Pitassi v The State of Western Australia
[2014] WASCA 231
•12 DECEMBER 2014
PITASSI -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 231
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 231 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:140/2013 | 15 SEPTEMBER 2014 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 12/12/14 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | STEPHEN ANTHONY PITASSI THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Possession of a prohibited drug with intent to sell or supply Possession of an unlicensed firearm in circumstances of aggravation Very late pleas of guilty Total effective sentence of 4 years' immediate imprisonment Whether error in the application of the totality principle |
Legislation: | Firearms Act 1973 (WA), s 19(1)(c), s 19(1)(ac) Misuse of Drugs Act 1981 (WA), s 6(1)(a) |
Case References: | Dixon v The State of Western Australia [2006] WASCA 255 Giannopoulos v The Queen [2000] WASCA 396 Hollingsworth v The Queen [2004] WASCA 73 Huynh v The State of Western Australia [2012] WASCA 8 Karakuyu v The State of Western Australia [2012] WASCA 75 Le v The State of Western Australia [2014] WASCA 120 Macri v The State of Western Australia [2006] WASCA 63 Mishal v The Queen [2001] WASCA 328 Nelis v The Queen [2000] WASCA 194 Ness v The State of Western Australia [No 2] [2013] WASCA 56 Ricciardi v The State of Western Australia [2012] WASCA 106 Smith v The State of Western Australia [2012] WASCA 91 The State of Western Australia v Fleming [2010] WASCA 162 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PITASSI -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 231 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SLEIGHT DCJ
File No : IND 412 of 2012
Catchwords:
Criminal law - Appeal against sentence - Possession of a prohibited drug with intent to sell or supply - Possession of an unlicensed firearm in circumstances of aggravation - Very late pleas of guilty - Total effective sentence of 4 years' immediate imprisonment - Whether error in the application of the totality principle
Legislation:
Firearms Act 1973 (WA), s 19(1)(c), s 19(1)(ac)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr N Papas SC
Respondent : Mr J McGrath SC
Solicitors:
Appellant : Holborn Lenhoff Massey
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Dixon v The State of Western Australia [2006] WASCA 255
Giannopoulos v The Queen [2000] WASCA 396
Hollingsworth v The Queen [2004] WASCA 73
Huynh v The State of Western Australia [2012] WASCA 8
Karakuyu v The State of Western Australia [2012] WASCA 75
Le v The State of Western Australia [2014] WASCA 120
Macri v The State of Western Australia [2006] WASCA 63
Mishal v The Queen [2001] WASCA 328
Nelis v The Queen [2000] WASCA 194
Ness v The State of Western Australia [No 2] [2013] WASCA 56
Ricciardi v The State of Western Australia [2012] WASCA 106
Smith v The State of Western Australia [2012] WASCA 91
The State of Western Australia v Fleming [2010] WASCA 162
1 McLURE P: I agree with Buss JA.
2 BUSS JA: This is an appeal against sentence.
3 The appellant was convicted, on his very late pleas of guilty in the District Court, of three counts in an indictment.
4 Count 1 alleged that on 17 August 2011, at Madeley, the appellant had in his possession a prohibited drug, namely cocaine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act).
5 Count 2 alleged that, on the same date and at the same place, the appellant was in possession of a Beretta firearm while not being the holder of a licence or permit under the Firearms Act 1973 (WA) entitling him to do so, and that:
(a) the appellant had been refused a licence or permit entitling him to do so;
(b) the firearm was a handgun; and
(c) a number or identification mark on the firearm had been removed,
contrary to s 19(1)(c), read with s 19(1ac), of the Firearms Act.
6 Count 3 alleged that, on the same date and at the same place, the appellant was in possession of ammunition, namely 120 rounds of various ammunition, while not being the holder of a licence or permit under the FirearmsAct entitling him to do so, contrary to s 19(1)(c), read with s 19(1ad), of the Firearms Act.
