Rowson v The State of Western Australia
[2018] WASCA 82
•24 MAY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ROWSON -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 82
CORAM: MAZZA JA
MITCHELL JA
BEECH JA
HEARD: 11 APRIL 2018
DELIVERED : 24 MAY 2018
FILE NO/S: CACR 76 of 2017
BETWEEN: CHRISTOPHER NEIL ROWSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SCOTT DCJ
File Number : IND 102 of 2016
Catchwords:
Criminal law - Application for leave to appeal against sentence - Possession of methylamphetamine with intent to sell or supply - Conviction after trial - Manifest excess - Whether error involved in describing appellant as a 'high-end dealer-user'
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr P J Urquhart |
| Respondent | : | Mr B M Murray |
Solicitors:
| Appellant | : | Seamus Rafferty Barrister & Solicitor |
| Respondent | : | Director of Public Prosecutions for Western Australia |
Case(s) referred to in decision(s):
Chadburne v The State of Western Australia [2017] WASCA 216
Chen v The State of Western Australia [2017] WASCA 114
Chen v The State of Western Australia [2017] WASCA 99
Gaskell v The State of Western Australia [2018] WASCA 8
Hoang v The State of Western Australia [2015] WASCA 130
Jneid v The State of Western Australia [2018] WASCA 67
Kezkiropoulos v The State of Western Australia [2018] WASCA 58
Kitis v The State of Western Australia [2013] WASCA 34
Le v The State of Western Australia [2015] WASCA 73
Ly v The State of Western Australia [2015] WASCA 18
Mather v The State of Western Australia [2017] WASCA 148
Mikulic v The State of Western Australia [2011] WASCA 127
Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324
Nguyen v The State of Western Australia [2017] WASCA 35
Ozan v The State of Western Australia [2013] WASCA 27
Penney v The State of Western Australia [2011] WASCA 71
Pham v The State of Western Australia [2011] WASCA 244
Phan v The State of Western Australia [2014] WASCA 144
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Pham [2015] HCA 39; (2015) 256 CLR 550
Santos v The State of Western Australia [2016] WASCA 107
Tago v The State of Western Australia [2018] WASCA 59
The State of Western Australia v Johnson [2010] WASCA 187
Tresnjo v The State of Western Australia [2015] WASCA 193
Yiu v The State of Western Australia [2016] WASCA 172
Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1
JUDGMENT OF THE COURT:
Introduction
The appellant was convicted after trial of the following counts, for which he received the following individual sentences:
(1)Possession of methylamphetamine, with intent to sell or supply it to another. That is an offence contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). This count related to about 2.131 kg of methylamphetamine located in and about a spa at the appellant's house, together with an unascertained additional quantity dissolved in spa water which was disposed of on the appellant's lawn. The appellant was sentenced to 15 years' imprisonment in respect of this offence.
(2)Possession of methylamphetamine, with intent to sell or supply it to another. This count related to 35.97 g of methylamphetamine located in the appellant's wardrobe. The appellant was sentenced to 3 years 6 months' imprisonment in respect of this offence.
(3)Having ready access simultaneously to both a dangerous weapon, namely an air rifle, and a prohibited drug, namely methylamphetamine, when not authorised under the Misuse of Drugs Act to be in possession of that drug. That is an offence contrary to s 68E(2) of the Criminal Code. The appellant was sentenced to 12 months' imprisonment in respect of this offence.
The sentences for counts 2 and 3 on the indictment were ordered to be served concurrently with the sentence for count 1 on the indictment. The total effective sentence was therefore 15 years' imprisonment.
All the offences were committed at Mount Richon on 9 April 2015. The appellant was charged with count 1 jointly with Ahmet Nuhana. Mr Nuhana was also convicted of count 1, although his conviction was subsequently set aside on appeal and a judgment of acquittal substituted.
The appellant now appeals against his sentence. Ground 1 contends that the individual sentence for count 1 was manifestly excessive. Ground 2 contends that the sentencing judge erred in finding that he was a 'high end dealer-user'.
