Penney v The State of Western Australia - [2011] WASCA 71

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PENNEY -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 71

CORAM: McLURE P
BUSS JA

HEARD: 25 FEBRUARY 2011

DELIVERED : 23 MARCH 2011

FILE NO/S: CACR 125 of 2010

BETWEEN: MARK ROBERT PENNEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :BOWDEN DCJ
File No  :IND 413 of 2010

Catchwords:

Criminal law - Appeal against sentence by offender - Possession of 3.09 kg of cocaine (about 65% purity) and 5.76 kg of methylamphetamine (10% - 12% purity) with intent to sell or supply - Total effective sentence of 13 years' imprisonment - Whether totality principle infringed - Turns on own facts

Legislation:

Criminal Code (WA)
Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S Vandongen SC
Respondent: No appearance

Solicitors:

Appellant: Peter Ash & Associates
Respondent: Director of Public Prosecutions (WA)

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

Bellissimo v The Queen (1996) 84 A Crim R 465
Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152
Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49
Civello v The State of Western Australia [No 2] [2008] WASCA 163
Coleski v The State of Western Australia [2008] WASCA 260
Kirby v The Queen [2003] WASCA 164
Quach v The Queen [1999] WASCA 210
Sinagra‑Brisca v The Queen [2004] WASCA 68
Swains v The State of Western Australia [2007] WASCA 251
The State of Western Australia v Higgins [2008] WASCA 157
The State of Western Australia v Toothill [2007] WASCA 236
The State of Western Australia v Tran [2008] WASCA 183
Tran v The State of Western Australia [2010] WASCA 38
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

McLURE P: I agree with Buss JA.
BUSS JA: The appellant was convicted in the District Court, on his pleas of guilty, of:
(a)two counts in an indictment, namely, possession of 3,092.1g of cocaine (having a purity of about 65%) with intent to sell or supply it to another (count 1) and possession of 5,763.6 g of methylamphetamine (having a purity of between 10% and 12%) with intent to sell or supply it to another, contrary in each case to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA); and
(b)three charges pursuant to a notice under s 32 of the Sentencing Act 1995 (WA), being possession of property ($854,550 cash) reasonably suspected of having been unlawfully obtained, contrary to s 428(1) of the Criminal Code (WA); possession of a prohibited drug (cocaine) and possession of another prohibited drug (methylamphetamine), contrary in each case to s 6(2) of the Misuse of Drugs Act.
The sentencing judge, Bowden DCJ, imposed terms of immediate imprisonment, as follows:
(a)count 1 in the indictment: 9 years;
(b)count 2 in the indictment: 4 years cumulative;
(c)possession of $854,550 cash, reasonably suspected of having been unlawfully obtained: 18 months concurrent;
(d)possession of cocaine: 1 month concurrent;
(e)possession of methylamphetamine: 1 month concurrent.
The total effective sentence was therefore 13 years' immediate imprisonment. A parole eligibility order was made.
The appellant has applied to this court for leave to appeal against sentence.

The material facts and circumstances of the offending

The material facts and circumstances of the offending are these.
On 29 May 2009, police stopped a motor vehicle on Toodyay Road, Gidgegannnup. The vehicle had been hired by the appellant in Sydney on

26 May 2009. When it was stopped, the vehicle was being driven by an associate of the appellant, and the appellant was sleeping in the vehicle. The appellant and his associate had driven from New South Wales to Western Australia.

The police searched the vehicle and found quantities of cocaine and methylamphetamine hidden in three scuba diving tanks. The cocaine and methylamphetamine had been packed in vacuum sealed plastic bags.
The police found a set of keys in the appellant's possession. These keys opened a factory unit in a warehouse facility at Balcatta. Another key, also found in the appellant's possession, opened a caravan in the factory unit. In the caravan, the police located numerous items, including a heat sealing machine, rolls of heat‑seal bags, a set of digital scales, boxes of rubber gloves, a face mask, a large quantity of elastic bands, an envelope and an Alinta Gas account addressed to the appellant, and filter components from an air extractor unit. Methylamphetamine and cocaine were detected in sections of the air filter.
The police also located in the caravan two hard-covered books containing a series of figures. The appellant's fingerprints were on these books. In addition, the police found a money‑counting machine and, inside a box on the floor of the caravan, $843,050 cash and, inside a bag in the caravan, $11,500 cash, making in total $854,550.
A pair of thongs on the floor of the caravan contained a mixed DNA profile. The major component matched the appellant's DNA profile.
In a room in the warehouse facility, the police found five scuba tanks of the same kind as those found in the vehicle hired by the appellant and driven by his associate.
The cocaine and the methylamphetamine, the subject of two of the charges in the s 32 notice, were located by police at the appellant's home address. In particular, 0.45 g of cocaine was in a small plastic jar and 4.54 g of methylamphetamine was in a small vacuum sealed plastic bag in the master bedroom.

