Pittard v The State of Western Australia
[2013] WASCA 126
•21 MAY 2013
PITTARD -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 126
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 126 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:186/2012 | 19 MARCH 2013 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 21/05/13 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | CACR 186 of 2012 Leave to appeal refused Appeal dismissed CACR 187 of 2012 Application to adduce additional evidence dismissed Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JOHNATHAN GEORGE PITTARD THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for leave to appeal against conviction Application for leave to appeal against sentence Selling or supplying a prohibited drug Possession of cannabis with intent to sell or supply Directions concerning lies Error in finding of fact Totality principle Parity principle Bias Drug trafficker declaration |
Legislation: | District Court of Western Australia Act 1969 (WA), s 79(1) Misuse of Drugs Act 1981 (WA), s 6(1), s 7(1)(a) |
Case References: | Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 Chu v The State of Western Australia [2012] WASCA 135 Donohoe v The Director of Public Prosecutions (WA) [2011] WASCA 239 Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 Jardim v The State of Western Australia [2011] WASCA 83 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Jordan v The State of Western Australia [2012] WASCA 163 Karakuyu v The State of Western Australia [2012] WASCA 75 Lam v The State of Western Australia [2010] WASCA 61 Lynch v The State of Western Australia [2011] WASCA 243 Magdi v The State of Western Australia [2010] WASCA 234 MGM v The State of Western Australia [2012] WASCA 24 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 Nguyen v The State of Western Australia [2009] WASCA 81 Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 Ricciardi v The State of Western Australia [2012] WASCA 106 Roffey v The State of Western Australia [2007] WASCA 246 The Queen v Renzella [1997] 2 VR 88 Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119 Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 Vagh v The State of Western Australia [2007] WASCA 17 Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PITTARD -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 126 CORAM : McLURE P
- BUSS JA
MAZZA JA
- CACR 187 of 2012
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SWEENEY DCJ
File No : IND 616 of 2012
Catchwords:
Criminal law - Application for leave to appeal against conviction - Application for leave to appeal against sentence - Selling or supplying a prohibited drug - Possession of cannabis with intent to sell or supply - Directions concerning lies -
(Page 2)
Error in finding of fact - Totality principle - Parity principle - Bias - Drug trafficker declaration
Legislation:
District Court of Western Australia Act 1969 (WA), s 79(1)
Misuse of Drugs Act 1981 (WA), s 6(1), s 7(1)(a)
Result:
CACR 186 of 2012
Leave to appeal refused
Appeal dismissed
CACR 187 of 2012
Application to adduce additional evidence dismissed
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters (CACR 186 of 2012) and in person (CACR 187 of 2012)
Respondent : No appearance
Solicitors:
Appellant : N R Barber Legal (CACR 186 of 2012)
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
Chu v The State of Western Australia [2012] WASCA 135
Donohoe v The Director of Public Prosecutions (WA) [2011] WASCA 239
(Page 3)
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Jardim v The State of Western Australia [2011] WASCA 83
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Jordan v The State of Western Australia [2012] WASCA 163
Karakuyu v The State of Western Australia [2012] WASCA 75
Lam v The State of Western Australia [2010] WASCA 61
Lynch v The State of Western Australia [2011] WASCA 243
Magdi v The State of Western Australia [2010] WASCA 234
MGM v The State of Western Australia [2012] WASCA 24
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1
Nguyen v The State of Western Australia [2009] WASCA 81
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Ricciardi v The State of Western Australia [2012] WASCA 106
Roffey v The State of Western Australia [2007] WASCA 246
The Queen v Renzella [1997] 2 VR 88
Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
Vagh v The State of Western Australia [2007] WASCA 17
Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234
(Page 4)
1 McLURE P: I agree with Mazza JA.
2 BUSS JA: I agree with Mazza JA.
3 MAZZA JA: Before the court are the appellant's applications for leave to appeal against conviction (CACR 186 of 2012) and sentence (CACR 187 of 2012).
