O'Malley v The State of Western Australia
[2021] WASCA 8
•14 JANUARY 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: O'MALLEY -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 8
CORAM: BUSS P
MAZZA JA
HEARD: 23 DECEMBER 2020
DELIVERED : 14 JANUARY 2021
FILE NO/S: CACR 141 of 2020
BETWEEN: GLENN DENNIS O'MALLEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GOETZE DCJ
File Number : GER IND 35 of 2020
Catchwords:
Criminal law - Application for leave to appeal against sentence - One count of possession of 26.49 g of methylamphetamine with intent to sell or supply to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) - Whether sentence of 3 years 6 months' immediate imprisonment was manifestly excessive
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Leave to appeal refused
Appeal dismissed
Representation:
Counsel:
| Appellant | : | K Kumar |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Anthony Eyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Cartwright v The State of Western Australia [2010] WASCA 4
Dinh v The State of Western Australia [2019] WASCA 167
Italiano v The State of Western Australia [2020] WASCA 115
Kabambi v The State of Western Australia [2019] WASCA 44
Leckie v The State of Western Australia [2018] WASCA 91
Potaka v The State of Western Australia [2017] WASCA 98
Staiger v The State of Western Australia [2020] WASCA 99
Stewart v The State of Western Australia [2014] WASCA 195
The State of Western Australia v Delaney [2020] WASCA 93
Towler v The State of Western Australia [2018] WASCA 141
JUDGMENT OF THE COURT:
Before the court is the appellant's application for leave to appeal against sentence.
The appellant was charged on indictment in the District Court with one offence, being that on 9 November 2019 at Dongara he had in his possession a prohibited drug, namely 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 offence involved a total of 26.49 g of methylamphetamine with a purity of 78%.[1] The maximum penalty for the offence is 25 years' imprisonment and/or a fine of $100,000.
[1] Sentencing ts 2.
On 17 August 2020, the appellant was convicted of the charge on his plea of guilty.[2]
[2] ts 5.
The appellant was sentenced by Goetze DCJ on 9 September 2020 after a trial of issues the previous day. His Honour imposed a sentence of 3 years 6 months' immediate imprisonment with eligibility for parole.[3]
[3] Sentencing ts 19 - 20.
The appellant seeks leave to appeal against the sentence imposed by his Honour on the sole ground that it is manifestly excessive. For the reasons which follow, the ground has no reasonable prospect of succeeding. Accordingly, leave to appeal must be refused and the appeal dismissed.
The facts of the offending
The facts of the appellant's offending may be briefly summarised as follows.
On 7 November 2019, the appellant drove from Geraldton to Perth, where he purchased what he said was approximately 25 g of methylamphetamine for $4,800. On 9 November 2019, after spending two nights in Perth he drove back to Geraldton. Just south of Dongara, police stopped and searched the appellant's vehicle.[4] Police found two small bags in the appellant's pants containing 2.6 g of methylamphetamine, and 23.8 g of the drug in the boot of his car. Subsequent analysis showed that the methylamphetamine was 78% pure.[5]
[4] Sentencing ts 2.
[5] Sentencing ts 2.
Police then executed a search warrant at the appellant's home, where they found several glass smoking implements, a set of working digital scales, a number of unused clipseal bags and one clipseal bag with methylamphetamine in it.[6] During the search, which was recorded by police, the appellant untruthfully said that all of the methylamphetamine discovered by the police was for his personal use.[7]
[6] Sentencing ts 2.
[7] Sentencing ts 2 - 3.
The appellant's plea of guilty was entered on the basis that the methylamphetamine he obtained in Perth was jointly purchased by him and two others and that he intended to retain one‑third of the methylamphetamine (about 8 g) exclusively for his own use and that the remainder of the drug would be supplied by him equally to the co‑purchasers.
The respondent challenged the appellant's contention that he would have retained his one‑third share of the methylamphetamine for his own use. The respondent alleged that the appellant intended to sell part of his one‑third share to a third person.[8] In support of its case in the trial of issues, the respondent adduced evidence from two police officers, including from Detective Maher, who examined screenshots taken from the appellant's mobile telephone which were consistent with the appellant having been engaged in the sale of illicit drugs in the months prior to the offence.[9]
[8] ts 22.
[9] ts 25 - 27.
The appellant testified in the trial of issues. The appellant said that at the time of his arrest he was using about 3 to 4 points (a point being 0.1 g) of methylamphetamine every second or third day[10] and about 1 to 1.5 g of the drug per week.[11] He admitted to purchasing what he believed was 25 g of methylamphetamine in Perth for $4,800. The appellant testified that he contributed $800 of his own money and that the other two purchasers contributed $2,000 each.[12] The appellant denied an intention to sell or supply any of the methylamphetamine he had purchased other than to supply the two people who had contributed money towards the purchase of the drug.[13]
[10] ts 38.
