Russell v The State of Western Australia

[2010] WASCA 49

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   RUSSELL -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 49

CORAM:   OWEN JA

HEARD:   ON THE PAPERS

DELIVERED          :   12 MARCH 2010

FILE NO/S:   CACR 172 of 2009

BETWEEN:   JUSTIN SCOTT RUSSELL

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :SCOTT DCJ

File No  :IND 1196 of 2009

Catchwords:

Criminal law and procedure - Sentencing - Leave to appeal against sentence - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal granted (one ground)
Leave to appeal refused (one ground)

Category:    B

Representation:

Counsel:

Appellant:     No appearance

Respondent:     No appearance

Solicitors:

Appellant:     Michael Tudori & Associates

Respondent:     Director of Public Prosecutions (WA)

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

Dao v The State of Western Australia [2007] WASCA 237

Royer v The State of Western Australia [2009] WASCA 139

Sinagra‑Brisca v The Queen [2004] WASCA 68

Trang v The State of Western Australia [2010] WASCA 44

1OWEN JA:  On 6 November 2009 the appellant pleaded guilty to 22 drug offences of varying kinds and three traffic offences.  He was sentenced to immediate imprisonment for a total of 7 years and 6 months.  The appellant was made eligible for parole.  This is an application for leave to appeal against sentence.  It has been dealt with on the papers.

Background

2The appellant was charged on indictment with seven drug offences. At the same time, the appellant pleaded guilty to a series of drug and traffic offences listed in two notices under s 32 of the Sentencing Act 1995 (WA). Those offences, and their eventual dispositions, are set out in the Schedule to these reasons.

3In relation to the drug offences the total of the illicit substances was 3201 MDMA pills, 58.75 g of methylamphetamine and 84 g of cannabis.  There were some counts in which the quantity of drugs involved was not specified.

4The sentencing judge sentenced the appellant to 4 years' imprisonment on one of the counts in the indictment (selling MDMA) and 3 years and 6 months' imprisonment (cumulative) on another count (attempting to obtain MDMA with intent to sell or supply). He ordered that the terms for all other counts in the indictment and in the s 32 notices be served concurrently. The total effective sentence was, therefore, imprisonment for 7 years and 6 months. The appellant was made eligible for parole.

Grounds of appeal

5The grounds of appeal are as follows:

1.The learned sentencing Judge erred when he determined the 'one transaction rule' did not apply where an offender was in possession of different kinds of drugs (t-s 28D);

Particulars

a)the 'one transaction rule' ('the rule') was a relevant matter for His Honour to consider;

b)His Honour did not properly consider the application of the rule;

c)the rule should have been applied by His Honour in determining the Appellant's criminality.

2.The learned sentencing Judge erred in imposing a total effective sentence which infringed the principle of totality, having regard to the overall criminality involved in the various offences viewed in their entirety and all the circumstances of the case including those referable to the Appellant personally.

Ground 1

6The appellant dealt or attempted to deal in drugs at various times over a three month period.  At least four different types of drugs were involved: MDMA, cannabis, methylamphetamine and ecstasy.  The sentencing judge said:

And in my view, you ought to be sentenced in a classification, as best one can, as a user-dealer in at least the midrange having regard to the quantities of drugs that were the subject of these charges in a relatively short period of time.

Where a person is found in possession - or available possession of different kinds of drugs, it doesn't mean that the one transaction rule applies, because there's a separate occasion of potential harm to the community.  (ts 28)

7This passage was referred to by counsel in the written submissions filed on behalf of the appellant.  But counsel has not referred to the following passages that follow immediately after the portion set out above:

… My task, because there are a number of charges, is, firstly, to impose a sentence with respect to each of the seven charges in the indictment and each of the 18 charges, 15 of which are drug related and three are driving offences.  So that's the first task.  So I need to sentence you individually with respect to each of those sentences - offences.

And then I have to consider what's called accumulation or concurrency; that is, whether I add them together or any of them together or they are to be served or partially served at the same time, because if you add them all up, they will be a crushing sentence.  So I need to consider that.

And finally, I have to have a last look on what's called totality.  And totality is to impose an overall sentence for the lot that is not crushing and is reflective of your level of criminality.  (ts 28 ‑ 29)

8In Royer v The State of Western Australia [2009] WASCA 139 [19] - [31] I set out my understanding of the true nature of the 'one transaction' principle. I adopt, without repeating, what I said on that occasion.

9The gravamen of the appellant's complaint is that the sentencing judge erred in determining that the one transaction rule could not apply in these circumstances.  In my view that is a misreading of what his Honour said.  He said that 'it [did not] mean' that the rule applies.  Properly construed his Honour was not saying that in the instant circumstances the rule did not necessarily apply and he did not propose to apply it in this case.  He was not saying that where a person is in possession of different types of drugs the one transaction principle is automatically excluded.  That is sufficient to dispose of the application for leave on ground 1. 

10For sake of completeness, I should deal with the argument as if the true nature of the appellant's complaint is that the failure by the sentencing judge to make some or most or all of the terms for the drug offences concurrent because of the one transaction principle resulted in an erroneous exercise of the sentencing discretion.  I would still refuse leave.  Apart from the general principles distilled in Royer, such an argument is contrary to what was said in Sinagra-Brisca v The Queen [2004] WASCA 68 [27] - [30] (Wheeler J); Dao v The State of Western Australia [2007] WASCA 237 [18] (Miller JA); and Trang v The State of Western Australia [2010] WASCA 44 [18] (Owen & Wheeler JJA). This is not to say that drug offences committed on different days could never be described as arising from a closely related series of occurrences or one of the other phrases used to explain the principle. But here there were different drug deals involving different types of drugs committed on (on a rough count) at least 17 different days over a three month period. In those circumstances, to say that the sentencing judge should have applied the one transaction principle is simply untenable.

