocial attitudes and your criminal history reflects the consequences of the extent to which you have been unwilling to participate in intervention programs in the past and your reluctance to do so in the future doesn't augur well for any successful rehabilitation so when one has regard to your criminal history, issues such as personal deterrence must be considered.
[21] Primary ts 27.
Later the sentencing judge indicated that he would, with some hesitation, make the appellant eligible for parole. In doing so, his Honour observed:[22]
The decision as to whether you apply for parole is a matter for you. You presently express the view that you don't wish parole. I'm going to make an order that you be eligible for parole. Because I'm sure that after you've served five years of that sentence you might then have reflected upon the extent to whether you wish to continue to remain in custody for a further two years.
Obviously to get parole you're going to need to undertake some rehabilitation. Those are matters for you. The opportunity is there and I make an order that you be eligible for parole.
General principles
[22] Primary ts 32.
Section 15 of the Sentencing Act provides:
To decide on the proper sentence to be imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit.
Section 15 empowers a sentencing judge to receive information which is not admissible under the law of evidence. However, the discretionary power under s 15 must be exercised:
(a)in a manner which is consistent with, and does not prejudice or detract from, the integrity of the judicial process; and
(b)in accordance with the rules of procedural fairness.[23]
So, for example, s 15 does not authorise a sentencing judge to take into account, in sentencing an offender, information he or she has obtained without reference to the parties and without giving them an opportunity to be heard in relation to it.[24]
[23] Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188 [64] - [65]; Tanner v The State of Western Australia [2013] WASCA 142 [134] - [135].
[24] Teakle [66]; Tanner [136].
If the prosecution or an offender seeks to have the sentencing judge take a fact or circumstance into account when passing sentence, it will be for the party relying on the fact or circumstance to bring it to the judge's attention and, if necessary, call evidence about it. The calling of evidence will only be required if the asserted fact or circumstance is disputed or if the judge is not prepared to act on the assertion.[25]
[25] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [25]; Law v The State of Western Australia [2009] WASCA 193 [29] - [31].
Notwithstanding s 15 of the Sentencing Act, where an offender disputes facts or circumstances asserted by the prosecution, the facts or circumstances must be established according to the strict rules of evidence.[26]
[26] Rimington v The State of Western Australia [2015] WASCA 102 [59]; The State of Western Australia v JWRL [2010] WASCA 179 [10]; Pelemis v The State of Western Australia [2009] WASCA 151 [13]; HAS v The State of Western Australia [2005] WASCA 29 [49] - [55].
A sentencing judge may not take disputed facts or circumstances into account in a way that is adverse to the interests of the offender unless those facts or circumstances have been established beyond reasonable doubt. However, a sentencing judge may take into account disputed facts or circumstances which are in the offender's favour if those facts or circumstances are proved on the balance of probabilities.[27]
[27] Olbrich [27]; Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 [64].
The essential role of this court on an appeal against sentence is to discern whether there was error or a miscarriage of justice below in the sentencing. Only if error or a miscarriage of justice is established does this court proceed to the second stage of re-exercising the sentencing discretion and deciding whether a different sentence should have been imposed.[28]
[28] Wellstead v The State of Western Australia [2019] WASCA 130 [87] - [88] and cases there cited.
A sentencing judge cannot ordinarily be said to have erred by proceeding in a manner contrary to, or without having regard to, evidence which was not before the sentencing court. A miscarriage of justice may arise from the absence of material evidence before the primary court. However, it is clear that such a miscarriage will not arise in all cases, and that the identification of miscarriage must be undertaken consistently with the nature of an appeal, in a manner that does not have the practical effect of obliterating the distinction between original and appellate jurisdiction.[29]
[29] Wellstead [91].
The distinction between 'fresh' and 'new' evidence is of lesser significance in an appeal against sentence than it is in an appeal against conviction. However, the distinction between fresh and new evidence may, in a particular case, bear significantly upon the question of whether the absence of evidence at first instance gives rise to a miscarriage of justice. In general terms, a miscarriage of justice will be difficult to establish where evidence was actually known to an appellant and not used in the sentencing hearing.[30]
[30] Wellstead [95] - [99].