[11] ts 38.
[12] ts 40.
[13] ts 41.
The appellant admitted that he had sold methylamphetamine prior to his arrest.[14] He said that he did so between April and June 2019, but only in small quantities to people he knew.
[14] ts 42.
In relation to the trial of issues, his Honour found that:
(1)the appellant did not have an intention to sell or supply the methylamphetamine other than to supply approximately 8.3 g to each of his co‑purchasers;[15] and
(2)the appellant made a 'profit measured more in terms of the actual drug itself than in dollar notes' by getting a 'one‑third share of the drugs at a heavily discounted price [$800] even if expenses of travelling to and from Perth are allowed'.[16]
[15] Sentencing ts 13.
[16] Sentencing ts 12.
The appellant's personal circumstances
The appellant was aged 35 when he committed the offence and 36 when he was sentenced. He left school at the end of year 10 and has a Certificate 3 in Warehousing and Distribution. He has been employed as a mechanic and spray‑painter. More recently, he has conducted his own business in the automotive and bodywork industry.[17]
[17] Sentencing ts 14.
The appellant has a child from a prior relationship. The appellant's current partner has a young daughter and together they are expecting a baby in early 2021.[18]
[18] Sentencing ts 13.
The appellant has a history of illicit drug use which began with cannabis in his teenage years and progressed to methylamphetamine in his twenties. In his thirties, the appellant used methylamphetamine on a daily basis.[19] In the past, the appellant had unsuccessfully sought help from a general practitioner to stop using methylamphetamine.[20] More recently, the appellant had taken some steps towards his rehabilitation by attending alcohol and drug counselling and, in March 2019, self‑reporting to a psychologist for further help.[21]
[19] Sentencing ts 14.
[20] Sentencing ts 15.
[21] Sentencing ts 17.
While the appellant has taken some steps towards addressing his illicit drug use, it is clear that his rehabilitation is by no means complete. The appellant accepted that he was using methylamphetamine two weeks prior to being interviewed by the author of the pre‑sentence report that was provided to the sentencing judge.[22]
[22] Sentencing ts 14.
The appellant has a lengthy criminal history for traffic, firearm and public disorder offences. Significantly, the appellant has prior convictions for drug offences including, in 2013, for possession of methylamphetamine with intent to sell or supply, and supplying methylamphetamine for which he was fined $1,000 and $500, respectively.[23]
[23] Sentencing ts 15.
A psychological report tendered to the sentencing judge revealed that the appellant does not have any thought or perceptual abnormalities.[24]
[24] Sentencing ts 15.
Apart from coeliac disease, which has been treated with a change of diet, the appellant otherwise appears to be in good physical health.[25]
[25] Sentencing ts 15.
The sentencing remarks
The most significant mitigating factor identified by his Honour was the appellant's plea of guilty. Pursuant to s 9AA of the Sentencing Act1995 (WA), his Honour gave a reduction of 20% for the plea of guilty. In addition, his Honour found that the appellant was remorseful and that he had taken some steps towards his rehabilitation.[26]
[26] Sentencing ts 17.
His Honour found that the appellant, on his own admission, intended to distribute two lots of methylamphetamine weighing approximately 8.3 g each to the co‑purchasers of the methylamphetamine. His Honour observed that the appellant could not have been sure what the co‑purchasers would have done with the drugs. The sentencing judge accepted that the appellant's offending was 'really to sustain [his] drug habit' and that there was no feature of the offence 'which particularly aggravates it'.[27]
[27] Sentencing ts 16.
His Honour gave prominence to the well‑known sentencing objectives for offences of drug trafficking of general and personal deterrence, as well as community protection.[28]
[28] Sentencing ts 18 - 19.
General legal principles
The general principles governing appeals which, as in this case, allege inferred error on the basis that an individual sentence is manifestly excessive or that a total effective sentence infringes the totality principle are well established. We adopt, without repetition, the statement of these general principles made by this court in Kabambi v The State of Western Australia.[29]
[29] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
It is also well established that for offences of dealing or trafficking in dangerous drugs such as methylamphetamine, the major sentencing considerations are general and personal deterrence. Matters personal to an offender, while not irrelevant, will almost always be subsidiary considerations.[30]
[30] Staiger v The State of Western Australia [2020] WASCA 99 [14].
