RP v The State of Western Australia

[2010] WASCA 75

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   RP -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 75

CORAM:   McLURE P

OWEN JA
JENKINS J

HEARD:   25 MARCH 2010

DELIVERED          :   25 MARCH 2010

PUBLISHED           :  28 APRIL 2010

FILE NO/S:   CACR 159 of 2009

BETWEEN:   RP

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :O'NEAL DCJ

File No  :IND 1255 of 2008

Catchwords:

Criminal law - Appeal against sentence - Possession of MDMA with intent to sell or supply - Relevance of assistance given to authorities - Relevance of re­sentencing in District Court after successful offender appeal - Double jeopardy principle not applicable

Legislation:

Misuse of Drugs Act 1981 (WA)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     Mr J McGrath

Solicitors:

Appellant:     Justine Fisher

Respondent:     Director of Public Prosecutions (WA)

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

******* v The State of Western Australia [2009] WASCA ***

A Child v The State of Western Australia [2007] WASCA 285

Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49

Burke v The State of Western Australia [2007] WASCA 210

Chan v The Queen (1989) 38 A Crim R 337

Festus v The Queen [2002] WASCA 25

Ma v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

R v Peterson [1984] WAR 329

The State of Western Australia v Andela [2006] WASCA 77

The State of Western Australia v Gibbs [2009] WASCA 7; (2009) 52 MVR 21

The State of Western Australia v Higgins [2008] WASCA 157

The State of Western Australia v Wynne [2008] WASCA 195; (2009) 188 A Crim R 502

TLM v The State of Western Australia [2009] WASCA 106

York v The Queen [2005] HCA 60; (2005) 225 CLR 466

1. McLURE P:  I agree with Jenkins J.

2. OWEN JA:  I agree with Jenkins J.

3. JENKINS J:  On 27 October 2009 the appellant was sentenced to 34 months' imprisonment for one count of possession of MDMA with intent to sell or supply, contrary to the Misuse of Drugs Act 1981 (WA), s 6(1)(a). He appeals against that sentence.

4. At the conclusion of the hearing of the application for leave to appeal and the appeal, the court unanimously dismissed the appeal and said that it would publish its reasons at a later date.  These are my reasons for joining in the order of the court.

Grounds of appeal

1. There are two grounds of appeal.  The first is that the sentence was manifestly excessive and the second is that the sentencing judge erred when he failed to attach sufficient weight to relevant mitigatory factors.

2. In effect, it is said that the sentence is manifestly excessive because of certain mitigating factors which are, principally, the same factors it is said that the judge failed to attach sufficient weight to.  The common factors include the appellant's criminality in that there was only one incident, that the appellant was a user/dealer and the appellant's general antecedents.  There are a further two factors which are said to distinguish the appellant from many other offenders.  They are that the appellant had provided assistance to the authorities and that the sentence appealed from is a re‑sentence after the appellant successfully appealed against his first sentence.

3. On 26 November 2009 Wheeler JA granted leave to appeal on the ground that the sentencing judge erred when he failed to attach sufficient weight to the appellant's assistance to authorities.  In respect to the grounds as otherwise particularised, her Honour referred the application for leave to appeal to the hearing of the appeal.

4. The appellant submits that the sentence of imprisonment imposed by the sentencing judge ought to be wholly suspended or reduced in length.

Background

1. On 13 March 2008 the appellant and a co‑offender were observed by police to be seated inside the appellant's parked car.  Police conducted a search of the appellant and his car and found the appellant to be in possession of $1,450 in cash and a large quantity of plastic clip‑seal bags.  Thirty‑five MDMA tablets were scattered around the appellant's vehicle.  Two MDMA tablets were located in the appellant's front trouser pocket.  Police conducted an interview with the appellant at the scene wherein he admitted possession of the tablets and that he personally used MDMA.  He said he occasionally supplied the tablets to his friends, but not for profit.

2. The appellant was taken back to a police station where police found a plastic clip‑seal bag containing a further 539 MDMA tablets, weighing 135 g, secreted in the appellant's underwear.  The appellant made no further admissions concerning the drugs.