7 On 6 June 2013, Sleight DCJ sentenced the appellant to 3 years' immediate imprisonment on count 1, 12 months' immediate imprisonment on count 2 and 6 months' immediate imprisonment on count 3. The sentence for count 2 was ordered to be served cumulatively on the sentence for count 1. The sentence for count 3 was ordered to be served concurrently with the other sentences. The total effective sentence was therefore 4 years' immediate imprisonment. A parole eligibility order was made.
The ground of appeal
8 The sole ground of appeal alleges that the sentencing judge erred in the application of the totality principle 'in making the sentence of 12 months on [count] 2 totally cumulative'.
9 On 9 November 2013, Mazza JA granted leave to appeal on this ground.
The facts and circumstances of the offending
10 On 17 August 2011, police executed a search warrant at the appellant's home in Madeley. The police found a wall cavity in the kitchen behind a small plastic ventilation grate. There was powder weighing 104 g in the cavity. On analysis, it was ascertained that the powder contained cocaine, with a purity of about 2%, and methylamphetamine, with a purity of about 4%.
11 The police also located:
(a) 38.5 g of MSM, a cutting agent, in the bathroom;
(b) $60,000 cash in a filing cabinet;
(c) a Beretta pistol, loaded with six rounds of .22 calibre ammunition, in a rubbish bin in the dining room area;
(d) a notebook, containing a number of pages of entries with names and numbers, on the kitchen bench;
(e) two pages of notes on the refrigerator;
(f) surveillance cameras and a monitoring system, with seven cameras displaying the outside of the premises;
(g) a money counting machine in the study;
(h) a number of weapons, including a Taser device, pepper spray, a cattle prod and a baton;
(i) 11 mobile telephones;
(j) a bundle of Glad sandwich bags;
(k) 120 rounds of ammunition; and
(l) a plate on which there was a card and a $50 note wrapped as a straw, both of which were covered with powder.
12 As a result of the search on 17 August 2011, the appellant was charged with the following offences:
(a) counts 1, 2 and 3 on the indictment; and
(b) possessing stolen or unlawfully obtained property, possessing a prohibited weapon (two charges), possessing a controlled weapon and possessing a prohibited drug (two charges).
13 Later, the appellant was charged in relation to a separate offence of possessing stolen or unlawfully obtained property (being $120,000 cash). This offence occurred on 31 May 2012. The appellant was stopped by police while he was driving alone in a motor vehicle. The police searched the vehicle and found a black sports bag containing $120,000 cash in bundles of $10,000.
14 On 9 July 2013, the appellant was sentenced in the Magistrates Court for the other offences; that is, the charges not included in the indictment. Magistrate Tavener imposed a total effective sentence of 9 months' immediate imprisonment, to be served cumulatively upon the sentences imposed by the sentencing judge on 6 June 2013.
15 However, this appeal relates solely to the total effective sentence of 4 years' immediate imprisonment imposed by the sentencing judge.
The course of proceedings in the District Court
16 The appellant did not indicate his intention to plead guilty to counts 1, 2 and 3 on the indictment until the day before the scheduled commencement of his trial.
17 He pleaded guilty on 3 December 2012. The matter was adjourned to 29 January 2013 for sentencing. However, sentencing did not occur on that date because it became apparent that a trial of issues was required to determine the basis on which the appellant should be sentenced for the drug offence (that is, count 1). The appellant asserted that he possessed the illicit drugs solely for the purposes of supply. The State contended that he possessed them as part of a commercial drug dealing operation.
18 On 23 May 2013, the trial of issues occurred before the sentencing judge. The appellant did not give evidence. There was evidence before his Honour that the illicit drugs, the subject of count 1, were most likely a high quality cutting agent which the appellant would use to dilute any cocaine acquired by him for distribution in the future.
19 On 6 June 2013, the sentencing judge delivered his decision on the trial of issues. He was satisfied that the appellant possessed the illicit drugs as part of a commercial drug dealing operation. His Honour based that finding on the quantity of cash found by the police at the appellant's home, the quantity of the admixture containing cocaine and methylamphetamine and the drug dealing indicia at his home. All of these matters, in combination, suggested that the appellant had been conducting an elaborate drug dealing enterprise.