4 The appellant was charged by indictment with two counts of selling or supplying to another a prohibited drug being methylamphetamine (count 1) and MDMA (ecstasy) (count 2), contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA). He was also charged with possession of cannabis with intent to sell or supply it to another, contrary to s 7(1)(a) of the Misuse of Drugs Act (count 3).
5 The appellant pleaded not guilty to these charges and stood trial before Sweeney DCJ and a jury. On 21 June 2012, he was convicted as charged. On 6 August 2012, the appellant was ordered to serve a total effective sentence of 7 years' imprisonment with eligibility for parole, backdated to commence on the day of his conviction. The appellant was declared a drug trafficker. The individual sentences and the orders for concurrency and cumulacy made by her Honour are as follows:
Count 1 6 years' imprisonment
Count 2 1 year's imprisonment, cumulative
Count 3 6 months' imprisonment, concurrent
6 There is one proposed ground of appeal against conviction. It alleges a miscarriage of justice in respect of her Honour's direction concerning three lies told by the appellant. The appellant was represented by counsel in the application for leave to appeal against conviction.
7 There are five proposed grounds of appeal against sentence. In this application the appellant represented himself. The appellant applied to adduce additional evidence in this appeal, pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA). At the hearing, the appellant withdrew that application (sentence appeal ts 3). It will be dismissed.
8 For the reasons that follow, none of the proposed grounds in either appeal have a reasonable prospect of succeeding. Accordingly, each appeal must be taken to be dismissed: s 27(2) and (3) of the Criminal Appeals Act.
(Page 5)
The State's case at trial
9 On the evening of 19 July 2009, police officers in Geraldton had Trevor Forman under surveillance. He was seen to drive his utility from his home in that city to the appellant's home at Seaflower Crescent, Craigie, a suburb of Perth, arriving there at approximately 2.09 am on 20 July 2009.
10 Forman's car was observed to leave the appellant's home at approximately 2.42 am and go to a petrol station. The car returned by 3.07 am. At 3.20 am, police observed that Forman's car was parked so that the rear of it was close to the front of the appellant's premises.
11 Forman drove away from the appellant's home at about 5.39 am on 20 July 2009. At about 9.45 am, police stopped the vehicle on the Brand Highway near Dongara. Hidden inside the tailgate the police discovered a cryovac sealed bag containing two packages of drugs. One package contained 54.65 g of methylamphetamine with a purity between 20 and 21% (count 1), and the other package contained 199 or 200 ecstasy tablets weighing 58.75 g with an approximate purity of 23% (count 2).
12 At about the same time as Forman's car was being searched, police executed a search warrant at the appellant's home. Next to the appellant's bed two bags were found which contained a total of $108,030 in cash. In the appellant's shed, the police located:
(a) two vacuum-sealing machines;
(b) several rolls of Foodsaver brand vacuum bags identical to the ones used to package the drugs found in Forman's car;
(c) clipseal bags;
(d) three tubes of obviously used heat-shrink plastic in different colours, each of which had been cut open;
(e) several sets of electronic scales; and
(f) a kilogram of MSM, a substance commonly used to cut (dilute) methylamphetamine.
13 The police also found 113.04 g of cannabis separated into three identical bags, together with a grinder which had obviously been used to chop up cannabis (count 3).
(Page 6)
14 The relevant parts of the search were video-recorded. The appellant, who was present at the premises, was spoken to under caution.
15 A forensic analysis of the items seized from the appellant’s house found:
(a) traces of methylamphetamine on all three pieces of heat-shrink plastic;
(b) traces of ecstasy on one of the pieces of heat-shrink plastic;
(c) traces of methylamphetamine on the surfaces of one of the vacuum-sealing machines;
(d) traces of ecstasy on the other vacuum-sealing machine;
(e) traces of methylamphetamine, cocaine and tetrahydrocannabinol (the active ingredient in cannabis) on one of the sets of electronic scales; and
(f) traces of methylamphetamine, ecstasy and cocaine on the other set of electronic scales.