3. Police conducted another search of the appellant's car and found a further 17 MDMA tablets, weighing 5 g.  Police seized a total of 593 MDMA tablets which weighed 149.18 g.

4. The appellant pleaded guilty on the fast‑track system to the one charge, the subject of this appeal.  On 11 February 2009 he was sentenced to 3 years 6 months' imprisonment.  The appellant appealed that sentence.  This court found that the sentencing judge had erred in relying on facts, contained in the pre‑sentence report, which were disputed by the appellant.  The appeal was allowed and the charge was remitted to the District Court for re‑sentencing:  ******* v The State of Western Australia [2009] WASCA ***.

5. When the matter returned to the District Court, a different sentencing judge was advised that there would be no need for a trial of the issues as the State accepted that the appellant was to be sentenced as a user/dealer.  Further, the appellant conceded that the $1,450 found on him was the proceeds from the sale of MDMA.  The parties requested the sentencing judge to ignore those portions of the pre‑sentence report which were disputed by the appellant.  The sentencing judge did so.  However, the appellant accepted that on the occasion on which he was arrested he was selling MDMA to repay a debt owed to his drug dealer and to fund his own habit.  It was said on his behalf that he had been 'invited into the transaction' in order to pay off a drug debt to his supplier.

6. After the prosecutor presented the facts, a plea in mitigation was presented by defence counsel.  She invited the sentencing judge to have regard to written submissions which had been filed for the original sentencing proceeding.  Defence counsel made oral submissions about the appellant's personal circumstances.  In particular, counsel mentioned the fact that the appellant had faced 'the rigours of sentence at first instance'.  She said that it had been a 'traumatic series of months' for the appellant because he did not know his future.  Counsel submitted that as a result of the history of the matter, the appellant had been placed in double jeopardy and that should be taken into account when he was re‑sentenced.

7. Defence counsel submitted that the most significant mitigating factors were his youth (20, at the time of the commission of the offence), his fast‑track plea of guilty, his lack of relevant prior convictions, the assistance he had given to the authorities, his intention to live a law‑abiding life and the fact that this was a 'one‑off transaction'.

8. It was submitted that the appellant commenced recreational use of ecstasy after the breakdown of a relationship in 2007.  That use escalated.  As he was gainfully employed at the time, he was able to support his recreational habit.  When his use increased he incurred a debt of $8,000 to his dealer and this offence was committed in order to pay off that debt.

9. On 27 October 2009 the sentencing judge delivered ex tempore reasons for the sentence which he imposed.  It is not alleged that his Honour failed to take into account any relevant mitigatory factor.  His Honour initially adverted to the manner in which the matter had come before him and referred to this as a 'reasonably tortuous path', notwithstanding the appellant's fast‑track plea.  His Honour then detailed the facts.  His Honour noted that the appellant had profited by a margin of $2 ‑ $3 on the sale of each tablet and that he used the money to fund his own drug habit and to repay a substantial debt to his supplier.  His Honour found that the clip‑seal bags were to be used to facilitate further sales.

10. In respect to the double jeopardy issue, his Honour said that that rule operated so that the appellant should not be exposed to a greater punishment than was imposed on the prior occasion.  He said that if anything, the sentence he imposed should be less than was previously imposed.

11. His Honour then detailed the appellant's personal circumstances.  These being, most relevantly, that he had been born in 1988 in Bosnia‑Herzegovina and that he had come to Australia, with his parents, as a refugee.  He came from a supportive family and had had a good upbringing.  His Honour acknowledged that the appellant felt shame at the embarrassment he had brought on his family.

12. His Honour noted the good results that the appellant had achieved at school and his steady employment history after school.  He further noted his lack of prior criminal record and that the appellant's youth and good antecedents were mitigating factors.  However, due to the seriousness of the offence, those good antecedents were not as influential in the sentencing process as they otherwise would be.