The appellant's personal circumstances

The appellant was aged 37 years when he committed the offences and he was 38 at the time of sentencing.
The appellant had an excellent work record. He was, however, addicted to illicit drugs. In 2008 he had been using between 3.5 g and 5 g of methylamphetamine and cocaine each day.
Medical evidence adduced by the appellant suggested that he had a mental disorder. It was not, however, submitted on his behalf that this reduced his moral culpability. It was relied on only as evidence concerning the risk of his re‑offending.
The sentencing judge considered that the appellant was at a low risk of re‑offending and concluded that he had no relevant criminal record at the time of sentencing. The appellant had completed a number of courses while on remand.
The appellant had not previously been imprisoned. His family resides in the Eastern States of Australia.

The sentencing judge's remarks

The sentencing judge noted the appellant's pleas of guilty. His Honour said that the pleas were evidence of remorse and a willingness to accept personal responsibility for his criminal conduct (ts 48). However, the pleas were not on the fast‑track system. Although the appellant pleaded guilty at an early stage, it did not occur at the earliest opportunity (ts 48 ‑ 49).
His Honour found that the appellant's role in the commission of the counts in the indictment placed him in the 'upper range of offending' (ts 47). He was more than a 'mere courier', although his Honour accepted that he was not the 'principal' of the drug distribution network (ts 47).
The sentencing judge then elaborated:
Your role was, amongst other things, that of a courier to courier drugs from point A to point B, you were clearly entrusted with the drugs. You had knowledge of the whereabouts of a large amount of cash, and possession of it. You were entrusted with the key to the unit and also, as I have said, in that unit was a money‑counting machine and packaging facilities.
Insofar as your role is concerned, I sentence you on the basis that you were more than a mere courier. As I have indicated, you had access and possession of the money, access to the packing material, access to the drugs and possession of the drugs, and you were clearly a person who not only was a courier, but was entrusted with those items that I have referred to (ts 47).
His Honour said that the large amount of cash found in the appellant's possession demonstrated that this was a 'large scale [illicit drug] transaction' (ts 49). His Honour found that the appellant's involvement was 'clearly for commercial purposes' (ts 50). Although his Honour accepted that the appellant had had a 'difficult battle with drugs over a long period of time', and that he was using drugs, his primary motivation for committing the counts in the indictment was 'commercial gain; that is, to obtain money to pay off various debts' (ts 50).

The ground of appeal

The appellant does not challenge any of the individual sentences. In particular, he does not allege that the term of 9 years for count 1 or the term of 4 years for count 2 is manifestly excessive.
The sole ground of appeal attacks, in essence, the sentencing judge's order that the 4‑year term for count 2 be served cumulatively upon the 9‑year term for count 1. The ground alleges that the total effective sentence of 13 years offends the first limb of the totality principle.

