Oziewicz v The State of Western Australia
[2018] WASCA 81
•24 MAY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: OZIEWICZ -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 81
CORAM: MITCHELL JA
BEECH JA
ALLANSON J
HEARD: 3 APRIL 2018
DELIVERED : 24 MAY 2018
FILE NO/S: CACR 116 of 2017
BETWEEN: AARON SHANE OZIEWICZ
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: O'NEAL DCJ
File Number : IND 1247 of 2016
Catchwords:
Criminal law and sentencing - Appellant convicted of attempted manufacture of methylamphetamine, possession of methylamphetamine with intent to sell or supply, and possession of MDA with intent to sell or supply - Appellant sentenced to total effective sentence of 7 years and 6 months' imprisonment - Whether individual sentences for attempted manufacture of methylamphetamine manifestly excessive - Whether total effective sentence infringed first limb of totality principle
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(b), s 33
Sentencing Act 1995 (WA), s 6
Result:
Leave to appeal on grounds 1 and 2 granted
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr P D Yovich SC |
| Respondent | : | Ms K C Cook |
Solicitors:
| Appellant | : | Seamus Rafferty Barrister & Solicitor |
| Respondent | : | Director of Public Prosecutions for Western Australia |
Case(s) referred to in decision(s):
Abela v The Queen [2002] WASCA 279
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Brady v The Queen [2003] WASCA 154
Cabassi v The Queen [2000] WASCA 305
Dooling v The State of Western Australia [2011] WASCA 95
Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483
Evans v The State of Western Australia [2017] WASCA 225
Gaskell v The State of Western Australia [2018] WASCA 8
Giglia v The State of Western Australia [2010] WASCA 9
Grant v The State of Western Australia [2017] WASCA 162
Gullello v The State of Western Australia [2011] WASCA 261
Headley v The Queen [2004] WASCA 88
Hickling v The State of Western Australia [2016] WASCA 124
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Lim v The Queen [1999] WASCA 296
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Milenkovski v The State of Western Australia [2014] WASCA 48
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Perry v The State of Western Australia [2012] WASCA 123
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Pallister [2002] WASCA 68
Roffey v The State of Western Australia [2007] WASCA 246
Rumenos v The State of Western Australia [2011] WASCA 59
Shipley v The Queen [2003] WASCA 247
Skinner v The State of Western Australia [2012] WASCA 99
Tai v The State of Western Australia [2016] WASCA 234
The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373
The State of Western Australia v Charles [2016] WASCA 108
The State of Western Australia v Jenkin [2011] WASCA 171
The State of Western Australia v Johnson [2010] WASCA 187
White v The State of Western Australia [2007] WASCA 119
Wong v The Queen[2001] HCA 64; (2001) 207 CLR 584
Worth v The Queen [2001] WASCA 303
JUDGMENT OF THE COURT:
The appellant was convicted on his plea of guilty to four offences:
•attempted manufacture of methylamphetamine (two charges), contrary to s 6(1)(b) and s 33(1) of the Misuse of Drugs Act 1981 (WA);
•possession of methylamphetamine with intent to sell or supply, contrary to s 6(1)(a); and
•possession of 3,4 Methylenedioxyamphetamine (MDA) with intent to sell or supply, contrary to s 6 (1)(a).
The appellant was sentenced on 26 May 2017 to imprisonment for 7 years and 6 months. The sentence was made up in this way:
Count 1
Attempted manufacture of methylamphetamine
3 years
Count 2
Attempted manufacture of methylamphetamine
3 years 10 months
Count 3
Possession of methylamphetamine with intent to sell or supply
2 years 6 months
Count 4
Possession of MDA with intent to sell or supply
8 months
The sentences on counts 1, 2 and 4 were ordered to be served cumulatively, with count 3 concurrent.
The grounds of appeal
Grounds 1 and 2 contend that the sentence imposed for each count of attempted manufacture was manifestly excessive. Ground 3 challenges the overall sentence as infringing the first limb of the totality principle. The appellant does not separately challenge the sentences on counts 3 and 4.
Leave was granted on ground 3, with the application for leave on grounds 1 and 2 referred to the hearing of the appeal.
The facts of the offending
The appellant, through counsel, admitted the statement of material facts. In summary, the facts presented were as follows.
Count 1
On 13 November 2015, police officers executed a search warrant at premises in Bayswater. They found a sufficient combination of chemicals and apparatus to manufacture methylamphetamine by a method known as the Birch reduction or Nazi method. Methylamphetamine and pseudoephedrine were found to be present in several items, and indicated that methylamphetamine had been manufactured earlier from pseudoephedrine. The appellant's fingerprints were on several items. His explanation was that he was helping a friend to clean up.