13. His Honour said that he had referred to a number of cases, and in particular to The State of Western Australia v Andela [2006] WASCA 77. His Honour said that in his view, the only appropriate sentence was a term of imprisonment and that despite the mitigating factors, it was not appropriate to suspend that term. His Honour found that apart from some factors in mitigation, an appropriate term of imprisonment would be 6 years' imprisonment. However, taking into account the appellant's fast‑track plea of guilty and the appellant's assistance given to authorities, he reduced the term of imprisonment to one of 2 years 10 months. He also ordered that the appellant would be eligible for parole and backdated his sentenced to commence on 30 October 2008, the date the appellant was remanded in custody.

14. The reference by his Honour to matters contained in the appellant's written submissions was an understandably oblique reference to the assistance which the appellant had given to the authorities.  It is unnecessary for me to detail that assistance.  I have examined all the relevant material and I am well aware of the nature and extent of it.

15. In determining the contention that the sentence was manifestly excessive, it is necessary to consider the sentence in the context of the maximum sentence prescribed by law, the standards of sentencing customarily observed for the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender:  Chan v The Queen (1989) 38 A Crim R 337 [342].

16. The maximum penalty for the offence of possession of a prohibited drug with intent to sell or supply is 25 years' imprisonment.

17. The appellant cites Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49, Burke v The State of Western Australia [2007] WASCA 210 and Andela as cases which are relevant to establishing the standards of sentencing for this offence.  The respondent disputes that Burke and Andela are comparable to the present case and says that they do not on their own establish a range of sentences customarily imposed for this offence.

18. It is only necessary to refer to the range of sentences from 2 ‑ 5 years' imprisonment for offences involving quantities of methylamphetamine from 3 g ‑ 65 g, identified by Miller AJA in Bosworth, to show that this sentence of 2 years 10 months, for a larger quantity of MDMA, was a lenient sentence and well within the range of sentences customarily imposed in broadly comparable cases.  The range in Bosworth is relevant even though it related to methylamphetamine and this case relates to MDMA:  The State of Western Australia v Higgins [2008] WASCA 157.

19. The appellant's reliance on the sentence of 3 years 4 months' imprisonment imposed on Burke for two offences involving possession of 500 MDMA tablets by a young first offender selectively ignores the fact that, more relevantly, Burke, after appeal, received a total of 5 years 2 months' imprisonment for three offences involving 500 MDMA tablets, with a weight of 122 g and a purity of 32 ‑ 33% and 27.9 g of methylamphetamine with a purity of 11 ‑ 46%.

20. Andela is not a comparable case.  It was a prosecution appeal against a suspended sentence of 2 years' imprisonment.  The State did not challenge the length of the term but contended that the trial judge should have ordered the sentence to be served immediately.  McLure JA (Roberts‑Smith and Buss JJA agreeing), said that the term of 2 years' imprisonment for a young first offender who had pleaded guilty on the fast‑track system for an offence involving possession of 500 MDMA tablets, with a weight of 138.5 g and a purity of 37 ‑ 42%, was lenient.  However, having regard to the principle of double jeopardy, the court when allowing the appeal reduced the term to 18 months' imprisonment, to be served immediately.  The case is of little assistance in determining what the appropriate sentence would have been for the offender at first instance.

21. The appellant was sentenced as a user/dealer.  The unchallenged findings of the sentencing judge were that the appellant's weekly use equated to 4 ‑ 6 MDMA tablets.  His Honour said that even if he was wrong in this regard and the appellant consumed 10 tablets per week, this was only a small fraction of the drugs that could sensibly be described as for the appellant's own use.  This meant that the commercial aspect of the appellant's offence was significant.  Taking into account this factor as well as that for drug offences of this type mitigatory factors are given less weight, the sentence was not manifestly excessive.

22. This ground of appeal must fail unless the appellant can establish that matters personal to him warranted a sentence either outside the usual range or, at the very least, at the very lowest end of it.  As I have said, the only two personal circumstances which distinguish the appellant from many other offenders are the assistance he gave to the police and his contention that the principle of double jeopardy applied to him.