The merits of the ground of appeal

The maximum penalty for the offence of possession of a prohibited drug with intent to sell or supply it to another is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the Misuse of Drugs Act.
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. See Bellissimo v The Queen (1996) 84 A Crim R 465, 471. 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. See Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [67] ‑ [70]; Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [50]; Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [52]. The degree of purity is often regarded as significant. See The State of Western Australia v Tran [2008] WASCA 183 [9]. Matters personal to an offender will almost always be given reduced weight. See Bellissimo, (469); Tulloh [12], [43], [46].
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. See The State of Western Australia v Higgins [2008] WASCA 157, where Steytler P (McLure & Miller JJA agreeing) said [19]:
As to customary sentencing standards, caution is needed when trying to determine the level of severity of a particular sentence by comparison with those imposed in other cases. That is because there will inevitably be differences in the circumstances of offenders and offences: Tulloh [46] (McLure J, Murray J concurring); Ziino v The State of Western Australia [2007] WASCA 222 [25] (Owen JA, Wheeler & Miller JJA concurring). However, it is helpful to determine whether a general range of sentences can be discerned for like offences by reviewing similar cases, in an attempt to achieve consistency in sentencing: Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 [12] (McLure JA); Ziino [25] (Owen JA, Wheeler & Miller JJA concurring).
Sentencing ranges of the kind discussed in Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49, The State of Western Australia v Toothill [2007] WASCA 236 and Swains v The State of Western Australia [2007] WASCA 251 can provide only general guidance. See Coleski v The State of Western Australia [2008] WASCA 260 [16].
The limits of the guidance afforded by comparable cases are flexible rather than rigid. See Quach v The Queen [1999] WASCA 210 [27].
In Kirby v The Queen [2003] WASCA 164, the offender pleaded guilty on the fast‑track system to one count of possession of cocaine with intent to sell or supply (4.85 g with a purity of 24%) and one count of possession of methylamphetamine with intent to sell or supply (3.168 kg with a purity of 9% ‑ 10%). He was sentenced to 4 years' imprisonment on count 1 and 9 years' imprisonment on count 2. The total effective sentence imposed was 10 years' imprisonment. The offender committed the offences after another person had requested him to make available his premises and other items for the purpose of storing the methylamphetamine before it was returned to the original supplier. The offender had previously been convicted of possession of methylamphetamine with intent to sell or supply it to another. He had been sentenced to 2 years 6 months' imprisonment on that occasion. The offender's appeal against sentence was dismissed. The offender in Kirby was sentenced before the commencement of the 'transitional provisions' introduced by the Sentencing Legislation Amendment and Repeal Act 2003 (WA).
In Sinagra‑Brisca v The Queen [2004] WASCA 68, the offender pleaded guilty on the fast‑track system to four counts of possession of prohibited drugs with intent to sell or supply. The circumstances of the offending were summarised by Wheeler J (Templeman & McLure JJ agreeing), as follows:
Count 1: that on 8 March 2003 at Myaree the applicant had in his possession a prohibited drug (MDMA) with intent to sell or supply. Two other persons went to the applicant's home in Mount Pleasant, the three of them then meeting a female who arranged to supply a quantity of MDMA (ecstasy) tablets. The four offenders then went to a motel in Rockingham in three separate vehicles. A large quantity of ecstasy tablets were purchased. The drugs were placed in the vehicle of one of the applicant's associates and he and the other man followed that vehicle. Police intercepted the vehicle carrying the drugs at the intersection of North Lake Road and Marmion Street. The police attempted to apprehend the applicant but he drove over the median strip and was not apprehended until shortly afterwards (having been involved in an accident with another vehicle). In the vehicle driven by the associate the police found in excess of 10,000 ecstasy tablets, a total of 2,400 grams in weight with a purity of about 27 per cent. Also found in that vehicle was $1675 in cash, which the applicant told the police belonged to him, he having withdrawn it, he said, from a bank account to pay bills. Police executed a search warrant at the applicant's house, locating quantities of drugs in clip-seal bags in the top drawer of his bedside table, and a little under $8000 in cash and jewellery in a drawer in the same bedroom. If the 10,000 tablets had been sold at $50 per tablet on the street, they would, as the learned sentencing Judge found, have raised approximately half a million dollars. In respect of that offence, his Honour imposed a sentence of 17 years and 6 months imprisonment.
Count 2: that on 8 March 2003 at Como the applicant had in his possession a prohibited drug (methylamphetamine) with intent to sell or supply. Following execution of a search warrant at a unit in Como, police located methylamphetamine in a refrigerator in 11 separate sealed plastic bags. In total, the methylamphetamine weighed about 5.06 kilograms and ranged in purity between 21 and 50 per cent, with the majority of it (4.625 kilograms) of a purity between 46 and 50 per cent. Also located at the unit was 'drug paraphernalia', including electronic scales, unused clip-seal bags and sugar; this last was capable of being used as a 'cutting agent'. The unit was rented by the applicant, using a false name, solely for the purpose of storing and preparing the prohibited drugs. The value of the methylamphetamine found in this unit, in its uncut form, was somewhere between $900,000 and $1,000,000. Had it been cut to 'street level', its value would have increased to somewhere between $15,000,000 and $20,000,000. In relation to this count, his Honour also imposed a sentence of 17 years and 6 months imprisonment.
Count 3: that on 8 March 2003 at Ardross the applicant had in his possession a prohibited drug (methylamphetamine) with intent to sell or supply. This arose out of the execution of a search warrant at a unit in Ardross, also rented by the applicant under a false name for the purpose of storing and preparing prohibited drugs. In the refrigerator in that unit police located, in empty orange juice containers, 34 clip-seal bags which contained a total of approximately 800 grams of methylamphetamine. The purity of the drug in these bags ranged from 28 to 70 per cent. The learned sentencing Judge took the view that if that were the only charge facing the applicant, there would have been a 'starting sentence' of 9 years, discounted to 7 years for the plea of guilty and other factors.
Count 4: that on 8 March 2003 the applicant had in his possession a prohibited drug (MDMA) with intent to sell or supply. This count also related to the unit at Ardross, and the finding in the same refrigerator in empty orange juice containers of 55 MDMA (ecstasy) tablets weighing about 14 grams and of about 18 per cent purity. In relation to this count, his Honour imposed a sentence of 3 years imprisonment [4] ‑ [7].
The total effective sentence was 20 years 6 months' imprisonment.
The offender in Sinagra‑Brisca was a significant organiser and dealer in a well‑organised syndicate. He had a previous criminal record for drug offences. His appeal against sentence was dismissed. The offender was sentenced before the introduction of the 'transitional provisions'.
In Tulloh, the offender was convicted after a trial of possessing 805 g of methylamphetamine, with a purity of about 60%, with intent to sell or supply. He was aged 28 years. Although he had a prior criminal record, they were only minor convictions for cultivation of cannabis and possession of an offensive weapon. The offender was sentenced to 15 years' imprisonment. His appeal against sentence was dismissed. The offender was sentenced before the introduction of the 'transitional provisions'. McLure J said that in her assessment, having regard to relevant factual variations, the sentence of 15 years was within a 'relatively consistent sentencing range' [49].
In Civello v The State of Western Australia [No 2] [2008] WASCA 163, the offender was convicted after a trial on three counts of possessing methylamphetamine with intent to sell or supply. The substantial quantity of methylamphetamine found in the offender's possession (381 g, if no account is taken of 156 g with a purity of only about 0.3%) indicated that he was heavily involved in drug dealing. That conclusion was reinforced by the high purity of some of the drugs. The quantity of pure methylamphetamine in the offender's possession was about 220 g. He was knowingly involved in large‑scale dealing for commercial gain. The sentencing judge found that he was 'one step removed, at most' from the manufacturing process and consequently was very high in the drug hierarchy, and that he played an important role in the distribution chain [56]. This court held that the total effective sentence of 10 years' imprisonment, while 'relatively severe', was appropriate [56]. The offender's appeal against sentence was dismissed.
In Tran v The State of Western Australia [2010] WASCA 38, the offender was convicted after a trial on two counts of attempting to possess methylamphetamine with intent to sell or supply. The offender had arranged for a courier to travel to Sydney to collect a quantity of methylamphetamine. The courier returned to Perth with 27.3 g of the drug having a purity of 33%. The individual sentence on this count was 4 years' imprisonment. The next month, the appellant arranged for another courier to perform the same function. This courier returned to Perth with 132 g of methylamphetamine having a purity of 70%. The individual sentence on this count was 5 years' imprisonment.