16 The State's case was that the appellant was dealing in methylamphetamine, ecstasy and cannabis, and that the items found in the shed were the tools of his drug dealing while the money in the bedroom was the spoils. The State alleged that Forman travelled from Geraldton to Perth to acquire methylamphetamine and ecstasy from the appellant. The State further alleged that, in the early hours of 20 July 2012, the appellant supplied to Forman the quantities of methylamphetamine and ecstasy that were discovered by the police in Forman's car. With respect to the cannabis, the State's case was that the appellant possessed it with the intention of selling or supplying it to another.
17 At the trial, the appellant elected to testify and adduce other evidence in his defence. In essence, the defence case was that Forman was the drug dealer, not the appellant. The appellant testified that Forman sold him the cannabis the subject of count 3 which he intended to use himself. The appellant further testified that Forman left the appellant's home on two occasions: on the first occasion, to get some fuel, and on the second occasion, to purchase drugs from someone else. The appellant claimed that, after the second occasion, Forman offered him samples of the methylamphetamine and ecstasy that he had just acquired, with a view to selling some of them to him. The packages in which these drugs came
(Page 7)
- had been heat-shrunk and they were cut open by Forman to enable the appellant to sample their contents. The appellant said he did not regard the drugs as being of sufficient quality and did not buy any of them. He testified that Forman used the vacuum-sealing machine that the appellant's wife used to store food, to reseal the packages. He said that Forman had left behind the coloured plastic found by the police. The appellant also said that Forman used two sets of electronic scales owned by him. The appellant denied any knowledge of the MSM. He claimed that it must have been left there by a couple with whom the appellant and his partner used to share the premises.
18 With respect to the $108,030, the appellant claimed that $100,000 of that belonged to a friend, Mr Peter Tod, and that the balance belonged to him. Mr Tod testified that he left the money in the care of the appellant because his marriage was deteriorating and, in effect, that he wanted to keep the money away from his wife and his stepsons.
The lies
19 The State contended that the appellant was an untruthful witness. In support of this argument, the State referred to three alleged lies told by the appellant to the police at his home.
20 The first lie said to have been told by the appellant to the police was that one of the sets of scales had not been used to weigh drugs. The second alleged lie the appellant told the police was that he had not seen the blue, white and yellow-coloured tubing they found in the garage. The third lie was that he had not used the vacuum-sealing machines to seal drugs.
21 There was no dispute in this appeal that the three alleged lies were in fact lies.
Treatment of the lies at trial
22 The State never sought to rely upon the lies as evidence of guilt. The prosecutor did not refer to the lies in his opening address. In the cross-examination of the appellant it was not suggested that his lies were indicative of a consciousness of guilt. In the prosecutor's closing address, the State said that the lies only went to the appellant's credibility. The prosecutor put it this way:
Before I go any further about [the appellant's] lies, let me say this to you, that you must be very careful about what use you make of lies, if that's what you find them to be.
(Page 8)
- Sometimes, indeed, quite rarely, the State might rely upon a lie to help prove that someone is guilty. That only happens now and then, when you can conclude that the only reason that a person lied is that they knew the truth would reveal their guilt, and I want to be very clear about this. That is not what the State suggests here.
You can't use these lies and say, if you conclude that they are lies, 'Well, he lied so that shows that he's guilty'. These lies are only about whether you should believe any explanation that [the appellant] - or the explanation that [the appellant] has given and the State's case is that you should reject that explanation, not just because it's implausible but because it comes from a liar (closing address ts 6). (emphasis added)
23 The prosecutor returned to this subject later in his closing address and said, in respect of lies told by the appellant:
Again, these lies are only about whether you should believe any explanation given by him, and in relation to the cannabis he did offer an explanation, he said the cannabis was for his own personal use (closing address ts 8).
24 In the absence of the jury and after both counsel had delivered their closing addresses, there was a discussion about the three lies between counsel and her Honour. Once again, the State clearly spelt out its position that the lies only went to the appellant's credibility. It was never suggested that her Honour should give a direction in accordance with Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193. Defence counsel submitted that no direction at all should be given about the lies. Her Honour said that she would give a direction in accordance with Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234.