Count 2
On 30 May 2016, police officers executed a search warrant at the appellant's home in Camillo. In the carport, back garden shed, and bins, they located a sufficient combination of chemicals and apparatus to manufacture methylamphetamine by the Birch reduction method, and items consistent with the manufacture of methylamphetamine.
Counts 3 and 4
In the search on 30 May 2016, the police also located:
(1)a large clip seal bag containing a quantity of brown powder;
(2)a bag containing 20 Panadol capsules which had been emptied and the contents replaced;
(3) a bag containing 22.9 g of off-white powder; and
(4) a small bag containing 0.84 g of powder.
MDA (22%) and methylamphetamine (6%) were components of the brown powder in the bag and in 15 of the Panadol capsules. MDA and methylamphetamine (we assume in different concentrations) were found in the other five Panadol capsules. The total amount of MDA found was 10.15 g.
The 22.9 g of off-white powder contained 65% methylamphetamine. Methylamphetamine was a component of the small bag of powder. The total amount of methylamphetamine found was 23.74 g.
Police officers also found items consistent with dealing in drugs, including:
(1) a set of scales;
(2)a spoon;
(3)empty unused clip seal bags;
(4)a list of amounts in dollars as well as names;
(4)dimethyl sulfone; and
(5)a loaded sawn-off shotgun and ammunition.
The statement of material facts did not state the quantity or purity of methylamphetamine which could be, or was likely to be, produced from the chemicals found on either occasion.
Other matters relevant to sentence
Although the first offence was committed about six months before the other offences, the appellant had not been arrested for the first offence and was not on bail at the time of the later offences.
The appellant did not manufacture the methylamphetamine found at his premises, the subject of count 3, but purchased it.
The appellant was, at the time, addicted to methylamphetamine and using at least one gram a day. His partner also used methylamphetamine.
The appellant accepted that he was involved in dealing drugs in a commercial drug dealing operation, with the money obtained being used to purchase the next quantity of methylamphetamine.[1] Counsel for the appellant submitted to the sentencing judge:
[He] tried to make it obviously to satisfy his own addiction and he would also purchase it in quantities for his own addiction, for the addiction of his partner and also to on sell to others and that is the basis upon which he is to be sentenced
… This was a commercial enterprise but it was a commercial enterprise involving a person who was in the grip of an addiction to this substance…[2]
[1] AB 39.
[2] AB 40.
Counsel for the appellant also stated, and it was not challenged, that the manufacture did not take place at the home in Camillo, but in bushland.
The appellant's personal circumstances
The appellant was 34 at the time of sentencing. He was in a relationship, and had three children from an earlier relationship.
The appellant has a trade and a history of employment.
The appellant has been using drugs for many years, perhaps from the age of 16. He was addicted to methylamphetamine at the time of the offences.
The appellant's record of prior offending includes two convictions in December 2012 for manufacturing a prohibited drug, for which he received a total effective sentence of 3 years and 10 months. The two offences were committed in March 2011 and November 2011. The term of imprisonment was ordered to commence from 19 October 2011. The appellant was granted parole on this sentence,[3] which he would have completed only months before the first of the offences in the present indictment.
[3] ts 13.
The sentencing judge's comments
The sentencing judge said that the appellant's offending could not be described as uncharacteristic. While the appellant was not to be punished again for past offending, he had demonstrated a continuing attitude of disobedience such that retribution, deterrence and the protection of society warranted greater prominence.
The sentencing judge referred to the weight of the prohibited drug found in the appellant's possession as a relevant factor, and described the quantity in count 3 as significant. That finding is not challenged.
Further, the sentencing judge found that there was a commercial purpose behind the offences in the appellant's intention to sell the drugs he had. His Honour said:
[The] notion that somebody sells drugs to fund their illicit drug use is not of itself mitigating. There is no principle that dealers or indeed manufacturers who are also drug addicts should be treated more leniently merely because their motive for dealing or manufacturing is the need for more money to finance their drug habit.[4]
[4] AB 23.
His Honour accepted however that the appellant's own drug use at least reduced the amount of drugs that would be supplied onwards.
The appellant pleaded guilty at the first reasonable opportunity and received a 20% reduction in the head sentence. The appellant does not challenge the extent of the reduction. He was also given credit for participating in rehabilitation programs while on remand.
The sentencing judge pronounced the terms he considered appropriate, and then addressed questions of accumulation, concurrence and totality. The result was that the sentence for count 4 was reduced from 12 months to 8 months and the sentences for counts 1, 2 and 4 were ordered to be served cumulatively. The total effective sentence imposed was imprisonment for 7 years and 6 months, commencing 30 May 2016. The appellant was made eligible for parole.