Where additional evidence is sought to be adduced, the appeal against sentence cannot succeed unless it is demonstrated that had the additional evidence been before the sentencing judge, a different sentence should have been imposed.[31]
Disposition
[31] Section 31(4) of the Criminal Appeals Act 2004 (WA).
In our view, ground 1 has no prospect of succeeding, for the following reasons.
First, the sentencing judge cannot be said to have erred in proceeding on the basis of information in the psychological report which was accepted by the appellant through his counsel. This court could only interfere if it were established that the absence of evidence of any past steps towards rehabilitation in the sentencing proceedings gave rise to a miscarriage of justice.
Secondly, the taking of steps towards rehabilitation would be a mitigating factor. If the facts had been disputed in the sentencing proceedings, the onus would have been on the appellant to adduce evidence establishing on the balance of probabilities that he had taken steps towards rehabilitation.
Thirdly, the appellant has not proffered any evidence in this appeal demonstrating that he has actually undertaken rehabilitation programs in the past. The appellant has simply made generalised assertions in his written and oral submissions.
Fourthly, the appellant does not deny that in his interview with the psychologist he indicated that he did not then want parole, and was not then willing to participate in future rehabilitation programs. In that context, whether the appellant had or had not participated in rehabilitation programs during previous sentences of imprisonment was not a material issue that could have affected the sentence which should have been imposed. If the appellant has undertaken rehabilitation programs in the past, they clearly have not been effective. Whether or not the appellant has undertaken programs in the past was immaterial, in a context where the appellant's offending behaviour continues and the appellant indicated he was not prepared to undertake rehabilitation programs in the future.
Fifthly, if the appellant has participated in rehabilitation programs during previous sentences, he would have known that at the time of the sentencing hearing. The material before this court does not establish that a miscarriage of justice arose from the absence of information before the sentencing court that was actually known to the appellant.
Ground 2: number of counts on the indictment
The appellant's second ground of appeal contends that the 'sentence was duplicitous as the charges upon which sentence was passed should have been 2 charges as in the original indictment'.
The appellant submits that the prosecution amended the indictment to charge four counts of possession of heroin when the matter was going to trial. He submits that this was done in case the jury had issues with packets found in different locations and different times. He said that the need for separate charges was removed when he pleaded guilty and the indictment should have been changed back to its original form at that time.
It may be noted that the procedural history recounted by the appellant is not entirely accurate. On 30 December 2016, the appellant was charged by prosecution notice in the Magistrates Court with one offence against s 6(1)(a) of the MDA and one offence against s 417(1) of the Code. On 17 October 2017, the charges were committed to the District Court of Western Australia. The first indictment filed on 2 January 2018 charged the appellant with three counts of offences against s 6(1)(a) of the MDA and one count of an offence against s 417(1) of the Code. On 18 January 2018, the State was given leave to amend the indictment to include an additional count alleging an offence against s 6(1)(a) of the MDA.
The appellant submits that the amended indictment infringed a requirement that there be only one count in an indictment. He submits that the possession of the whole '74.55 g' of heroin should have been the subject of a single charge, and therefore the subject of a single sentence.
There is no merit to these submissions. While it was open to the State to have charged a single offence for the whole of the heroin in the appellant's possession on 11 December 2016, it was also open to charge separately in respect of each separate packet. This was permitted by cl 7(3) of sch 1 to the Criminal Procedure Act 2004 (WA), which provides:
A prosecution notice or indictment may charge one or more persons with 2 or more offences if the offences —
(a)form or are a part of a series of offences of the same or a similar character; or
(b)are alleged to arise substantially out of the same or closely related acts or omissions; or
(c)are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose,
and may do so without alleging a connection between the offences.
No element of duplicity was involved in the individual counts, which each related to the possession of a particular packet of heroin.
The State's choice to charge separately in respect of each packet of heroin should not have affected the total penalty which the appellant received. If the appellant had been convicted of a single offence of possessing 74.66 g of heroin it would have been expected that he would have received a sentence for that individual count which was significantly higher than any of the individual sentences he received on counts 1 - 4 on the indictment. Whether there were two or five counts, the court would be required to assess the overall criminality involved in all of the offending in fixing a total effective sentence for the drug offence(s) and the offence involving the possession of cash. There is nothing in the sentencing judge's reasons to indicate that he judged the overall criminality involved in the appellant's offending more harshly because of the manner in which the State formulated the heroin charges.