Her Honour's directions
25 After summarising the evidence with respect to the alleged lies, the learned trial judge directed the jury as follows:
The fact that a person has told a lie may be a factor in your assessment of the credibility of that person's account generally. It may impact on how you assess the truthfulness or otherwise of other things they have said to the police or in evidence during the trial. That's a matter for you to consider.
But don't follow a process of reasoning to the effect that just because a person is shown to have told a specific lie about something, that that is evidence of guilt in itself. The fact that a person told a lie is not evidence that the person is guilty of a crime. Its relevance to you is that if you find the accused told a specific lie to the police during the interview, that may
(Page 9)
- impact on your assessment of his credibility generally and the credibility of his overall account (ts 156).
The ground of appeal against conviction and the appellant's submissions in support of it
26 The proposed ground of appeal relied upon by the appellant is in these terms:
1. There was a miscarriage of justice when the learned trial Judge failed to adequately, or at all direct the jury that three lies that were told by the appellant and relied upon by the prosecution ('the lies') could not be used as evidence or implied admissions of guilt when, in all the circumstances, there was a danger that absent such a direction the jury may use them in that way;
Particulars:
1.1 The lies were each capable of revealing a consciousness of guilt concerning Counts 1 and 2;
1.2 Although the lies were relied upon by the State as going only to credit, each of the lies was capable, absent a suitable direction, of being used by the jury as either evidence or as implied admissions of guilt.
Disposition of the proposed ground of appeal against conviction
27 Counsel for the appellant asserted that there was 'a grave danger' that the jury would use the three lies as evidence of guilt and accordingly a clear direction not to do so was required. The appellant complained that her Honour's directions were not sufficiently clear. The appellant submitted that 'it was incumbent upon her Honour to tell the jury expressly that [the lies] went only to the appellant's credit and they were not to reason that he had lied because he was guilty'. The appellant cited Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [44] and The Queen v Renzella [1997] 2 VR 88, 93 - 94, to support this last point.
28 The appellant's submissions cannot be accepted for the following reasons.
29 I reject the assertion that, in the circumstances of the present case, there was 'a grave danger' or indeed any reasonable risk that the jury would use the lies as evidence of guilt. There was nothing in the way that the trial was conducted by the State that could reasonably have given rise to this impression. The prosecutor unequivocally stated the State's position on the subject in his closing address. He could hardly have been
(Page 10)
- clearer. He told the jury that the State did not rely upon the lies as evidence of guilt and that the lies were relevant only to the jury's assessment of the appellant's credibility.
30 However, if there was any danger or risk that the jury might misuse the lies told by the appellant, that danger or risk was effectively alleviated by her Honour's directions which, contrary to the submissions made by the appellant, were very clear. Her Honour instructed the jury that the telling of a lie is not evidence that a person is guilty of a crime. Her Honour further instructed the jury that the relevance of any lie told by the appellant was in the assessment of the appellant's credibility.
31 In Zoneff, Gleeson CJ, Gaudron, Gummow and Callinan JJ said that where there is a risk of misunderstanding about the significance of lies, even though the prosecutor has not suggested that the lies were evidence of guilt, it would be appropriate to warn the jury:
not [to] follow a process of reasoning to the effect that just because a person is shown to have told a lie about something, that is evidence of guilt [23].
32 Her Honour's direction was in very similar language.
33 Nothing that was said in either Osland or Renzella requires a judge, as a matter of law, to instruct a jury that any lies told by an accused went only to the accused's credit. In cases where a direction is appropriate, what is required is that the jury is told that any lie is not evidence of guilt. While a judge may, in giving a Zoneff-type direction, instruct a jury that any lie told by the accused is only relevant to credibility, the use of the word 'only' is not a compulsory requirement of that direction.
34 Her Honour's directions were clear and in accordance with authority. I am unable to see how any reasonable jury could have thought that the lies told by the appellant in this case could be used as evidence of guilt. The ground of appeal has no reasonable prospect of success. It follows that the appeal against conviction must be dismissed.
