Russell v The State of Western Australia [No 2]

[2010] WASCA 159

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   RUSSELL -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2010] WASCA 159

CORAM:   OWEN JA

BUSS JA
MAZZA J

HEARD:   23 JUNE 2010

DELIVERED          :   4 AUGUST 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 - Sentencing - Multiple drug offences - Dealing in MDMA, methylamphetamine and cannabis - Whether effective term of 7 years and 6 months' imprisonment offended totality principle - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed
Appellant resentenced

Category:    B

Representation:

Counsel:

Appellant:     Mr S B Watters

Respondent:     Mr J McGrath

Solicitors:

Appellant:     Michael Tudori & Associates

Respondent:     Director of Public Prosecutions (WA)

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

Atholwood v The Queen [2000] WASCA 76; (2000) 110 A Crim R 417

Colangelo v The State of Western Australia [2004] WASCA 294

Samuels v The State of Western Australia (No 2) [2006] WASCA 222

1OWEN JA:  On 6 November 2009 the appellant pleaded guilty in the District Court to multiple drug offences of varying kinds and some traffic offences.  He was sentenced to immediate imprisonment for a total of 7 years and 6 months.  The appellant was granted leave to appeal on the ground that the sentence infringed the totality principle. 

Background

2The appellant is a 35‑year‑old man. He was charged on indictment with seven drug offences. He was also dealt with for a further 15 drug offences and three traffic offences that were listed in two notices issued under s 32 of the Sentencing Act 1995 (WA). Details of all offences and the sentences that were imposed for the individual counts and charges are set out in the Schedule to these reasons. The total sentence was immediate imprisonment for 7 years and 6 months with eligibility for parole.

3With respect to counts 1 to 6 on the indictment, the 15 drug charges in the first s 32 notice and the three traffic offences in the second s 32 notice, there is nothing that can usefully be added to the short description of the offences that is set out in the Schedule.

4In relation to count 7 on the indictment, on 8 July 2008 the appellant was contacted by a third party who wanted to purchase a large quantity of MDMA pills.  On 21 July 2008 the third party visited the appellant at his place of employment and the appellant offered to sell pills to this person.  The quantity involved was 1000 pills but in subsequent discussions it was increased to 2000.  The appellant then contacted his co‑offender who agreed to source the pills at $21 each.  On 14 August 2008 police executed a search warrant at the home address of the appellant and his co‑offender.  There was no further contact with the third party.  On the advice of counsel the appellant and the co‑offender declined to participate in an electronic record of interview concerning the matter.  However, the appellant entered a fast track plea of guilty.

5In 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.

Sentencing remarks and ground of appeal

6The sole ground of appeal is that the 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.  The appellant does not challenge any of the individual terms imposed and he relies on the first limb of the totality principle; namely, that the overall sentence does not bear a proper relationship to the level of criminality involved.  He does not contend that the sentence is 'crushing' in the relevant sense.  Nor does the appellant argue that the sentencing judge made any express error.  The challenge therefore proceeds on the basis of inferred error.  That being so, it is not necessary to analyse the sentencing remarks in any great detail. 

7The sentencing judge acknowledged the appellant's guilty plea and his medical conditions (which I will mention later).  He noted that the appellant was 35 years of age, that his family background was unremarkable and that he had good references and a good work history, although his medical problems were a limiting factor.  The appellant's explanation for the offending was that he became involved in drug dealing to fund an addiction to ecstasy.  This addiction had come about because he was using the substance for pain relief.  However, the sentencing judge found (largely because of the quantity of drugs involved) that there was a profit motive in the endeavour and classified the appellant as a user-dealer in at least the mid‑range.  His Honour indicated that personal and general deterrence were the primary sentencing considerations.  He was aware of the issue of totality and used a combination of accumulation and concurrency to arrive at the total effective sentence of 7 years and 6 months.

Disposition of the appeal

8The extent of the appellant's involvement in drug dealing cannot be dismissed as trivial.  It involved a variety of illicit substances and the quantities were significant.  On the other hand, the offending conduct occurred over a reasonably compressed time frame (two months or thereabouts) and they did not involve particularly large sums of money.  The facts, as described in the sentencing materials, do not contain elements that aggravate or increase the level of seriousness beyond that inherent in drug dealing of any nature.  