Sentencing considerations
The task of the sentencing judge is to take account of all relevant factors, which will frequently pull in different directions, and arrive at a single result that is just in all the circumstances.[5] This finds expression in s 6 of the Sentencing Act 1995 (WA), which provides:
(1)A sentence imposed on an offender must be commensurate with the seriousness of the offence.
(2)The seriousness of an offence must be determined by taking into account ‑
(a)the statutory penalty for the offence; and
(b)the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and
(c)any aggravating factors; and
(d)any mitigating factors.
[5] Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 [27]; Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [75]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [37].
Principles relevant to the sentencing of particular offences or classes of offences have been developed in earlier decisions of the Court of Appeal and its predecessor, the Court of Criminal Appeal. The following considerations and principles are applicable to the offences the subject of this appeal, and the circumstances in which they were committed.[6]
[6] The appellant does not challenge any of the individual sentences for possession with intent. Ground 3, however, requires the court to consider the overall criminality of the appellant's conduct and the sentences imposed on counts 3 and 4.
First, each offence committed by the appellant has a statutory penalty of imprisonment for a term of 25 years or a fine of $100,000 or both.
Second, general deterrence is a primary or dominant sentencing consideration for offences under both s 6(1)(a) and s 6(1)(b) of the Misuse of Drugs Act. Matters personal to an offender are not completely irrelevant but will almost always be subsidiary considerations.[7]
[7] The State of Western Australia v Charles [2016] WASCA 108 [34]; Milenkovski v The State of Western Australia [2014] WASCA 48 [179], [189]; The State of Western Australia v Jenkin [2011] WASCA 171 [14]; Rumenos v The State of Western Australia [2011] WASCA 59 [39]; The State of Western Australia v Johnson [2010] WASCA 187 [17]; White v The State of Western Australia [2007] WASCA 119 [39] ‑ [43].
Third, the sentencing judge should take into account all surrounding circumstances relevant to the commission of the offence, including the nature and level of the offender's participation in drug dealing and manufacture, and whether the offending was for commercial gain. The fact that the conduct constituting a particular offence was not an isolated transaction but part of a commercial drug dealing enterprise is a relevant circumstance that aggravates the seriousness of the offending.[8]
[8] Gullello v The State of Western Australia [2011] WASCA 261 [41].
Fourth, it is not of itself mitigatory that the offender sold drugs to fund his illicit drug use.[9]
[9] See Hickling v The State of Western Australia [2016] WASCA 124 [34] and the cases there cited.
Fifth, persistence in offending may emphasise the need for personal deterrence.[10]
[10] Tai v The State of Western Australia [2016] WASCA 234 [34].
Sixth, personal deterrence is also a relevant consideration in sentencing for criminal conduct which shows disregard for the safety of the public.[11]
[11] Tai v State of Western Australia [34].
Specifically in relation to the offence of attempting to manufacture methylamphetamine, the court has said:[12]
(1)The process of manufacturing methylamphetamine involves a conscious decision to bring into existence an illegal and dangerous substance.
(2) The process uses toxic and explosive materials and is dangerous. It puts at risk the offender, others nearby, law enforcement officers, and any emergency personnel who may be called to the scene. The danger inherent in the process is a significant element in its criminality.
(3) The maximum penalty prescribed applies regardless of whether the manufacture is for commercial purposes or for personal use, reflecting the policy of the Act of deterring people from bringing a highly addictive and dangerous drug into existence.[13]
(4)Whether an attempt should be treated as less serious than the completed offence depends on the circumstances of the case. Where the offender has all the necessary materials to undertake the manufacturing process the attempt may be no less serious than the completed offence.[14]
[12] See Tai v State of Western Australia [29] - [33]; Perry v The State of Western Australia [2012] WASCA 123 [40] - [41].
[13] R v Pallister [2002] WASCA 68 [31].
[14] Dooling vThe State of Western Australia [2011] WASCA 95 [9].
Other general factors influence sentencing: the plea, and when it is entered; the prevalence of a particular offence; and sentencing patterns. Even where personal factors are given less weight, they remain relevant and matters such as youth, prior record, and co-operation with the authorities, may be taken into account.
Principles on appeal
In an appeal against sentence, the discretion conferred on the sentencing judge is of fundamental importance. Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge-made law. In Markarian v The Queen, Gleeson CJ, Gummow, Hayne and Callinan JJ said:
Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. [15]
[15] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.
Reasonable consistency is an element of a fair system.[16] Like cases should be treated in like manner. In Hili v The Queen, the plurality said:
Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.
