Phillips v The State of Western Australia - [2011] WASCA 69

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PHILLIPS -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 69

CORAM: McLURE P
BUSS JA

HEARD: 25 FEBRUARY 2011

DELIVERED : 23 MARCH 2011

FILE NO/S: CACR 185 of 2010

BETWEEN: ADAM CRAIG FRANK PHILLIPS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :BOWDEN DCJ
File No  :IND 320 of 2010

Catchwords:

Criminal law - Appeal against sentence by offender - Multiple counts of dealing in prohibited drugs - Total effective sentence of 4 years' immediate imprisonment - Whether totality principle infringed - Turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA)

Result:

Application for an extension of time to apply for leave to appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

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

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

Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49
Butler v The State of Western Australia [2010] WASCA 104
Damiani v The State of Western Australia [2006] WASCA 47
R v Martin [2007] VSCA 291; (2007) 20 VR 14
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
R v Wright (1997) 93 A Crim R 48
Smith v The State of Western Australia [2010] WASCA 150
Wheeler v The Queen [No 2] [2010] WASCA 105
Wimbridge v The State of Western Australia [2009] WASCA 196

McLURE P: I agree with Buss JA.
BUSS JA: On 3 September 2010, the appellant entered fast‑track pleas of guilty in the District Court to an indictment alleging 21 offences.
The offences comprised 16 counts of offering to sell or supply methylamphetamine to another (counts 1, 2 and 5 ‑ 18); three counts of attempting to obtain methylamphetamine with intent to sell or supply it to another (counts 3, 4, 19 and 20); and one count of possession of methylamphetamine with intent to sell or supply it to another (count 21).
The commission of the offences constituted a breach of a 12‑month intensive supervision order imposed in the Magistrates Court on 14 October 2009 for one count of possession of a prohibited drug, one count of possession of stolen or unlawfully obtained property and one count of receiving. The offending also breached a 6‑month community based order imposed in the Magistrates Court on 5 August 2009 for an offence of unlawful damage.
The sentencing judge, Bowden DCJ, re‑sentenced the appellant for the offences the subject of the intensive supervision order and the community based order: s 133 of the Sentencing Act 1995 (WA).
The last date for appealing was 24 September 2010. The appellant did not file his appeal notice until 29 October 2010. He has applied for an extension of time to apply for leave to appeal. The principles governing an application for an extension of time are set out in Wimbridge v The State of Western Australia [2009] WASCA 196 [42] ‑ [49]. It is unnecessary to repeat them. In my opinion, whether an extension should be granted or not depends, in the present case, upon the merits of the proposed ground of appeal.

The facts and circumstances of the offending

During the period of the appellant's offending, his telephone was under surveillance by law enforcement authorities. The facts and circumstances of the indictable offences are these.
Count 1 ‑ on 20 August 2009, during a telephone conversation with a female, the appellant arranged to meet with her to sell her a quantity of methylamphetamine.
Count 2 ‑ on 21 August 2009, the appellant arranged to meet with a male in the Midvale area to sell him a quantity of methylamphetamine.