The appellant's personal circumstances and antecedents and the expert reports before the sentencing judge
20 The appellant was born on 21 July 1986. He was aged 25 at the time of the offending and was 26 when sentenced. He had no relevant prior convictions. The appellant used illicit drugs regularly.
21 The material before the sentencing judge included reports dated 26 November 2012 and 6 December 2012 from Dr Philip Watts, a clinical and forensic psychologist, and a pre-sentence report.
22 Dr Watts administered some standardised intelligence testing in relation to the appellant. Dr Watts also conducted a clinical interview with the appellant and arranged for him to complete a standardised personality inventory. The intelligence testing revealed that the appellant's 'full-scale IQ placed him in the bottom 5% of the population'. Dr Watts explained that the appellant was therefore in the 'borderline range of intelligence'. This range is on the border between 'intellectual disability and low average capacity' and is at a level 'where someone is barely able to function independently'. Dr Watts summarised his views in relation to the appellant as follows:
[The appellant] is a young man of limited intellectual functioning, and a dependent personality makeup, who has become involved with negative peer associations resulting in him engaging in some illegal actions. The negative identity was seen as 'cool' and he gave no consideration to the seriousness of his behaviour.
The sentencing judge's sentencing remarks
23 The sentencing judge recounted in his sentencing remarks the facts and circumstances of the offending.
24 His Honour also referred to the appellant's personal circumstances and antecedents, the reports of Dr Watts and the pre-sentence report.
25 The sentencing judge made these findings:
(a) the powder, the subject of count 1, 'had a very limited use for direct consumption but was in the nature of a high quality cutting agent' (ts 119 - 120).
(b) The appellant purchased the Beretta handgun from a friend earlier in the day on which the police searched the appellant's home. When the police arrived the appellant, acting in panic, threw the handgun into the rubbish bin (ts 120).
(c) The appellant had been refused a licence for other firearms, but the refusal did not relate to a handgun (ts 120).
(d) The identification marks on the handgun had been removed (ts 120).
26 His Honour allowed the appellant a discount of 10%, on the individual sentences he would otherwise have imposed, for the pleas of guilty, pursuant to s 9AA of the Sentencing Act 1995 (WA) (ts 121).
27 The sentencing judge took into account, in deciding upon the sentencing outcome, the appellant's age and his low intelligence. His Honour was of the view that the appellant was 'likely to be easily misled' (ts 121). His Honour also said there may be 'a degree of vulnerability that [the appellant] would experience whilst held in prison' (ts 121).
28 His Honour found that the appellant's 'low level of intellectual functioning' did not reduce significantly his culpability or make him an inappropriate vehicle for the imposition of 'a sentence of general deterrence' (ts 121). His Honour elaborated:
The presence of a high quality cutting agent, $60,000 in cash, an elaborate surveillance system, the money counter, tick lists and weapons, all suggest a level of sophistication that demonstrates that you knew exactly what you were doing, and notwithstanding your low intelligence you have a reasonable level of functioning (ts 121).
29 The sentencing judge took into account the fact that the appellant had no relevant prior criminal record and had a good work ethic. His Honour noted, however, that any remorse the appellant had expressed 'was not demonstrated by [his failure to concede that he was] engaged in commercial [drug dealing] activities' (ts 121). His Honour concluded therefore that the level of the appellant's remorse was 'very low' (ts 121).
30 His Honour said the appellant was 'at a higher position in the drug distribution network than a low level street dealer' and he was 'involved in a fairly significant enterprise' (ts 123).
31 The sentencing judge did not make a finding that the loaded handgun was used or intended for use as part of the drug dealing enterprise in which the appellant was involved. However, his Honour described count 2 as 'a distinct and separate serious offence' and said 'the presence of a loaded handgun unmarked without a licence is a disturbing offence' (ts 123).