For the following reasons, neither ground has any reasonable prospect of succeeding. Leave to appeal should be refused on both grounds and the appeal dismissed.
Circumstances of offending
The sentencing judge made the following findings as to the circumstances of the appellant's offending,[1] none of which are challenged in the appeal.
[1] Sentencing ts 757 - 760.
The appellant was the sole occupant of a house at Mount Richon. The premises contained features and paraphernalia which were consistent with them being used in the facilitation of drug-dealing activities, including:
(1)Combination locks on the outside doors of the back room and the main bedroom.
(2)A CCTV system in the house which was linked to a monitor in a back room, which enabled the occupants of that room to maintain surveillance on outer areas of the premises, including the driveway.
(3)A signal jammer, a camera detector, and a radio frequency detector.
There were a number of weapons on or about the premises. In the back room there was an air rifle just inside the door, a double-bladed sword with another sword inside the handle, and a heavy steel baton with a knife inside the handle. In the walk-in robe in the bedroom there was a neck knife on a lanyard, two sets of metal knuckledusters, a credit card knife which could be carried in a wallet, a knuckleduster knife and starter gun. In a Mercedes motor vehicle parked at the premises, there was a single sharp-bladed knife which folded out. The weapons were capable of being used to threaten or deter any intruder who might endeavour to enter the premises to steal drugs and/or cash.
There were photographs on the appellant's mobile phone, taken no more than a couple of weeks prior to 9 April 2015, of the appellant at the house displaying cash totalling at least $400,000, which was derived from or utilised in dealing in drugs.
In the back room there was a mixing bowl with MSM (being a popular cutting agent), digital scales, bowls and items to mix methylamphetamine with MSM for the purposes of cutting it, numerous clip-seal bags, loose latex gloves and a box of latex gloves, a bottle of acetone and a vacuum sealer. The appellant's DNA was recovered from the outer surface of one of the latex gloves, and the inner and outer surfaces of another glove.
Shaun Mather came to the appellant's house in possession of a considerable quantity of high-purity methylamphetamine, the majority of which was in the vicinity of 80% pure methylamphetamine. The weight of the methylamphetamine was 2.131 kg, plus an indeterminable quantity in the residual spa water. Given the purity of the methylamphetamine, the trial judge was satisfied that the appellant was close to the source.
Mr Mather attended the appellant's house in accordance with a prior arrangement for the purpose of cutting and packing the methylamphetamine for sale. The appellant provided the premises for that purpose and assisted Mr Mather in the back room.
The appellant let Mr Mather into the back room where they began to cut it and package it in clip-seal bags. At a purity of an average of 80%, in light of evidence that the street purity at the time was 60%, the weight of the end product would be in the vicinity of 2.5 kg. The value of that end product at street level well exceeded $2 million.
Police raided the premises, cutting short the processing of the methylamphetamine. Their attendance would have been evident from the CCTV monitor in the back room. There was then a panicked attempt by Mr Mather to secrete or dump the methylamphetamine into a spa bath located in an enclosed patio area near the back room.
The appellant was in joint possession of the methylamphetamine, and intended to sell or supply the methylamphetamine the subject of count 1 primarily for commercial gain. The sentencing judge could not make a finding as to whether the commercial gain would be in the form of product or cash, or a combination of both.
The sentencing judge was not satisfied beyond reasonable doubt that the appellant's intention was to sell or supply the finished product directly to the community. However, at the very least the appellant was in possession of this significant quantity of methylamphetamine for the purposes of processing it, with the intent that it be distributed into the community, whether directly or indirectly. Either way, the end product was intended by the appellant to find its way into the community.
As to count 2, 35.97 g of methylamphetamine was located in the walk-in robe of the main bedroom of the appellant's house. The sentencing judge was unable to make any positive finding as to the extent to which this quantity of methylamphetamine was solely or primarily for commercial gain, which would be an aggravating factor. The sentencing judge accepted that the appellant was, at the time, addicted to, and a daily user of, methylamphetamine. The appellant was sentenced on the basis that he was in possession of that quantity of methylamphetamine with intent to sell or supply it or part of it to another.