The consistency that is sought is consistency in the application of the relevant legal principles.[17]
[16] Wong v The Queen [6] ‑ [7]; DPP vDalgleish [2017] HCA 41 [49].
[17] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [48] ‑ [49].
The sentence imposed in a particular case does not itself give rise to a binding precedent. In Wong v The Queen, Gaudron, Gummow and Hayne JJ said:
What may give rise to precedent is a statement of principles which affect how the sentencing discretion should be exercised, either generally or in particular kinds of case …
… recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. [18]
[18] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [57] ‑ [59].
The sentences imposed in other cases have been described as a 'yardstick' which may assist in determining whether a sentence in a particular case is shown to be plainly unjust. In Barbaro v The Queen, French CJ, Hayne, Kiefel and Bell JJ said:
…in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. [19]
[19] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [41]; see also Hili v The Queen [54].
It is still important to refer to other cases, both for statements of principle, and as a guide in achieving consistency. But just as sentencing requires the weighing and balancing of many and complex considerations, those considerations must be taken into account in considering whether the sentences upheld or imposed on appeal are truly comparable.
The grounds
All three grounds rely upon an allegation of implied error - that the end result is so unreasonable or unjust that the court must conclude that there has been some misapplication of principle.
In determining whether a sentence is manifestly excessive, as alleged in grounds 1 and 2, the court must examine the sentence imposed by reference to the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
Ground 3 invokes the first limb of the totality principle: 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, 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.[20] This ground also requires the appellant to show that, although no express error is apparent from the reasons of the sentencing judge, the result cannot be reconciled with the proper exercise of sentencing discretion. The appellant must demonstrate that the sentence imposed was unreasonable or plainly unjust.
[20] Gaskell v The State of Western Australia [2018] WASCA 8 [127].
Cases in which an offender has been sentenced for multiple offences of the type under consideration may also provide 'broad guidance' on whether a total effective sentence offends the totality principle. Sentences imposed in other cases are relevant to whether there has been an infringement of the first limb of the totality principle, to ensure broad consistency and to avoid the risk of idiosyncratic and arbitrary outcomes. [21]
The use of comparative cases in this appeal
[21] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [3] (Steytler P & McLure JA agreeing).
The appellant relied upon a group of cases which, it was submitted went specifically to whether the totality principle was infringed, but were relied upon also in relation to the first two grounds.
Senior counsel for the appellant referred to the following factors, derived from the cases, which bear on the seriousness of the offence:
(1) the scale of the operation, including the yield or potential yield of the drug to be manufactured;
(2)the role played by the offender, whether as a principal, joint principal or aider;
(3)the nature of the commerciality in the offending;
(4)the degree of danger to others posed by the manufacturing process and the chemicals used; and
(5)persistence in the offending conduct.
As we have indicated earlier in these reasons, all of the factors identified by counsel are relevant considerations in sentencing for offences under s 6(1) of the Misuse of Drugs Act.
Counsel submitted that when the present offences are considered by reference to those factors and the cases cited for comparison, the appellant's conduct falls towards the lower end of seriousness.[22] And while the appellant has little to put forward in mitigation, he did plead guilty at an early stage and the sentencing judge gave him credit for the steps towards rehabilitation that he had undertaken while in custody.
[22] Appeal ts 4.
It is, in our opinion, important to recognise limitations in comparing a sentence with sentences which were not disturbed on appeal. First, the dismissal of an appeal against sentence does not fix the limits of an appropriate exercise of discretion. Second, the result on appeal may turn on the basis on which the sentence was challenged, or some particular features of the way the case was presented before the sentencing judge or on appeal.
For example, the case of Skinner v the State of Western Australia,[23] relied on by the appellant, is exceptional for many reasons. The offender pleaded guilty, on indictment, to 50 charges including one count of attempting to manufacture methylamphetamine and two counts of manufacturing methylamphetamine. He also was sentenced for 10 further offences on a notice under s 32 of the Sentencing Act. The first of the manufacturing offences was committed several months after he had been arrested and bailed for the other offences, and had breached his bail; the second was committed after he had, again, been released to bail. It may be accepted that the overall criminality of the offending conduct, by reference to the number of offences and the repeated offending while on bail, was greater than that of the appellant.
[23] Skinner v The State of Western Australia [2012] WASCA 99.