The merits of the ground of appeal
32 The appellant alleges in essence that the total effective sentence of 4 years' immediate imprisonment, which the sentencing judge arrived at by ordering the accumulation of the individual sentences for counts 1 and 2, infringed the first limb of the totality principle.
33 The first limb of the totality principle requires that 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 (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases. These propositions are well-established by the case law.
34 The appellant relies solely on implied or inferred error. He does not allege any express error or challenge any of his Honour's findings of fact.
35 The maximum penalty for the offence of possessing a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act, is 25 years' imprisonment or a fine of $100,000 or both.
36 The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. All of these propositions are well-established by the case law.
37 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. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. These propositions are also well-established by the case law.
38 As to count 1 in the present case, as the sentencing judge noted, there do not appear to be 'any comparable cases of an admixture of powder, which was being used as a cutting agent, as the basis for the offence of possession of a prohibited drug with an intent to sell or supply' (ts 122). There are, however, numerous cases, which I have considered, where this court or its predecessor has reviewed sentences imposed for the possession of prohibited drugs, having a low purity, with intent to sell or supply to another. See, for example, Nelis v The Queen [2000] WASCA 194; Giannopoulos v The Queen [2000] WASCA 396; Mishal v The Queen [2001] WASCA 328; Hollingsworth v The Queen [2004] WASCA 73; Macri v The State of Western Australia [2006] WASCA 63; Dixon v The State of Western Australia [2006] WASCA 255; The State of Western Australia v Fleming [2010] WASCA 162; Ness v The State of Western Australia [No 2] [2013] WASCA 56; and the cases cited in those decisions.
39 Although the low purity of the powder the subject of count 1 was a relevant sentencing factor, there were also other relevant factors; in particular, the quantity of the powder and the indicia of drug dealing found at the appellant's home. The quantity of the powder and the indicia of drug dealing compelled his Honour's findings that the appellant was engaged in commercial drug dealing activities, those activities were 'fairly significant', and he was 'at a higher position in the drug distribution network than a low level street dealer' (ts 123). There can be no doubt that, whether he intended to sell the powder the subject of count 1 or intended to use the powder to increase the bulk of cocaine with a higher degree of purity, the appellant intended that the powder would be distributed within the community for profit.
40 The maximum penalty where a person is in possession of a firearm, and the person is not the holder of a licence or permit under the Firearms Act entitling him or her to do so, and the firearm has been altered from the design or characteristics of its original manufacture, is 7 years' imprisonment. See s 19(1ac) of the Firearms Act.
41 As to count 2 in the present case, I have considered the sentencing outcomes in Huynh v The State of Western Australia [2012] WASCA 8; Karakuyu v The State of Western Australia [2012] WASCA 75; Smith v The State of Western Australia [2012] WASCA 91; Ricciardi v The State of Western Australia [2012] WASCA 106; Le v The State of Western Australia [2014] WASCA 120; and the other cases involving unlicensed firearms which are referred to in those decisions.
42 The fact that the handgun the subject of count 2 was loaded was an aggravating feature.
43 Counts 1 and 2 involved serious offending. The principal sentencing factors were appropriate punishment and personal and general deterrence.
44 In my opinion, the total effective sentence of 4 years' immediate imprisonment bears a proper relationship to the overall criminality involved in counts 1 and 2, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including matters personal to the appellant and matters of mitigation (for example, his age, his low intelligence, the 'degree of vulnerability [he] would experience [while] in prison', his very late pleas of guilty and the absence of a relevant prior criminal record).
45 The total effective sentence of 4 years' immediate imprisonment was within the range reasonably open to the sentencing judge on a proper exercise of his discretion.
46 Error should not be inferred from the sentencing outcome. The first limb of the totality principle was not infringed.
47 The ground of appeal fails.
Conclusion
48 I would dismiss the appeal.
49 MAZZA JA: I agree with Buss JA.
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