In any event, the sentencing judge did not err in sentencing the appellant on the offences for which he had been indicted, and had pleaded guilty and been convicted.
Ground 3: inferred error
The appellant's third ground of appeal in effect contends that the sentences for the individual sentences were manifestly excessive and the total effective sentence of 7 years' imprisonment infringed the first limb of the totality principle.
General principles
This ground 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:[32]
[32] Kabambi v The State of Western Australia [2019] WASCA 44 [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.
Disposition
The maximum penalty for each of the appellant's drug offences involving heroin was 25 years' imprisonment or a $100,000 fine or both. The maximum penalty for possession of property reasonably suspected of being unlawfully obtained is 7 years' imprisonment.
The customary sentencing principles in relation to sentencing for commercial drug offences were summarised by this court in Carlucci v The State of Western Australia:[33]
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 invariably be subsidiary considerations, but they are not irrelevant.
[33] Carlucci v The State of Western Australia [2019] WASCA 37 [37].
The appellant refers to a number of cases in this court involving significant quantities of prohibited drugs.[34] None of the cases are close comparators to the present case. A number of those cases involve dealing with a much larger quantity of drugs than the total of 74.66 g of heroin which the appellant possessed, but sentences in the range of 8 - 9 years were imposed.
[34] Nembousse v The State of Western Australia [2015] WASCA 68; Mussarri v The State of Western Australia [2018] WASCA 46; Abbott v The State of Western Australia [2018] WASCA 45; Tran v The State of Western Australia [2015] WASCA 218; Hoang v The State of Western Australia [2015] WASCA 130; Nguyen v The State of Western Australia [2017] WASCA 35; Rin v The State of Western Australia [2015] WASCA 51; MSO v The State of Western Australia [2015] WASCA 78; Nguyen v The State of Western Australia [2018] WASCA 162; Ye v The State of Western Australia [2016] WASCA 103 and The State of Western Australia v Wilson [2015] WASCA 119.
A number of cases involving offending against s 417(1) of the Code were recently referred to in Law v The Queen.[35] In Law, this court resentenced the offender, who pleaded guilty, to 3 years' immediate imprisonment for possessing $154,950 in money reasonably suspected to have been unlawfully obtained. That individual sentence formed part of a total effective sentence of 10 years 6 months' imprisonment imposed in respect of the offence against s 417(1) and State and Commonwealth drug offences.
[35] Law v The Queen [2019] WASCA 81 [157] and cases there cited.
The total effective sentence of 7 years' imprisonment was a significant sentence given the scale of the appellant's operation and the amount of drugs (74.66 g of heroin) and cash ($4,700) involved. However, there are a number of aggravating features of the appellant's offending. The appellant was knowingly undertaking a commercial operation for reward. He was well aware of the type and quantities of prohibited drugs he was selling. The fact that the appellant committed the offences while on home detention bail was a significant aggravating factor. The only significant mitigating factor was the appellant's plea of guilty. But the plea was entered at a very late stage in response to a strong prosecution case. While it was not an aggravating factor, the appellant's extensive criminal record, including a conviction for a drug trafficking offence in 2012, elevated the significance of personal deterrence and community protection as sentencing considerations.
Having regard to all of the circumstances of the offending and the appellant's personal circumstances, and all relevant sentencing factors, it is not reasonably arguable that either the individual sentences or the total effective sentence were unreasonable or plainly unjust. Inferred error has not been arguably established.
Orders
The appellant lodged his appeal notice well outside the time for appealing, and so requires an extension of time to commence the appeal. As none of the grounds of appeal have any reasonable prospect of succeeding, there would be no utility in granting an extension. The following orders should be made in the appeal:
(1)The appellant's application for an extension of time in which to appeal is dismissed.
(2)Leave to appeal is refused on all grounds of appeal.
(3)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Associate to the Honourable Justice Mitchell15 JANUARY 2020
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