As to count 3, the air rifle was in the corner of the back room near the door. Absent any explanation as to a lawful excuse for having the weapon in that proximity to the methylamphetamine, the only reasonable inference was that it was available to be used to at least threaten if need be.
Personal circumstances
The sentencing judge made the following unchallenged findings as to the appellant's personal circumstances.[2]
[2] Sentencing ts 760 - 763.
The appellant was 31 years old at the time of sentencing.
Although he had a stable upbringing, the appellant commenced substance abuse from the age of 12 years. He used LSD heavily for the next two years and had consumed alcohol and cannabis from that age. The appellant used methylamphetamine, which became his drug of choice, from the age of 14, and had been a daily user of that drug for most of his adult life. The appellant had made attempts to abstain from methylamphetamine use. He underwent residential drug treatment in 2007 and 2008, and was off drugs for six months from late 2013.
When the appellant was 24 years old, he was severely assaulted with a baseball bat during a 'run through' at his house 'caused by negative associates and drug activities'.[3]
[3] Sentencing ts 761.
The appellant has had three significant relationships. At 18 years of age, the appellant had a two-year relationship from which he has an 11‑year‑old son of whom he had custody. At 27 years of age, the appellant had a relationship with a partner who committed suicide two years into the relationship, at which time she was a few weeks pregnant. Her death was very distressing for the appellant. Shortly after the appellant became involved with his current partner, with whom he has two young sons. At the time of sentencing, the appellant's 11‑year‑old son was being cared for by his current partner.
The appellant suffered from anxiety and depression. It was not suggested that he suffered any mental health condition which was causative of the offences.
The appellant left school at year 9, and completed a plumbing apprenticeship with his father. However, he has not worked consistently since doing so. The appellant associated with negative peers and was involved in motorcycle groups. The appellant had apparently incurred drug debts, over which he had recently been assaulted in prison. The appellant was in protective custody at the time of sentencing.
The appellant has a lengthy record of prior convictions. These include four convictions in the Magistrates Court for possession of prohibited drugs with intent to sell or supply, three of which relate to methylamphetamine. There are also a number of offences related to the possession of prohibited drugs, and also smoking utensils. There have also been a number of convictions relating to firearms. The appellant had not previously been sentenced to a term of immediate imprisonment.
Ground 2: characterisation of the appellant as a 'high-end dealer-user'
It is convenient to begin by addressing ground 2, which asserts express error. Ground 2 contends that the sentencing judge erred in finding that the appellant was a 'high-end dealer-user' having regard to the fact that the appellant was sentenced as an aider in the enterprise of another.
This ground complains about the following passage of the sentencing judge's reasons, which followed the conclusion that Mr Mather's attendance at the appellant's house was prearranged and the appellant provided his premises and assisted Mr Mather in the back room:[4]
In the end, I'm satisfied that you were an essential player in a transaction which - the purpose of which was to ultimately distribute by sale into the community a substantial amount of methylamphetamine to which I've already made reference. You could be conveniently described as a high‑end dealer-user given that I accept that you were at the time a prolific user of methylamphetamine. (emphasis added)
[4] Sentencing ts 759.
The sentencing judge then went on to find that the appellant was in joint possession of the methylamphetamine with the intention of selling or supplying it primarily for commercial gain.
The appellant submits that the appellant should have been described as a 'mid-level user-dealer for profit'.[5] The appellant submits that the label 'high-end dealer-user' would only have been appropriate if the appellant was the beneficial owner of the methylamphetamine which was the subject of count 1.[6] The appellant submits that the judge made a specific error which had a material effect on the duration of the sentence imposed for count 1. The appellant submits that this court should re-sentence him to a term of imprisonment for a duration which is commensurate with his involvement in the offence and consistent with his place in the hierarchy of those involved in commercial drug-dealing activity.[7]
[5] White appeal book 11.