Appeal against sentence
35 As I have said, the appellant represented himself in respect of his application for leave to appeal against sentence.
36 His proposed grounds of appeal are:
1. The Learned Sentencing Judge the Hon Sweeney DCJ erred in fact when sentencing the appellant.
(Page 11)
- 2. The Learned Sentencing Judge the Hon Sweeney DCJ erred in law when sentencing the appellant.
3. The Learned Sentencing Judge the Hon Sweeney DCJ misdirected herself in regards to accepted and well established principles of:
(a) Parity
(b) Consistency
(c) Equal justice
in sentencing the Appellant.
(4) The Learned Sentencing Judge the Hon Sweeney DCJ failed to consider principles of equality before the law in sentencing the Appellant.
(5) The Learned Sentencing Judge the Hon Sweeney DCJ demonstrated actual and perceived bias when sentencing the Appellant.
[Particulars provided]
37 When the proposed grounds are read with the appellant's written and oral submissions, it is evident that the appellant alleges that:
1. The learned sentencing judge erred in her finding that the appellant:
(a) was a drug dealer;
(b) was higher in the chain of distribution of illicit drugs than Forman; and
(c) had an ongoing relationship with Forman as his drug supplier.
2. The learned sentencing judge did not give sufficient weight to the appellant's antecedents.
3. The total effective sentence infringed the first limb of the totality principle.
4. The total effective sentence infringed the parity principle, having regard to the sentence imposed upon Forman.
5. The learned sentencing judge demonstrated actual or perceived bias against him.
(Page 12)
The learned sentencing judge's findings on sentence
38 There is no need for me to repeat what I have already said about the facts of the appellant's offending. In the course of her sentencing remarks, her Honour made these findings:
1. The appellant was Forman's drug supplier and Forman was a dealer who would, in turn, supply those drugs to his customers in the Geraldton area (sentencing ts 4).
2. The offences were committed in the context of an established relationship between the appellant and Forman and were not a 'one-off transaction' between the two men (sentencing ts 5).
3. The appellant, although a drug user, was also a dealer in drugs on a commercial basis and he possessed a range of different drugs to supply potential customers (sentencing ts 5).
4. The police did not find any documentation that showed that the appellant was commercially dealing in drugs. However, the appellant conducted his business on a cash basis and, accordingly, the absence of documentation such as a tick list did not detract from the proposition that he was a commercial dealer (sentencing ts 5).
5. Most, if not all, of the approximately $108,000 in cash found at the appellant's premises was as a result of his illicit drug transactions. Her Honour expressly rejected the argument that Mr Tod had left $100,000 with the appellant in order to hide its existence from his estranged wife (sentencing ts 6).
The appellant's personal circumstances
39 The appellant was, at the time he was sentenced, 43 years of age. He had a short criminal record that her Honour described as generally a 'modest nuisance sort of record apart from an old assault in 1995' (sentencing ts 6 and 7). Her Honour noted that the appellant was in a stable relationship with his partner and that he had a history of employment. Both of these factors, her Honour found, boded well for his future rehabilitation (sentencing ts 9). She observed that the appellant had a long history of illicit drug use. Her Honour accepted the conclusions in the pre-sentence report that without intensive treatment intervention, the appellant posed a moderate risk of re-offending (sentencing ts 8).
(Page 13)
40 Her Honour said that because the appellant had taken the matter to trial he could not claim the benefit of a remorseful plea of guilty, but she accepted that he did make sensible concessions in the way the trial had been conducted and she considered that to be a matter in his favour (sentencing ts 9).
Forman's offences and his sentencing
41 Forman was charged with 11 counts on indictment and six counts on a notice pursuant to s 32 of the Sentencing Act. He pleaded guilty to all these charges before her Honour Schoombee DCJ in the District Court at Geraldton on 6 September 2010. The details of the sentences that were imposed that day are as follows:
Counts in the indictment
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42 The drugs the subject of counts 10 and 11 in Forman's indictment are the drugs that were supplied to him by the appellant and were the subject of counts 1 and 2 in the appellant's indictment.