The offender was sentenced to imprisonment for 8 years, including cumulative terms of 18 months for the offence of attempting to manufacture methylamphetamine, and 2 years 6 months and 3 years for the two offences of manufacturing methylamphetamine. The resulting sentence has since been explained, in part, on the basis that the State did not ask the sentencing judge to find, as an aggravating feature, that there was a commercial aspect to the manufacturing and the sentencing judge said that he did not, for the purposes of sentencing, have regard to any element of commerciality in the offender's efforts to produce methylamphetamine.[24] It is unnecessary to consider the extent to which this may be seen to have influenced the sentencing outcome in Skinner.[25] For the purposes of comparison in the current matter, it is important that the only ground pursued on the appeal in Skinner was that the total effective sentence of 8 years' imprisonment offended the first limb of the totality principle, when it plainly did not. The appeal court did not purport to give a decision which in any way marks the boundaries of the range of sentences within the proper exercise of the sentencing discretion.
[24] Skinner v The Queen at [19] See Grant v The State of Western Australia [85] Evansv The State of Western Australia [27].
[25] As to which, see Skinner v The Queen [24] ‑ [25] (Pullin JA, Mazza JA agreeing); [74] ‑ [75] Buss JA.
In Tai v The State of Western Australia[26] the court dismissed an appeal on the ground of totality against a total effective sentence of 5 years' imprisonment for one offence of manufacture and one offence of attempting to manufacture methylamphetamine. The offender pleaded guilty, but not at the earliest reasonable opportunity. The judge found that the manufacture was not purely commercial, but also that he could not be satisfied it was purely for the offender's personal use.
[26] Tai v The State of Western Australia [2016] WASCA 234.
An important factor in judging the seriousness of the offender's conduct was the risk to which the offender exposed others. The first offence led to an explosion in a rented room in an apartment complex, and the offender again manufactured methamphetamine in a rented room about three months later. In this respect, the offences in Tai were markedly more serious than the present matter.
The reasons in Tai contain several important statements of principle regarding relevant considerations in sentencing for the offence under s 6(1)(b) of the Misuse of Drugs Act. It also demonstrates the importance of specific deterrence where the offender has persisted in an unlawful and dangerous activity. Imprisonment for 5 years was held to not offend the first limb of the totality principle. The use of the sentence for the purposes of comparison with the present matter is limited.
Four of the cases relied upon arose before the transitional provisions of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) came into operation. In effect, for purposes of comparison, all sentences imposed before the operation of those provisions should be reduced by one-third.
In Shipley v The Queen[27] the offender was convicted of two counts of manufacturing methylamphetamine, and one count of assaulting a public officer. There was evidence of possible maximum yield, at a purity of 90%, and a finding that he was running, at the very least, a medium scale operation. The offender had a long history of offending going back 40 years. He pleaded guilty but the plea 'did not come early'.[28] He was sentenced to 9 1/2 years' imprisonment. The sentence was found not to be manifestly excessive.
[27] Shipley v The Queen [2003] WASCA 247.
[28] Shipley [16].
The only wholly successful appeal on which the appellant relies is Brady v The Queen,[29] where a total effective sentence of imprisonment of 9 1/2 years (pre‑transitional) for manufacture of methylamphetamine (6 years) and possession of methylamphetamine with intent to sell or supply (3 1/2 years, wholly cumulative), was reduced to 6 years on appeal. The offender entered a plea of guilty just prior to trial. The appeal was allowed on the basis that there was an element of 'double counting' in imposing a wholly cumulative sentence when the offender's intention to supply the methylamphetamine that he had produced had been found to be a factor which aggravated the offence of manufacture; and when the clear inference was that the drug the subject of the possession charge had been produced on that day in the manufacture the subject of the first charge.[30] For that reason, Brady is not truly comparable with the appeal under consideration.
[29] Brady v The Queen [2003] WASCA 154.
[30] Brady v The Queen [23] - [25] (Wheeler J, Hasluck J agreeing).
In Abela v The Queen[31] the offender received concurrent sentences of 7 years for four counts of manufacturing 1-phenyl-2‑nitropropene (a halfway stage in the manufacture of amphetamine and itself a prohibited drug) and two counts of manufacturing amphetamine. The offender pleaded guilty to those offences. It was accepted that the inference could be drawn that the offender and his associates intended to produce 1 kg of amphetamine with a purity of between 70% and 80%. The reasons in Abela, together with Worth v The Queen,[32] Lim v The Queen[33] and Cabassi v The Queen,[34] reflect the relevance of the actual or potential yield to overall culpability, as an indication that the manufacture or attempted manufacture 'was carried out as part of a sophisticated and ongoing operation requiring premeditation and careful planning, in the course of a scheme to distribute the drug into the community for a profit.'[35] In that respect, the offending in Abelawas more serious than that in the present appeal.
[31] Abela v The Queen [2002] WASCA 279.
[32] Worth v The Queen [2001] WASCA 303.