[6] Appeal ts 54.
[7] White appeal book 11.
There is no merit in this ground. While the sentencing judge made the observation that the appellant could conveniently be described as a 'high‑end dealer-user', it is apparent from the sentencing remarks as a whole that his Honour's focus was appropriately on what the appellant did rather than the label to be attached to his involvement.[8] The sentencing judge made specific findings about what the appellant did, and sentenced the appellant on the basis of those findings rather than a label to be attached to his involvement.
[8] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [19]; R v Pham [2015] HCA 39; (2015) 256 CLR 550 [34]; Gaskell v The State of Western Australia [2018] WASCA 8 [129].
The label 'high-end dealer-user' does not have any precise meaning. There is no basis for the appellant's submission that a person must be a beneficial owner of the drugs before the description can be applied to them. It is a reasonable way of describing a person addicted to methylamphetamine whose house is equipped in a sophisticated manner for drug dealing, who has been photographed with over $400,000 derived from or utilised in dealing in drugs, who was preparing over 2 kg of methylamphetamine worth well over $2 million for sale or supply and who acts primarily for commercial gain. There was no error in the sentencing judge's observation that the appellant could be conveniently described as a 'high-end dealer-user'.
Ground 1: Inferred error
Although ground 1 invokes the language of the first limb of the totality principle, it was explained in oral submissions as contending that the sentence of 15 years' imprisonment imposed for count 1 was manifestly excessive.[9]
General principles
[9] Appeal ts 53.
The general principles relevant to dealing with such a ground are well established:
(1)A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
(2)The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate that the sentence imposed is unreasonable or plainly unjust.
(3)The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending 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 the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
(4)A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
(5)When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
Maximum penalty
At the relevant time, the maximum penalty for the offence of which the appellant was convicted was 25 years' imprisonment and a fine of $100,000.[10]
Customary sentencing standards
[10] Misuse of Drugs Act s 34(1)(a).
The approach to sentencing for offences against s 6(1) of the Misuse of Drugs Act is well established. The principal sentencing considerations for offences of dealing or trafficking in dangerous drugs are general and personal deterrence. The weight of the drugs is not generally the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. That is because it can be presumed that the greater the quantity and the purity, the greater the harm which may be done to the community. 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.[11]
[11] See Gaskell [128].
As McLure P noted in The State of Western Australia v Johnson:[12]
It is the experience of the courts that illicit drugs cause or materially contribute to a very significant proportion of the criminal offences committed in this State, either as a result of users acting under their influence or because of the need to finance or secure a supply of drugs. There are often strong financial incentives to deal in prohibited drugs. Further, significant public resources are devoted to the difficult task of detecting and apprehending persons involved in the supply and distribution of illicit drugs. It is for these reasons that in sentencing for offences under s 6(1) of the Act, significant weight is given to general deterrence with the consequence that mitigating circumstances personal to the offender, including age and good character, are accorded less weight.
[12] The State of Western Australia v Johnson [2010] WASCA 187 [17].
The customary sentencing standards for offences involving the possession of large quantities of methylamphetamine with intent to sell or supply have been addressed in a number of decisions of this court, many of which are very recent.[13] We refer to the outline of cases in Gaskell [131] ‑ [141]. Having regard to the different circumstances of the offenders and the offences, the sentence for count 1 is broadly consistent with those imposed in these other cases.