23. An offender who gives substantial assistance to the authorities deserves a substantial discount in sentence:  York v The Queen [2005] HCA 60; (2005) 225 CLR 466 [3]; TLM v The State of Western Australia [2009] WASCA 106 [21]; A Child v The State of Western Australia [2007] WASCA 285; The State of Western Australia v Wynne [2008] WASCA 195; (2009) 188 A Crim R 502 [90] ‑ [94] and Ma v The Queen [2001] WASCA 325; (2001) 125 A Crim R 349. There is no tariff for discounts arising from co‑operation with the authorities. The quality of the co‑operation is a factor to be considered and then taken into account as a mitigating factor when determining the appropriate sentence for an offence.

24. The sentencing judge said that putting aside the appellant's fast‑track plea of guilty and his co‑operation with the authorities, a sentence of 6 years' imprisonment would have been appropriate.  Without saying whether he did or did not give a separate discount for each of those factors, his Honour sentenced the appellant to 2 years 10 months' imprisonment.  This represents a total reduction of 52.8% from his Honour's starting point for these two mitigating factors.  On any view this is a very substantial reduction from what would otherwise have been the appropriate sentence.  However, the appellant submits that a reduction of 40% ought to have been allowed for his co‑operation with the authorities, alone.  He says that given that it should be assumed that he received at least a 25% discount for his plea of guilty, the discount for his co‑operation was inadequate.  The appellant says that it would have also been appropriate for the sentencing judge to suspend any term of imprisonment ordered.

25. I do not accept the appellant's argument in this regard.  One way of analysing the sentence is to assume that his Honour allowed a 25% ‑ 35% reduction from his starting point for the plea of guilty:  Festus v The Queen [2002] WASCA 25. Such a discount range would result in a sentence of between 47 and 54 months' imprisonment. In order to arrive at a final sentence of 2 years and 10 months' imprisonment, the trial judge would have had to allow a further discount for assistance to authorities of between 28% and 37%. Given that the discount for co‑operation with the authorities is a matter of discretion for the sentencing judge, this analysis does not indicate to me the resulting sentence was manifestly excessive.

26. The second personal factor which the appellant relies upon is the principle of double jeopardy.  In R v Peterson [1984] WAR 329, Burt CJ (Smith and Pidgeon JJ concurring) described the basis for the double jeopardy principle in the following terms:

    Although an error affecting a sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence.  Crown appeals have been described as cutting across 'time‑honoured concepts of criminal administration'.  A Crown appeal puts in jeopardy 'the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal'.  The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence.  It was first in jeopardy before the sentencing court (331).

    The expression 'double jeopardy' is used with different meanings at different stages of the criminal justice process:  Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [9], [14]. Even so, given that its basis is that the State should not be allowed to make repeated attempts to convict or sentence an individual (Pearce [10]), it has no application to the re‑sentencing of an offender after a successful offender appeal. Further, on such a re‑sentencing there is no relevant sentencing principle which requires a judge to impose a lower sentence than was first imposed. The re‑sentencing judge's obligation is to impose a sentence according to law and, in particular, in accordance with any judgment of the appeal court.

27. In this case, the sentencing judge said he took into account the 'reasonably tortuous path' to sentencing.  I am satisfied that the sentencing judge took that factor into account in mitigation of penalty and that it was open to him to do so.  As his Honour noted, the appellant was sentenced to a lesser term than he had been sentenced to on the first occasion.

28. I would dismiss this ground of appeal.

Ground 2

1. As has been said many times before, it is very difficult for an appellant to succeed on appeal on a ground that alleges that insufficient weight was given to relevant mitigating factors:  The State of Western Australia v Gibbs [2009] WASCA 7; (2009) 52 MVR 21 [52] and the cases cited therein. As was said in Gibbs, a failure of that kind will not give rise to an express appealable error unless it was so significant as to lead to the conclusion that the sentencing judge failed to exercise the discretion entrusted to the court.

2. For the reasons I have identified in respect of ground 1, this is not such a case.  The sentencing judge took into account all relevant mitigatory factors and imposed a sentence which was well within his discretion.

   Note; This judgment has been anonymised.