Count 3 ‑ on 21 August 2009, the appellant and a man identified as Uncle Mick discussed the sale and purchase of 3.5 g of methylamphetamine for $1,600. The appellant made an arrangement with Uncle Mick to meet with the suppliers of the drug for the purpose of purchasing it.
Count 4 ‑ on 22 August 2009, the appellant discussed purchasing from a female 1.75 g of methylamphetamine. An arrangement was made to meet the following day.
Count 5 ‑ on 22 August 2009, the appellant had a telephone conversation with a female. He arranged to meet the female in a park to sell her 0.5 g of methylamphetamine for $200.
Count 6 ‑ on 22 August 2009, the appellant arranged to meet with a female to sell her $150 worth of methylamphetamine.
Count 7 ‑ on 22 August 2009, the appellant agreed to meet a male at his residence for the purpose of selling him 1.75 g of methylamphetamine for $1,000.
Count 8 ‑ on 22 August 2009, the appellant agreed to meet with a male at a service station to sell him 1 g of methylamphetamine for $500.
Count 9 ‑ on 22 August 2009, the appellant agreed with a female to sell her 0.3 g of methylamphetamine for $150.
Count 10 ‑ on 25 August 2009, the appellant spoke with a female and a male. After some discussion, the appellant and the male agreed that the appellant would supply the male with 0.5 g of methylamphetamine in return for 6 MS Contin tablets.
Count 11 ‑ on 26 August 2009, the appellant and a male discussed the appellant supplying the male with either 1 g or 1.75 g of methylamphetamine at a price of $500 or $700, depending on the weight.
Count 12 ‑ on 31 August 2009, the appellant had a telephone discussion with an unidentified female. The appellant asked the female if she wanted $15,000 worth of methylamphetamine. He said that he could obtain a pound, being 16 ounces. There was further discussion concerning the current prices for ounces of methylamphetamine. At one point, the appellant advised the female that the methylamphetamine available to him was so good that it could be chopped into a one for one ratio. The conversation ended with the female agreeing to call the appellant back regarding his offer.
Count 13 ‑ on 1 September 2009, the appellant agreed to supply a male with 0.6 g of methylamphetamine for $300.
Count 14 ‑ on 1 September 2009, the appellant offered to sell a female 0.6 g of methylamphetamine for $200.
Count 15 ‑ on 1 September 2009, the appellant offered to sell to two men 0.5 g of methylamphetamine for $250.
Count 16 ‑ on 2 September 2009, the appellant offered to sell a male 0.5 g of methylamphetamine for $250.
Count 17 ‑ on 2 September 2009, the appellant spoke to a male. The appellant and the male agreed to meet for the purpose of the appellant selling the male $250 worth of methylamphetamine.
Count 18 ‑ on 7 September 2009, the appellant offered to sell a male 1.7 g of methylamphetamine for $750.
Count 19 ‑ on 22 September 2009, the appellant spoke with a female and asked her if she had any drugs. The female replied that she had 7 g of methylamphetamine. The appellant asked the female to bring the drugs to him. He said that the drugs were worth about $2,000. He also said that he would be able to dispose of the drugs that day. He offered to pay some of the money immediately, and give her the balance later.
Count 20 ‑ on 28 September 2009, the appellant discussed obtaining from a male 3.5 g of methylamphetamine for $1,300.
Count 21 ‑ on 6 November 2009, detectives stopped a motor vehicle in which the appellant and others were travelling. A search of the vehicle located $2,600 in the console. A search warrant was executed at the appellant's house and, in the master bedroom occupied by the appellant, the police found 20.9 g of methylamphetamine at 6% purity. Other items located included two sets of scales and numerous plastic bags.
As to the offences the subject of the intensive supervision order, on 3 March 2008, police executed a search warrant and found a Dell laptop computer in the appellant's possession worth $2,500. The computer had been stolen in a burglary on 23 or 24 February 2008. During the search, police also located 0.5 g of methylamphetamine as well as a quantity of jewellery valued at approximately $21,000.
The offence the subject of the community based order occurred as a result of an altercation between the appellant and his sister on 4 March 2009. He damaged various household items belonging to her.

The sentences imposed on the appellant

Bowden DCJ sentenced the appellant to 15 months' immediate imprisonment on each of counts 1 ‑ 20 inclusive and 18 months' immediate imprisonment on count 21. He accumulated the sentences for counts 11, 20 and 21. The total sentence on the indictable offences was 4 years' imprisonment.
The sentencing judge sentenced the appellant to 3 months' immediate imprisonment on each of the three offences for which the appellant was originally placed on the intensive supervision order. His Honour sentenced the appellant to 1 month's immediate imprisonment for the offence the subject of the community based order. All of these sentences were ordered to be served concurrently with each other, and concurrently with the sentences imposed on the indictment.
The total effective sentence was therefore 4 years' immediate imprisonment. A parole eligibility order was made.

The appellant's personal circumstances

Bowden DCJ had before him a pre‑sentence report dated 24 March 2010, a report dated 8 March 2010 from a forensic psychologist, Ms Claire Lynn, and a report dated 27 June 2010 from a consultant psychiatrist, Dr Sam Febbo.
At the date of sentence, the appellant was aged 34 years. He and his wife have four children, all of whom are under the age of 9. The appellant had been married for six years and his wife was supportive of him.
The appellant has a long history of poly‑substance abuse, commencing in his early to mid teenage years. He has abused alcohol, cannabis, heroin and methylamphetamine. He has a history of mental illness. In or about 2002, he was diagnosed with schizophrenia.
The appellant has a serious criminal history including offences for possession of prohibited drugs, burglary, assault, assaulting a public officer, assault occasioning bodily harm, robbery, breach of violence restraining orders, deprivation of liberty, unlawful wounding and various traffic matters. He has over the years been fined, placed on various community orders and sentenced to terms of imprisonment, both suspended and immediate.
Dr Febbo said that the appellant was at a significant risk of re‑offending as a result of his criminal history, personality pathology and major psychiatric disorder.
The sentencing judge accepted that the appellant's severe mental condition had affected his ability to work and function within the community. His inability to work created financial stress. This stress led to the appellant selling drugs in an attempt to alleviate his financial difficulties and provide for his family.
Dr Febbo's report indicates that, before sentencing, the appellant was receiving psychiatric care at the Bentley Mental Health Service.