[13] See Jneid v The State of Western Australia [2018] WASCA 67; Tago v The State of Western Australia [2018] WASCA 59; Kezkiropoulos v The State of Western Australia [2018] WASCA 58; Gaskell; Chadburne v The State of Western Australia [2017] WASCA 216; Chen v The State of Western Australia [2017] WASCA 114; Chen v The State of Western Australia [2017] WASCA 99; Nguyen v The State of Western Australia [2017] WASCA 35; Yiu v The State of Western Australia [2016] WASCA 172; Santos v The State of Western Australia [2016] WASCA 107; Zanon v The State of Western Australia [2016] WASCA 91; (2016) 50 WAR 1; Tresnjo v The State of Western Australia [2015] WASCA 193; Hoang v The State of Western Australia [2015] WASCA 130; Le v The State of Western Australia [2015] WASCA 73; Ly v The State of Western Australia [2015] WASCA 18; Phan v The State of Western Australia [2014] WASCA 144; Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324; Ozan v The State of Western Australia [2013] WASCA 27; Kitis v The State of Western Australia [2013] WASCA 34; Pham v The State of Western Australia [2011] WASCA 244; Mikulic v The State of Western Australia [2011] WASCA 127; Penney v The State of Western Australia [2011] WASCA 71.
Oral submissions advanced by the appellant's counsel made reference to a number of specific cases.
In Gaskell, the offender had been sentenced to 18 years 6 months' imprisonment in respect of about 21 kg of methylamphetamine located in a storage unit, as part of a total effective sentence of 20 years' imprisonment. The 35‑year‑old offender pleaded guilty and received a 12% discount under s 9AA of the Sentencing Act 1995 (WA). The methylamphetamine was to be sold by the offender on consignment, and the distribution of the drugs was described as 'at the very highest level of commercial activity' although there was someone higher than the appellant in the hierarchy. The plurality observed:[14]
There is no doubt that the appellant's offending was very serious. He had possession of an extremely large quantity of drugs of high purity valued in the region of $4 million to $6 million. As the packaging of the drug indicated, he was commercially selling large quantities of drugs. His motivation was financial gain. These features and the other circumstances of the case demonstrated that the appellant was near the top of the drug dealing hierarchy.
Nevertheless, the appellant was not at the top of the drug dealing hierarchy. He was not the beneficial owner of the drugs which he was engaged in selling. It was the person or persons above him who were in ultimate control and who derived the ultimate profits of the enterprise, notwithstanding that the appellant was, it may be inferred, richly rewarded for his criminal conduct.
The sentence in Gaskell was found to be manifestly excessive, and a 16 year sentence (as part of a total effective sentence of 18 years' imprisonment) was substituted.
[14] Gaskell [147] - [148].
The offending in Gaskell was more serious than in the present case by reason of the greater weight of methylamphetamine involved and the finding that the offender in that case would be 'richly rewarded'. However, the sentence in Gaskell was greater than that imposed on the appellant, in a context where the offender pleaded guilty and had much better antecedents than the appellant.
In Santos, the offender was convicted after trial on two counts of possession of prohibited drugs with intent to sell or supply. He piloted an aircraft which brought the drugs from New South Wales to Western Australia. The first count concerned 9 kg of MDMA (ecstasy), for which the offender was sentenced to 13 years' imprisonment. The second count concerned about 22 kg of methylamphetamine, for which the offender was sentenced to 15 years' imprisonment. The sentences were ordered to be served concurrently, resulting in a total effective sentence 15 years' imprisonment. At the time of sentencing the offender had recently completed a sentence of 2 years 9 months' imprisonment for an offence involving the cultivation of cannabis plants. The decision of this court concerned an application to withdraw a notice of discontinuance. In the course of refusing that application, this court observed that it could not reasonably be maintained that there had been a breach of the first limb of totality principle.[15]
[15] Santos [51] - [52].
In Milenkovski the offender was convicted after trial of one count of possession of 2.675 kg of methylamphetamine with intent, for which he was sentenced to 12 years' imprisonment, and one count of attempting to possess 4.983 kg of methylamphetamine with intent, for which he was sentenced to 14 years 6 months' imprisonment. The purity of the methylamphetamine in count 1 was between 17% and 19%. The purity of the methylamphetamine in count 3 was between 53% and 69%. The offender committed the offences solely for very significant commercial gain, was at the top of the distribution chain and was in charge of a significant and well organised criminal enterprise. He received a total effective sentence of 17 years' imprisonment. An appeal against the sentences on manifest excess and totality grounds was dismissed. Buss JA expressed the view that the total effective sentence was 'reasonably lenient'.[16] Mazza JA found that the total effective sentence was 'well within the range of a proper sentencing discretion'.[17]
[16] Milenkovski [200].