[33] Lim v The Queen [1999] WASCA 296.
[34] Cabassi v The Queen [2000] WASCA 305.
[35] Abela v The Queen [2002] WASCA 279 [40] Malcolm CJ; [85] ‑ [86] Steytler J.
The potential yield of 1 kg, as a guide to the criminality involved in the manufacture, was the result of six separate manufacturing processes, each separately charged. The court held that the sentencing judge was required to impose appropriate sentences for each of the component parts of the process, each the subject of a separate count, and not a global sentence of 7 years' imprisonment.[36] The appeal was allowed and the sentences for individual counts were varied. If all of the sentences as varied were imposed cumulatively, the result was a total sentence of 14 years' imprisonment. On the basis of the totality principle, the court held the result would be crushing, and a total of 7 years (8 years taking into account a separate sentence for breach of bail) was maintained. The factual situation, and the basis on which the appeal was decided, very substantially limit any comparison with the sentence imposed in the present case.
[36] Abela v The Queen [2002] WASCA 279 [37] ‑ [38].
In Headley v The Queen,[37] the offender pleaded guilty on three indictments to offences of manufacturing methylamphetamine, possession of methylamphetamine with intent to sell or supply (two counts), attempting to manufacture methylamphetamine, and possession of heroin with intent. The first offence was committed about 14 months before the remaining counts. The offender was also to be dealt with in relation to a suspended imprisonment order. Grounds of appeal relating to parity and failure to take into account the appellant's personal circumstances, were not made out. A total sentence of 10 years' imprisonment, following pleas of guilty on all charges and early pleas on all but one charge, was held not to be disproportionate to the conduct.
[37] Headley v The Queen [2004] WASCA 88.
In considering the earlier cases, it is also necessary to take into account the comments in White v The State of Western Australia, where Miller AJA (Steytler P agreeing) and McLure JA referred to the firming up of sentences in drug cases generally, and particularly in relation to possession of methylamphetamine with intent to sell or supply and also in manufacturing cases, since those cases were decided.[38] In White, the offender was sentenced to 4 years for a single count of manufacturing methylamphetamine. An appeal on the ground of manifest excess was dismissed.
[38] White v The State of Western Australia [7], [43]; see also Skinner [30].
Finally, reference was made to three recent decisions.
In Evans v State of Western Australia[39] the court refused leave to appeal a total effective sentence of imprisonment for 8 years 2 months on two indictments. The first indictment alleged an offence of manufacture of methylamphetamine on 27 September 2012, and two offences of possession of methylamphetamine with intent to sell or supply on 27 September 2012 and on 3 January 2013. The second indictment alleged one offence of attempt to manufacture methylamphetamine on 23 February 2015.
[39] Evans v The State of Western Australia [2017] WASCA 225.
The quantities of methylamphetamine in the two possession offences were 29.4 g and 10.34 g. The second offence of possession with intent was committed while the offender was on bail. He was again bailed and absconded, and committed the last offence while at large. The persistence in offending in these circumstances is a serious aggravating factor.
The offender entered early pleas to the first indictment and a fast track plea of guilty to the second indictment. The court imposed sentences of immediate imprisonment for 3 years 4 months (reduced from 3 years 6 months for time spent in custody) for the offence of manufacture; 2 years 10 months and 1 year 8 months for the offences of possession; and, on the second indictment, 3 years and 2 months for the attempt to manufacture.
An application for leave to appeal, on the single ground that the total effective sentence infringed the first limb of the totality principle, was refused. The court said that the overall criminality was high, particularly having regard to the persistence and commerciality of the offending, and apart from the pleas of guilty, there was very little mitigation.
The second of the recent cases is Grant v The State of Western Australia.[40] The offender was convicted after trial of offences of manufacturing methylamphetamine, possession of methylamphetamine with intent to sell or supply, possession of cocaine with intent to sell or supply, and possession of dexamphetamine with intent to sell or supply (2 counts). He was sentenced to a total effective sentence of 6 years and 6 months' imprisonment.
[40] Grant v The State of Western Australia [2017] WASCA 162.
The sentencing judge found the appellant's manufacturing was not highly sophisticated, but was more sophisticated than those typically seen in the court. His Honour concluded that the manufacture was a commercial effort directed at production for on-sale, and not primarily, or even significantly, for the appellant's own use. The judge further concluded that the offender's involvement in trafficking was at least at a level about the middle of the hierarchy of the drug industry in this State.
The offender was sentenced to imprisonment for 3 years and 6 months for manufacturing methylamphetamine, and to imprisonment for 3 years for possession. Those sentences were to be served cumulatively. The sentences for possession of cocaine (12 months) and possession of dexamphetamine (6 months on each) were ordered to be served concurrently.