The ground of appeal

The sole ground of appeal alleges that the total effective sentence of 4 years' immediate imprisonment 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 1981 (WA).
In Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49, Miller AJA reviewed the sentencing authorities in relation to cases involving the possession of quantities of methylamphetamine with intent to sell or supply to another. His Honour said, relevantly:
In cases involving smaller quantities of methylamphetamine (between 3 grams and 65 grams), sentences (where appropriate converted in accordance with the post‑transitional provisions) have ranged from between 2 and 5 years. Most cases involved pleas of guilty. Examples from the last 10 years are: Vodanovic v The Queen, unreported; CCA SCt of WA; Library No 960056; 9 February 1996 (24.5 grams of 2 per cent purity ‑ 2 years); Bellissimo (1996) 84 A Crim R 465 (20.8 grams of 6 per cent purity ‑ 3 years 10 months); Leonard v The Queen, unreported; CCA SCt of WA; Library No 990152; 29 March 1999 (sale of 22.4 grams of 8.5 per cent purity amphetamines ‑ 3 years 4 months); Nelis v The Queen [2000] WASCA 194 (three counts of selling and/or possession, including 54.75 grams of unknown purity ‑ 4 years 8 months); Marchesano (2000) 116 A Crim R 237 (41.1 grams of 20 per cent purity and 1.36 grams of 20 per cent purity ‑ 2 years 4 months); Watt v The Queen [2000] WASCA 354 (6.74 grams of between 18 ‑ 22 per cent purity ‑ 2 years 8 months); R v Weston [2000] WASCA 389 (41.77 grams of unknown purity ‑ 1 year 8 months, suspended for 2 years); Mishal v The Queen [2001] WASCA 328 (20 grams of 2 per cent purity ‑ 2 years); R v Hafner [2002] WASCA 211 (attempted sale or supply of 21.2 grams of 36 per cent purity ‑ 4 years); Vogel v The Queen [2002] WASCA 261 (3.8 grams of 11 per cent purity and 2.86 grams of 37 per cent purity ‑ 2 years); Marker v The Queen (2002) 135 A Crim R 55 (two counts, one of 53.9 grams of 41 per cent purity and one of 0.1 gram of 59.3 per cent purity respectively ‑ 4 years 5 months); Hiron v The Queen [2003] WASCA 310 (over 120 Grams of varying purity in three counts leading to a total term of 4 years 8 months' imprisonment); Hollingsworth v The Queen [2004] WASCA 73 (9.2 grams of between 3 ‑ 5 per cent purity ‑ 2 years, but concurrent with other offences and cumulative on sale of 29 grams of methylamphetamine, making a total of 5 years); Schlenka v The Queen [2004] WASCA 142 (12.7 grams of 47 per cent purity ‑ 1 year 8 months' imprisonment); Samuel v The State of Western Australia [2004] WASCA 154 (6.25 grams of 25 per cent purity ‑ 2 years, suspended for 2 years); Le v The Queen (2004) 147 A Crim R 269 (two counts involving methylamphetamine of respectively 6.94 grams of 81 per cent purity and 27.9 grams of 83 per cent purity ‑ 2 years 1 month and 4 years 2 months cumulative); Wong v The State of Western Australia [2004] WASCA 286 (26 grams of 6 per cent purity ‑ 2 years 6 months, but cumulative with other sentences); Colangelo v The State of Western Australia [2004] WASCA 294 (53.32 grams of varying purity ‑ 4 years, but cumulative with other sentences); Olomi v The State of Western Australia [2004] WASCA 304 (64.48 grams with purity unknown ‑ 2 years 8 months, cumulative on other sentences, but concurrent with a parole term); Pepper v The State of Western Australia (2005) 30 WAR 447 (3.5 grams of 56 ‑ 62 per cent purity ‑ 2 years, cumulatively with other sentences); and Samuels v The State of Western Australia [No 2] [2006] WASCA 222 (23.5 grams of 34 per cent purity ‑ 5 years) [41].
See also Smith v The State of Western Australia [2010] WASCA 150.
A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error. The principle applies, relevantly for present purposes, where an offender is to be sentenced for multiple offences. The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all the relevant offences, viewed in their entirety, and after having regard to the circumstances of the case, including those circumstances referable to the offender personally.
The major sentencing considerations for offences of dealing in methylamphetamine are general and personal deterrence. The weight of the drug is not, generally, the chief factor to be taken into account in fixing a sentence, but it is of importance. Other matters of relevance include the nature and level of the offender's participation in drug dealing, and whether the offending was committed solely for commercial gain. The degree of purity is often regarded as significant because it is indicative of the offender's place in the drug dealing hierarchy. Matters personal to the offender will almost always be a very limited consideration, but they are not completely irrelevant.