43 Schoombee DCJ accumulated the sentences she imposed on counts 4 and 10 in the indictment, and count 6 in the s 32 notice. All the other sentences were ordered to be served concurrently. Thus the total effective
(Page 15)
- sentence imposed upon Forman was 6 years' imprisonment. He was made eligible for parole.
44 Forman was 32 years of age when he was sentenced. He had a short record of convictions, including some minor drug offences. He had been a recreational user of illicit drugs but began dealing in substantial quantities in 2008 and 2009. In 2009, he began travelling to Perth to bring larger quantities of methylamphetamines to Geraldton. Her Honour described him as a street level dealer selling to people in small quantities, but also noted that he was clearly 'supporting' a larger drug dealing operation in Geraldton.
45 Her Honour said that she gave a substantial discount for Forman's pleas of guilty at the first opportunity. She described those pleas as a 'significant indication of remorse'. Her Honour acknowledged that Forman had taken substantial steps to rehabilitate himself from his illicit drug use.
Disposition of the proposed grounds of appeal against sentence
1. Did the learned sentencing judge err in respect of any matter of fact?
46 The appellant takes issue with the findings of fact outlined at [38] in these reasons. His arguments on this issue were no more than a series of assertions.
47 There was ample evidence before the learned sentencing judge justifying each and every one of her factual findings which were, in my respectful opinion, correct.
48 By its verdicts, the jury found, contrary to the appellant's evidence, that he was the supplier of the methylamphetamine and ecstasy to Forman. Clearly, the appellant had access to significant quantities of different types of illicit drugs. The presence in the shed of the vacuum-sealing machines, vacuum bags, clipseal bags, heat shrink plastic, sets of electronic scales and a large quantity of a cutting agent were the indicia of a drug dealing enterprise of some magnitude and were inconsistent with someone engaging in a 'one-off drug deal'.
49 Her Honour's finding that 'most if not all' of the approximately $108,000 in cash found in the appellant's house was the proceeds of his drug dealing was plainly open to her. She had the considerable advantage of seeing and hearing the witnesses who testified on this subject, including Mr Tod. It was open to her to conclude, as she did, that
(Page 16)
- Mr Tod's evidence was implausible. The appellant had no other apparent source of such a large sum of cash and the only reasonable inference that could be drawn from its presence in his bedroom, when coupled with all of the other circumstances, was that it was derived from illicit drug dealing.
50 It was evident, having regard to the events of 19 and 20 July 2009, that the appellant and Forman had an ongoing drug relationship, with the appellant acting as Forman's supplier.
51 The appellant's argument that her Honour made errors of fact has no reasonable prospect of succeeding.
2. Did her Honour fail to take into account matters personal to the appellant?
52 It is clear from her Honour's sentencing remarks that she took into account those aspects of the appellant's antecedents that were favourable to him, such as his modest record of convictions and his good record of employment. The appellant's real complaint is that her Honour did not give sufficient weight to these matters. As this court has said on many occasions, a mere allegation of a weighting error is not generally a separate ground of appeal: see Vagh v The State of Western Australia [2007] WASCA 17. This allegation has no reasonable prospect of succeeding.
3. Did the total effective sentence infringe the totality principle?
53 The following accepted statement of the totality principle was made by McLure JA in Roffey v The State of Western Australia [2007] WASCA 246:
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).
(Page 17)
- The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260) [24] - [26].
54 The appellant alleges that the total effective sentence of 7 years' imprisonment infringed the first limb of the totality principle. The appellant does not rely upon the second limb.
55 The appellant relied on the case of Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 to support the proposition that the total effective sentence of 7 years' imprisonment was too much. In particular, he pointed to the statement made by Miller AJA in that case, to the effect that, based on his review of the cases, a person convicted of a single offence of possession of methylamphetamine with intent to sell or supply it to another, of amounts between 3 and 65 g, could expect to receive a term of immediate imprisonment of between 2 and 5 years' imprisonment. As I understand the appellant's argument, the sentence imposed upon him for count 1 was outside the range expressed by Miller AJA, thus the total effective term imposed upon him was excessive. This argument reflects a misunderstanding of the effect of what Miller AJA said in Bosworth.