The offender was 26 at the time of the offending. He had a history of work and educational accomplishments. The offender had no prior criminal record, although he admitted that he had been a consumer of drugs before he was arrested. An appeal on the ground of totality was dismissed.
The conduct was more serious than the facts of the appellant's offending. And there was no mitigation from a guilty plea. But the case is not truly comparable. All of the offences were the result of a police search on one occasion, and there was only one count of manufacturing. Also, the offender's age and antecedents compared very favourably with the present appellant.
In Valerio v State of Western Australia,[41] the offender was convicted at trial of one count of aggravated manufacture of a prohibited drug, namely dimethyltryptamine. The offence was committed in a house in which there was a 7‑year‑old child. The mixing of ingredients in the process of manufacture had resulted in a fire.[42]
[41] Valerio v The State of Western Australia [2017] WASCA 167.
[42] By Misuse of Drugs Act, s 34(4), the offence was aggravated because committed in circumstances where the acts constituting the offence endangered the life, health or safety of a child under 16 years of age. The circumstance of aggravation limited the type of sentence that could be imposed, but not the maximum penalty.
The offender was sentenced to imprisonment for 3 years 4 months. On appeal, the court held that the sentence could not be said to be manifestly excessive. Leave to appeal was refused.
The circumstances in Valerio are not comparable because there was a single count, not multiple offences; the judge found that the manufacture was for the use of the offender and his partner and not for commercial purposes; and the judge also reduced the penalty to take into account another offence for which the appellant had served 8 months in custody.
In summary, none of the cases referred to the appellant is closely comparable. Together they illustrate important considerations in assessing the seriousness of offences against s 6(1)(b) of the Misuse of Drugs Act, including offences of attempting to manufacture, where the drug is methylamphetamine.
Disposition
Grounds 1 and 2
Counsel submitted that, by reference to the factors identified in the cases, the appellant's offending was towards the lower end of the range of seriousness. More serious examples of the relevant considerations, either alone or in combination, can be identified in the authorities he referred to. But when regard is had to the combination of the identified factors, the appellant's offending is not properly characterised as towards the lower end of the range of seriousness.
The appellant admitted, as a material fact, that the chemicals and equipment found on each occasion was sufficient to manufacture methylamphetamine. The admitted facts do not enable an estimate of the drug yield which might have been expected from either manufacturing operation. There was, however, evidence that some of the drug had been produced in each operation. Each count of attempting to manufacture was, accordingly, in the context that the appellant had manufactured drugs using the equipment found and had materials sufficient to manufacture more.
While the appellant was himself addicted, he admitted to a commercial purpose in selling drugs at a profit to assist in the purchase of the next quantity of methylamphetamine. On the second occasion, the search located items consistent with dealing in drugs, including scales, unused clip-seal bags, and the list, and also a weapon. The sentencing judge correctly stated the principle that the notion that the appellant sold drugs to fund his illicit drug use is not of itself mitigatory.[43]
[43] See Hickling v The State of Western Australia [2016] WASCA 124 [34] and the cases there cited.
The two offences of attempted manufacture were six months apart, with the second committed after the police had located the first operation. The appellant had two previous convictions for manufacture of a prohibited drug, and the present offences were committed relatively soon after the completion of the parole period of the previous sentence of imprisonment. The appellant is to be sentenced only for the offences on which he was convicted, but his Honour did not err in regarding persistence in offending as a factor that emphasises the need for personal deterrence.[44]
[44] Tai v The State of Western Australia [2016] WASCA 234 [34].
Personal deterrence is also a relevant consideration in sentencing for criminal conduct which shows disregard for the safety of the public. The danger inherent in manufacturing methylamphetamine is a significant element in its criminality.[45] The element of risk in this case was not so extreme as in Tai, and was not realised as it was in Valerio. But the appellant was storing the materials for manufacture in a residential area, and - on what was submitted at the sentencing hearing ‑ was manufacturing in bushland.
[45] Rumenos v The State of Western Australia [2011] WASCA 59 [35].
Comparison with the cases relied on by the appellant shows that the terms of imprisonment imposed on the appellant were longer than those that have been upheld in this court on other offenders whose conduct was at least as serious. The individual sentences on counts 1 and 2 in this case can fairly be described as high. However, none of the other cases are closely comparable to the present case. Bearing in mind:
(1)there has been a firming up in sentences for offences of this nature;
(2)the differences in the facts and circumstances of the respective offending and offenders;
(3)there is no single correct sentence; and
(4)all of the relatively recent cases on which the appellant relies were the dismissal of an appeal by the offender;
the sentences imposed in this case are broadly consistent with the sentences imposed in other cases. Further, by reference to those considerations relevant to seriousness of offending, reflected in the authorities, and the maximum penalty set by the legislature for each offence, we are not satisfied that either sentence for attempted manufacture is so high that it manifests an error in, or misapplication of, principle, or that the outcome is unreasonable or plainly unjust.