The appellant's submissions
Counsel for the appellant accepted that the sentence imposed by his Honour fell within the range of sentences customarily imposed for offences of the kind committed by the appellant. However, counsel submitted that the offending lacked the commerciality frequently seen in other cases and that, in such circumstances, the sentence imposed upon the appellant was manifestly excessive.[31]
[31] Appeal ts 2.
Disposition
In our opinion, it is not reasonably arguable that the sentence of 3 years 6 months' immediate imprisonment was unreasonable or plainly unjust.
We begin with a consideration of the comparable cases. We have reviewed the sentencing cases referred to in the appellant's written submissions, including Cartwright v The State of Western Australia;[32] Dinh v The State of Western Australia;[33] The State of Western Australia v Delaney[34] and Italiano v The State of Western Australia,[35] along with other relevant cases including Stewart v The State of Western Australia;[36] Potaka v The State of Western Australia;[37] Leckie v The State of Western Australia[38] and Towler v The State of Western Australia.[39]It is unnecessary to set out the facts and circumstances of these authorities. As counsel for the appellant correctly accepted, the sentence imposed in the present case is not outside the range of sentences customarily imposed. Of course, this does not inexorably lead to the conclusion that leave to appeal should be refused and the appeal dismissed. Each case must be decided on its own particular facts and circumstances. The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion in a particular case.
[32] Cartwright v The State of Western Australia [2010] WASCA 4.
[33] Dinh v The State of Western Australia [2019] WASCA 167.
[34] The State of Western Australia v Delaney [2020] WASCA 93.
[35] Italiano v The State of Western Australia [2020] WASCA 115.
[36] Stewart v The State of Western Australia [2014] WASCA 195.
[37] Potaka v The State of Western Australia [2017] WASCA 98.
[38] Leckie v The State of Western Australia [2018] WASCA 91.
[39] Towler v The State of Western Australia [2018] WASCA 141.
The appellant submitted that what particularly distinguishes the present case from other cases decided by this court is the absence of any finding that the appellant engaged in the distribution of methylamphetamine for commercial gain, that is, to make a profit.[40]
[40] Appeal ts 2.
Had the sentencing judge found that the appellant's offending was motivated to any significant degree by the desire to make a profit, that would have been an aggravating factor. However, the absence of this aggravating factor does not mean that the appellant's offending was not serious.
The appellant travelled to Perth where he purchased a substantial quantity of methylamphetamine for $4,800 with the intention of transporting it back to Geraldton where he and the co‑purchasers resided. The offence involved planning and organisation. It cannot be overlooked that the appellant intended to supply to each of his co‑purchasers approximately 8.3 g of methylamphetamine. There remained a real risk that the drugs supplied to the co‑purchasers would be further supplied into the community. Even if the methylamphetamine was to be used by the co‑purchasers themselves, the drug's deleterious effect posed a significant risk to the health of the co‑purchasers and potentially a risk to the public, given the negative effect methylamphetamine has on the behaviour of many who consume it.
Moreover, it cannot be said that the appellant did not obtain some commercial benefit for what he did. The appellant, as his Honour found, profited in the sense that he got his one‑third portion of the methylamphetamine at a heavily discounted price, even allowing for the expense of travelling to and from Perth.[41]
[41] Sentencing ts 12.
Apart from the plea of guilty, there was little mitigation to be found in the appellant's case. He did not have the advantage of youth or prior good character. Although his prior convictions were not aggravating, the drug trafficking offences referred to in [18], along with the appellant's admitted prior drug dealing referred to in [12], underscored the need for the sentence to properly reflect the objectives of personal deterrence and public protection. While the appellant's efforts towards rehabilitation are commendable, he is, at best, only at the beginning of that process, and it cannot yet be said that he has made significant progress towards ceasing his longstanding illicit drug use.
The maximum penalty for the offence committed by the appellant is 25 years' imprisonment and/or a fine of $100,000. The maximum penalty applies even if the appellant possessed the methylamphetamine with an intent only to supply the drug to another. Having regard to the maximum penalty, the standards of sentencing customarily imposed, the serious circumstances of the offence, the appellant's personal circumstances and the mitigating factors, most significantly the plea of guilty, it cannot reasonably be inferred that the sentencing judge erred in imposing a sentence of 3 years 6 months' immediate imprisonment. The sentence that was imposed, having regard to all of the relevant circumstances, was commensurate with the seriousness of the offence. It was not unreasonable or plainly unjust.
Orders
The orders that we would make are as follows:
1.Leave to appeal is refused.
2.The appeal is 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 Justice Mazza14 JANUARY 2021
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