56 Miller AJA's analysis does not amount to a sentencing matrix: Lynch v The State of Western Australia [2011] WASCA 243 [11]. It is not the case that whenever an offender is convicted of an offence of possession of between 3 and 65 g of methylamphetamine with intent to sell or supply, he or she must receive a term of imprisonment of between 2 and 5 years. The analysis which must be undertaken in any given case requires an examination of all relevant sentencing factors. When that process is undertaken in the present case, it can be seen that the total effective sentence did not infringe the first limb of the totality principle. Based on her Honour's findings of fact, the appellant was a dealer in several types of illicit drugs and had been engaged in that activity for some period of time. Although the quantity and purity of the illicit substances involved are not the only factors to be considered, they are nevertheless important: Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [50]. The appellant supplied significant quantities of methylamphetamine and ecstasy which were of a reasonable purity. The total amount of methylamphetamine and ecstasy supplied by
(Page 18)
- the appellant was 113.4 g. The appellant's enterprise clearly generated considerable financial gain, as the amount of cash found in the appellant's house shows. Both general and specific deterrence were important sentencing factors. Matters personal to the appellant, while not irrelevant, were of secondary importance.
57 The appellant did not plead guilty. Contrary to the suggestion made by the appellant, her Honour did not treat this as an aggravating factor. The fact that the appellant did not plead guilty simply meant that this mitigating factor did not apply to him.
58 My review of the case law does not support the appellant's contention that the total effective sentence of 7 years' imprisonment offends the totality principle. Having considered such recent cases as Jordan v The State of Western Australia [2012] WASCA 163; Chu v The State of Western Australia [2012] WASCA 135; Ricciardi v The State of Western Australia [2012] WASCA 106; Karakuyu v The State of Western Australia [2012] WASCA 75; Lam v The State of Western Australia [2010] WASCA 61; and Nguyen v The State of Western Australia [2009] WASCA 81, it cannot be said that 7 years' imprisonment after trial was inconsistent with the penalties customarily imposed.
59 In my opinion, it is not reasonably arguable that the total effective sentence imposed upon the appellant in this case infringed the first limb of the totality principle.
4. Did the sentence infringe the parity principle?
60 As in cases such as Jardim v The State of Western Australia [2011] WASCA 83 and Magdi v The State of Western Australia [2010] WASCA 234, here the court is concerned with whether the parity principle has been infringed as a result of a lack of disparity between the sentences imposed upon the appellant on the one hand and Forman on the other.
61 In MGM v The State of Western Australia [2012] WASCA 24, I explained the parity principle in these terms:
The parity principle is founded on the norm of equal justice: Green & Quinn v The Queen [2011] HCA 49 [28]. Its terms, in the ordinary case, are settled. It was expressed in this way by Gibbs CJ (Wilson J agreeing) in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606:
It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal,
- receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account (609).
- See also I (a child) v The State of Western Australia [2006] WASCA 9 [65] - [71] (Steytler P).
The concept of equal justice does not equal mathematical precision. What is required before the court can intervene is that any disparity (or lack of disparity) gives rise to an objectively justifiable sense of grievance or an appearance that justice has not been done. The fact that an appellant feels a sense of grievance is not determinative: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson & Gaudron JJ), 338 (Kirby J).
Ultimately, what is required is that there is a proper relationship between the sentences imposed on co-offenders. This requires a comparison of the sentence imposed on each offender, and an evaluation of their involvement in the commission of the offence and their antecedents: D A Thomas, Principles of Sentencing (2nd ed) 64 - 65; and Jardim v The State of Western Australia [12] - [13] (McLure P, Pullin JA agreeing), [22] (Hall J) [41] - [43].
62 In deciding whether there is a justifiable sense of grievance, it is necessary to take into account the application and effect of relevant sentencing principles, including the totality principle: Jardim [13]. As was explained by McLure P in Jardim, a consequence of the totality principle is that there is not a linear relationship between the number of offences committed and the length of the total term [13].