The appellant should be granted leave on grounds 1 and 2, but these grounds have not been made out.
Ground 3
The principles concerning the first limb of the totality principle are well settled. The ultimate question under the first limb is whether, in sentencing an offender for a number of offences, the sentencing judge settled upon a total sentence which bore a proper relationship to the overall criminality involved in all of the offences viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally. This may be achieved by appropriate orders for accumulation or concurrency of sentences, or even the reduction in the length of appropriate sentences.[46] The sentencing judge reduced the sentence on count 4, and made that on count 3 wholly concurrent to achieve an appropriate total.
[46] See Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [45]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307 ‑ 308, 339 ‑ 340; Roffey v The State of Western Australia [2007] WASCA 246 [24] - [26].
In considering whether the total effective sentence infringes the first limb of the totality principle, the court applies similar considerations to those applied when deciding whether the individual sentences are excessive. In addition, the court might have regard to the severity of the individual sentences.[47]
[47] Giglia v The State of Western Australia [2010] WASCA 9 [40].
When compared with the cases relied upon, both the individual sentences and the total effective sentence imposed are high. But when regard is had to all relevant factors, we are not satisfied that the total has been shown to be unreasonable or plainly unjust. In the consideration of grounds 1 and 2, we have set out the factors which show that this series of offences demonstrates serious criminality. See [79] ‑ [83].
The seriousness of the appellant's offending is reflected in each of his four offences having a maximum sentence of 25 years' imprisonment.
The appellant's criminality had several distinct elements. The first attempted manufacture of methylamphetamine occurred about six months before he committed the second such offence. As the sentencing judge found, that called for an element of accumulation in the sentences for counts 1 and 2. Further, the appellant's offences of possession of methylamphetamine and of MDA were each distinct from his attempts to manufacture. Those drugs were found with a number of the indicia of dealing.[48] Again, a further degree of accumulation was warranted. The offence of possession of methylamphetamine with intent to sell or supply was itself a serious offence, reflected in the sentence of 2 years 6 months' imprisonment. That sentence was ordered to be served concurrently, but this offence was an additional significant element in the appellant's overall criminality.
[48] See [12] above.
The appellant had previous convictions of manufacturing and attempted manufacturing of a prohibited drug, for which he was imprisoned. He completed his parole for those offences only a few months before he committed the offence the subject of count 1. He then also committed the further offences in counts 2, 3 and 4, including a further offence of attempt to manufacture methylamphetamine. In these circumstances, personal deterrence was, as the sentencing judge observed, a significant factor in the sentencing process.
Importantly, an appellate court may not substitute its opinion for that of the sentencing judge merely because it would have exercised the discretion in a different manner. In Allen v The State of Western Australia the court said:[49]
The rule against appellate courts 'tinkering' with sentences is a corollary of the need for the sentence imposed to be unreasonable or plainly unjust before error of principle can be inferred from the result. It may also be regarded as a corollary of recognising that 'the discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice' and that there is no single unique correct sentence (Lowndes v TheQueen [1999] HCA 29; (1999) 195 CLR 665 [15], as recognised by the Court of Criminal Appeal in Morley v The Queen [2001] WASCA 49 [8]). The absence of a substantial difference between the sentence which the appellate court regards as appropriate and the sentence imposed at first instance is inconsistent with a characterisation of the result at first instance as unreasonable or plainly unjust (as opposed to simply reflecting a different exercise of the sentencing discretion on a proper application of the principles).
[49] Allen v The State of Western Australia [2017] WASCA 203 [66].
In the end, taking into account the circumstances of the offending, the appellant's plea of guilty and all relevant sentencing principles, the overall sentence does not reach, although it approaches, a length which could be properly characterised as unreasonable or plainly unjust. If the overall sentence had been any longer, the position may well have been different. Thus, we are not persuaded that the total effective sentence is so high as to compel the inference that there has been some misapplication of principle in the exercise of the sentencing judge's discretion. That is, we are not satisfied that the total effective sentence was disproportionate to the overall criminality involved in all of the offences viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the appellant personally.
Leave has been granted on ground 3. However, the ground has not been made out.
Conclusion
For these reasons we would make the following orders:
1.Leave to appeal on grounds 1 and 2 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.
LW
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE BEECH21 MAY 2018
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