It is well-established that where an offender's mental illness or psychological difficulties have been self-induced (for example, by the ingestion of alcohol or illicit drugs), his or her condition is not generally to be regarded as mitigating the offence. In these circumstances, the offender is generally to be regarded as morally responsible for his or her condition. See R v Wright (1997) 93 A Crim R 48; R v Martin [2007] VSCA 291; (2007) 20 VR 14; Damiani v The State of Western Australia [2006] WASCA 47 [41] ‑ [42]; Butler v The State of Western Australia [2010] WASCA 104 [8].
It is also well-established that where an offender's mental illness or psychological difficulties have not been self-induced (for example, by the ingestion of alcohol or illicit drugs), his or her condition is a relevant factor in the sentencing process.
The effect of mental illness or psychological difficulties (falling short of insanity) on the moral blameworthiness or culpability of an offender is variable. It depends upon the nature, effect and severity of the condition and its symptoms. See R v Verdins [2007] VSCA 102; (2007) 16 VR 269 [25]; Wheeler v The Queen [No 2] [2010] WASCA 105 [9]. An offender who seeks to rely on mental illness or psychological difficulties as a factor which reduces his or her moral blameworthiness or culpability must prove on the balance of probabilities that the condition impaired his or her mental functioning to such an extent as to reduce the blameworthiness or culpability of the offending behaviour. See Wheeler [No 2] [10].
The report from Ms Lynn indicates that the appellant's mental illness and psychological difficulties have, to a significant degree, been self‑induced by the ingestion of illicit drugs (in particular, methylamphetamine) for many years. In these circumstances, his condition does not mitigate his offending. He is to be regarded as morally responsible, to a significant degree, for his condition. In any event, the appellant did not prove, on the balance of probabilities, that his condition impaired his mental functioning to such an extent as to reduce the blameworthiness or culpability of his offending conduct.
Nevertheless, the sentencing judge remarked, favourably to the appellant, that there was a link between the appellant's schizophrenia and the commission of the offences in question in that his severe mental condition affected his ability to work and function within the community. His inability to work created financial stress and the relevant offences were committed to remove that stress. His Honour, again favourably to the appellant, took the appellant's condition into account in determining the sentencing disposition (ts 39 ‑ 40).
The impact of the sentence on the appellant's family is unfortunate, but it is not mitigatory. Also, there is no mitigation in the appellant's prior record. He has a long and extensive history of disobedience to the law.
The evidence before the sentencing judge demonstrated that the appellant was a willing and enthusiastic vendor of methylamphetamine. He was involved in the distribution of methylamphetamine into the community as a street level dealer. The number of illicit drug transactions negotiated by the appellant between 20 August 2009 and 22 September 2009 reveal an illegal enterprise of some significance. People knew that the appellant had drugs. They were prepared to approach him and he was willing to supply them.
The appellant referred to numerous decided cases, but none of them supports his contention that his total effective sentence infringes the first limb of the totality principle.
I am satisfied that the total effective sentence of 4 years' immediate imprisonment was not disproportionate to the overall criminality of the appellant's offending, viewed in its entirety, and after having regard to the appellant's personal circumstances (including his fast‑track pleas of guilty and some apparent remorse). The sentence was not plainly unreasonable or unjust. The proposed ground of appeal has no reasonable prospect of success. I would dismiss the application for an extension of time to apply for leave to appeal.