[17] Milenkovski [216].
In Chen v The State of Western Australia,[18] the offender played a significant role, trusted by the principals in relation to 3.426 kg of methylamphetamine of 80 ‑ 81% purity. He was convicted after trial and sentenced to 14 years' imprisonment. Leave to appeal on the ground that his sentence was manifestly excessive was refused.
[18] Chen v The State of Western Australia [2017] WASCA 99.
The sentence of 15 years' imprisonment imposed on the appellant may be regarded as high when compared with the sentences imposed after trial in Santos and Milenkovski. However, as has been noted, the court's decision on the sentencing outcome in those individual cases does not, of itself, fix the upper or lower limit of the range.
It is also necessary to refer to the decision of this court in Mather v The State of Western Australia.[19] That case concerned an appeal by the appellant's co-offender against a sentence of 12 years 6 months' imprisonment for possession of methylamphetamine with intent. The drugs to which the charge related was the same methylamphetamine as was the subject of count 1 on the appellant's indictment. The findings as to the circumstances of Mr Mather's offending were consistent with the findings made against the appellant. An additional fact was that Mr Mather was observed by police to purchase the methylamphetamine from a patched member of an outlaw motorcycle gang on the day of the offence, although he did not use his own money to buy the drugs. Mr Mather received a 15% discount under s 9AA of the Sentencing Act, for an early plea of guilty made in the face of an overwhelming prosecution case. The court was 'far from persuaded that it is reasonably arguable that the sentence imposed upon' Mr Mather was manifestly excessive.[20] The decision in Mather provides a substantial obstacle for the appellant's contention that his sentence was manifestly excessive.
[19] Mather v The State of Western Australia [2017] WASCA 148.
[20] Mather [43].
The appellant submits that a sentence of 15 years' imprisonment after trial would only be appropriate if it were found that the offender was the owner of the drugs or stood at the top end of the hierarchy and was shown to have benefited to a significant degree from their involvement in the commercial distribution of drugs. That submission should not be accepted. Although an offender's role in an organisation and the distribution of the drugs is relevant, those factors should not be considered in isolation. There is no principled basis for substituting such a formula for an assessment of the sentence which is commensurate with the seriousness of the offence having regard to all relevant circumstances including the particular things which the offender did. Cases, such as Zanon, Santos, Chen,[21] Chadburne and Mather are against that proposition.
Seriousness of the appellant's offence
[21] Chen v The State of Western Australia [2017] WASCA 99.
The appellant's offence represents a very serious offence against s 6(1) of the Misuse of Drugs Act in respect of a significant quantity and value of methylamphetamine. His house was set up for the drug dealing operation in a sophisticated manner which included elements such as combination locks, a CCTV monitoring system, signal jammer, camera detector, radio frequency detector and weapons. He clearly formed a central part of a large commercial operation. There were no substantial mitigating factors.
Antecedents
The appellant's personal circumstances were not in his favour. He had an entrenched drug habit, poor employment history and a serious criminal record. He did not demonstrate any insight or remorse into the causes of his offending behaviour.
Conclusion as to ground 1
Having regard to all of the above matters, the sentence of 15 years' imprisonment imposed on the appellant in respect of count 1 is not unreasonable or plainly unjust. Error in the application of principle cannot arguably be inferred from the outcome of the exercise of the trial judge's sentencing discretion.
Orders
For the above reasons, the following orders should be made in the appeal:
(1) Leave to appeal is refused on both grounds of appeal.
(2) The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CR
ASSOCIATE TO THE HONOURABLE JUSTICE MITCHELL24 MAY 2018
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