In addition, the offender in Tran pleaded guilty to one count of possessing methylamphetamine with intent to sell or supply (37.013 g), one count of possessing cannabis with intent to sell or supply (60 large and 125 small to medium plants) and one count of possessing heroin with intent to sell or supply (41.4 g). The offender received a 2‑year term on each of those counts.
When the offender in Tran was arrested she had in her possession several items commonly associated with drug dealing including scales, dilutants and plastic wrap. She also had $7,100 cash.
The sentencing judge imposed a total effective sentence of 9 years' imprisonment. A parole eligibility order was made. This court described the total effective sentence as a 'heavy penalty', but dismissed the offender's appeal against sentence.
In the present case, the total effective sentence of 13 years' imprisonment was, no doubt, high, but I am satisfied that it was well‑deserved and within the range of a sound exercise by the sentencing judge of his sentencing discretion.
The crucial facts and circumstances which required and justified the imposition of this condign punishment were as follows:
(a)The quantities of cocaine (3.09 kg) and methylamphetamine (5.76 kg) were extremely large.
(b)The appellant was not a mere courier. Although he was not the principal of the drug distribution network, he must have been a senior and a trusted confederate of the principal. This is apparent from his possession of the drugs in question, the $854,550 cash and the keys to the factory unit and the caravan.
(c)The appellant's possession of the $854,550 cash, in addition to the drugs in question and the drug dealing paraphernalia, establishes that the appellant occupied an important position in a major commercial drug dealing operation.
(d)The appellant engaged in the offending for commercial purposes.
(e)It is true that the appellant pleaded guilty at an early stage and it was necessary that he be given credit for the plea in the sentencing process, but the plea did not occur at the earliest opportunity and was made in the context of a powerful prosecution case.
(f)The appellant's personal circumstances, to the extent that they were favourable, were a very limited factor.
The total effective sentence imposed on the appellant bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances including those referable to him personally. It is not plainly unreasonable or unjust. The total effective sentence was required to achieve a just outcome in the sentencing process. It was not disproportionate to any sentencing pattern revealed by comparable cases.
The appellant does not have a reasonable prospect of establishing inferred error by the sentencing judge as alleged in the ground of appeal. Leave to appeal should therefore be refused and the appeal dismissed.