11When the passage from the sentencing remarks is viewed in its entirety his Honour's approach is conventional.  Sentences that should, on a strict view, be accumulated can be made concurrent either as an application of the one transaction principle or because of totality considerations.  In this case, his Honour decided to focus his attention on the latter.  He was not in error in doing so.  Whether the end result is a proper application of the totality principle is, of course, a separate question.  It is the issue that arises under ground 2.

12Leave to appeal on ground 1 is refused.

Ground 2

13Ground 2 is reasonably arguable and I would grant leave in that respect.

Conclusion

14As a provisional determination (see Supreme Court (Court of Appeal) Rules 2005 (WA) r 19):

(a)leave to appeal on ground 1 is refused; and

(b)leave to appeal on ground 2 is granted.  

THE SCHEDULE

CHARGES IN THE INDICTMENT

Count	Date	Offence	Description	Sentence	Concurrency/ Accumulation
1	6 June 2008	Offered to sell a prohibited drug to another	Appellant offered to sell 50 MDMA pills to another	1 year	Concurrent with count 5 and count 7
2	13 June 2008	Offered to sell a prohibited drug to another	Appellant offered to sell 56 grams of methylamphetamine to another	3 years	Concurrent with count 5 and count 7
3	14 June 2008	Sold a prohibited drug to another	Appellant (with an associate) sold 421 white MDMA tablets (121 grams) and fragments to another	4 years	Concurrent with count 5 and count 7
4	15 June 2008	Offered to sell a prohibited drug to another	Appellant offered to sell 50 MDMA pills to another	1 year	Concurrent with count 5 and count 7
5	25 June 2008	Sold a prohibited drug to another	Appellant (with an associate) sold 585 white and green MDMA tablets (175.8 grams) to another	4 years
6	18 July 2008	Offered to sell a prohibited drug to another	Appellant offered to sell 50 MDMA pills to another	1 year	Concurrent with count 5 and count 7

7 Between 21 July 2008 and 14 August 2008 Attempted to obtain a prohibited drug with intent to sell or supply it to another Appellant (with an associate) attempted to obtain 2000 MDMA pills with intent to sell or supply it to another 3 years and 6 months Cumulative on count 5

CHARGES IN THE FIRST SECTION 32 NOTICE

Count	Date	Offence	Description	Sentence	Concurrency/ Accumulation
1	22 July 2008	Possession of a prohibited drug with intent to sell or supply	During a search of the appellant’s house, the police located a clipseal bag containing 3.5 grams of a white powder.  Appellant admitted to possession and that it was either MDMA powder or ecstasy.	12 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment.
2	17 May 2008	Offered to sell or supply a prohibited drug to another	Appellant offered to sell or supply 1.75 grams of methylamphetamine to another	6 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment.
3	19 May 2008	Offered to sell or supply a prohibited drug to another	Appellant offered to sell or supply 1/2 ounce of cannabis to another	12 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment.

4	21 May 2008	Offered to sell or supply a prohibited drug to another	Appellant offered to sell or supply 14 grams of cannabis to another	12 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment.
5	23 May 2008	Supplied a prohibited drug to another	Appellant supplied cocaine to another	12 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment.
6	27 May 2008	Sold a prohibited drug to another	Appellant sold methylamphetamine to another	12 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment.
7	28 May 2008	Offered to sell or supply a prohibited drug to another	Appellant offered to sell or supply 1 ounce of hydroponic cannabis to another	6 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment.
8	6 June 2008	Offered to sell or supply a prohibited drug to another	Appellant offered to sell or supply 5 MDMA pills to another	6 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment.
9	7 June 2008	Offered to sell or supply a prohibited drug to another	Appellant offered to sell or supply 10 MDMA pills to another	6 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment.
10	12 June 2008	Supplied a prohibited drug to another	Appellant supplied 1 gram of methylamphetamine and several MDMA pills to another	6 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment.

11	13 June 2008	Offered to sell or supply a prohibited drug to another	Appellant offered to sell or supply 11 MDMA pills to another	6 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment.
12	1 July 2008	Offered to sell or supply a prohibited drug to another	Appellant offered to sell or supply 5 MDMA pills to another	6 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment.
13	10 July 2008	Offered to sell or supply a prohibited drug to another	Appellant offered to sell or supply 10 MDMA pills to another	6 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment.
14	12 July 2008	Offered to sell or supply a prohibited drug to another	Appellant offered to sell or supply 4 MDMA pills to another	6 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment.
15	22 July 2008	Offered to sell or supply a prohibited drug to another	Appellant obtained 1 ounce of cannabis from a person and then offered to sell or supply it to a third party at a profit	6 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment.

CHARGES IN THE SECOND SECTION 32 NOTICE

Count	Date	Offence	Description	Sentence	Concurrency/ Accumulation
1	12 June 2008	Driving a motor vehicle without a valid driver’s licence	Appellant drove a motor vehicle while subject to a demerit point suspension	3 months, $1,000 fine	Concurrent with all s 32 counts. Concurrent with all counts in the indictment.

2	16 June 2008	Driving a motor vehicle without a valid driver’s licence	Appellant drove a motor vehicle while subject to a demerit point suspension	3 months, $1,000 fine	Concurrent with all s 32 counts. Concurrent with all counts in the indictment.
3	17 June 2008	Driving a motor vehicle without a valid driver’s licence	Appellant drove a motor vehicle while subject to a demerit point suspension	3 months, $1,000 fine	Concurrent with all s 32 counts. Concurrent with all counts in the indictment.