63 The appellant's argument on this point is that Forman was convicted of more offences and yet received a total effective sentence which was less than the total effective sentence imposed upon the appellant. He submits that this gives rise to an objectively justifiable sense of grievance on his part.
64 This submission cannot reasonably be sustained. Three points need to be made. First, the totality principle applied to the total effective sentence imposed upon Forman. Second, unlike the appellant, Forman pleaded guilty at the earliest opportunity. Third, the appellant's criminality was greater than Forman's in respect of those offences that were common between them because the appellant was Forman's supplier and was further up the drug distribution hierarchy.
(Page 20)
65 Having regard to these factors, any sense of grievance the appellant has because he received a longer total effective sentence than Forman is not, in an objective sense, justified.
5. Was the learned sentencing judge biased?
66 The appellant submits, in effect, that because of the alleged errors, it may be inferred that the learned sentencing judge was biased against him. For the reasons I have already given, it is not reasonably arguable that her Honour made the errors alleged by the appellant. Even if one or more of the alleged errors had been committed, that would not be a reasonable basis upon which to infer actual or apprehended bias, having regard to the well-known tests set out by the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 and Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488.
One last matter
67 In the appellant's written submissions supporting his application to adduce additional evidence at the hearing of the appeal is the following statement:
The appellant appeals against any declaration that he is a drug trafficker in [the] absence of prima facie evidence, intent or mens rea and in the absence of proof beyond reasonable doubt. See case of Momcilovic v The Queen [2011] HCA 34.
68 I note there is no separate ground of appeal in respect of the drug trafficker declaration. I assume that the appellant's purported appeal against the making of the declaration is in context no more than stating that if his appeal against conviction succeeds, the drug trafficker declaration falls away.
69 If this assumption is incorrect and the statement is meant as a separate ground of appeal, then an appeal based on that ground is incompetent. The appellant's appeals are brought under the Criminal Appeals Act. That Act does not confer upon an appellant a right to appeal against the making of a drug trafficker declaration. An appeal against the making of a declaration lies under the District Court of Western Australia Act 1969 (WA): Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119 [37] - [63]; Donohoe v The Director of Public Prosecutions (WA) [2011] WASCA 239 [62].
70 However, even if the appeal based on that ground was competent, it has no reasonable prospect of success.
(Page 21)
71 Section 32A of the Misuse of Drugs Act 1981 (WA) relevantly provides:
32A. Drug trafficking
(1) If a person is convicted of -
…
(b) a serious drug offence in respect of -
(i) a prohibited drug in a quantity which is not less than the quantity specified in Schedule VII in relation to the prohibited drug; or
(ii) prohibited plants in a number which is not less than the number specified in Schedule VIII in relation to the particular species or genus to which those prohibited plants belong,
the court convicting the person of the serious drug offence first referred to in paragraph (a), or the serious drug offence referred to in paragraph (b), as the case requires, shall on the application of the Director of Public Prosecutions or a police prosecutor declare the person to be a drug trafficker.
- … serious drug offence means a crime under section 6(1), 7(1), 33(1)(a) or 33(2)(a).
73 In light of the evidence at trial and the jury's verdicts on counts 1 and 2, the making of a drug trafficker declaration was inevitable and was in accordance with the provisions of s 32A of the Misuse of Drugs Act.
74 The appellant does not explain the relevance of Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 to his argument that the drug trafficker declaration should not have been made. His reliance on that case is misconceived. Her Honour did not err in making a drug trafficker declaration.
(Page 22)
Orders
75 In respect of the appeal against conviction, CACR 186 of 2012, I would make the following orders:
1 Leave to appeal is refused.
2. The appeal is dismissed.
76 In relation to the appeal against sentence, CACR 187 of 2012, I would make the following orders:
1. The appellant's application to adduce additional evidence is dismissed.
2. Leave to appeal is refused.
3. The appeal is dismissed.
2
33
2