9The appellant told both the author of the pre‑sentence report and the psychiatrist that he  had commenced buying and selling amphetamines to fund his own addiction to ecstasy.  He said that after becoming immune to the effects of conventional painkillers for his pain he turned to illicit substances for relief.  He denied making a financial gain from his activities other than to afford a continuous supply to himself by this means.  It is true that the sentencing judge made a finding that there was a profit motive.  But even if (due largely to the quantities involved) the appellant should properly be classified as a mid-level dealer, it remains the fact that he was also a user and was not selling drugs solely for commercial profit. 

10It is a well‑established principle that in cases such as this, personal and general deterrence are major sentencing considerations and that personal circumstances are of less impact.  However, the latter are not irrelevant.  At 35 years of age the appellant cannot claim youth as a mitigating factor.  But he has suffered significant medical disabilities since birth.  They include chronic asthma (necessitating the administration of oral and intravenous steroids to prevent attacks becoming life threatening), severe lower back pain following a spinal fusion at 18 years of age, eczema, and obesity.  A psychiatrist noted that the appellant suffered from low self esteem and depression.  The psychiatrist opined that the depression aggravated the constant back pain, causing the appellant to feel demoralised and hopeless about his future.  It should be noted that these physical and mental issues are long standing and there is no suggestion that they were caused or contributed to by substance abuse.

11The author of the pre‑sentence report opined that the appellant showed an understanding of the consequences of his actions and the ramifications that illicit drugs bring to the community.  The psychiatrist said that the appellant seemed remorseful for his actions and that he knew that what he had done was wrong.  A report from Cyrenian House confirmed that in the period while he was on bail the appellant had undergone an out‑patient programme to help deal with his addiction to ecstasy.  He had willingly and enthusiastically participated in 19 sessions and had developed greater cognisance with regard to his drug use triggers and the consequences of his actions.  These materials, when combined with the fast track plea of guilty, support the view that the appellant is genuinely remorseful and that he has accepted responsibility.  They also suggest that his prospects for rehabilitation are reasonably good.

12The appellant's prior criminal record is not significant.  He has committed a number of offences, going back to 1991.  With one exception, his prior record consists entirely of traffic offences.  The exception is a conviction for possessing cannabis in July 2008, for which a fine was imposed.  This is the first time the appellant has been sentenced to a term of imprisonment.

13Because of the peculiar circumstances of this case, resort to previous decisions of this Court will be of limited utility.  However the following cases, all of which have some factual elements similar to those in the present case, suggest that the sentence imposed on the appellant may well be out of kilter when assessed against the level of criminality involved in the offending conduct.

•Colangelo v The State of Western Australia [2004] WASCA 294 (6 years imprisonment after a plea of guilty that was not fast track).

•Atholwood v The Queen [2000] WASCA 76; (2000) 110 A Crim R 417 (7 years imprisonment after a trial).

•Samuels v The State of Western Australia (No 2) [2006] WASCA 222 (6 years imprisonment after a trial).

14These cases are seldom easy.  Drug dealing always has been, and remains, a scourge on society.  The appellant's offending conduct was serious.  But he did plead guilty on the fast track system, he has accepted responsibility and was not motivated solely by commercial motives.  On balance I have come to the view that there is merit in the appellant's contention that the total sentence of 7 years and 6 months  does not bear a proper relationship to the level of criminality involved in the offences.  The first limb of the totality principle has been infringed.

Conclusion

15I would allow the appeal and set aside the sentence imposed by the sentencing judge.  I would resentence the appellant:

(a)by imposing exactly the same sentence as that imposed by the sentencing judge for each of the counts on the indictment (other than count 7) and for each of the charges in the s 32 notices and by making identical orders for accumulation and concurrency; and

(b)in relation to count 7 on the indictment, impose a sentence of 2 years' immediate imprisonment to be served cumulatively on the term for count 5 on the indictment.

16I should make it clear that the reduction in the term for count 7 from 3 years and 6 months  to 2 years is done solely for reasons of totality and should not be regarded as the sentence that would or should have been imposed had that count been taken in isolation.  The total effective sentence is, therefore, immediate imprisonment for 6 years, backdated to

11 September 2009.  The appellant will be eligible for parole at the expiration of 4 years from 11 September 2009.

17BUSS JA:  I agree with Owen JA.

18MAZZA J:  I agree with Owen JA.

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 g 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 g, purity 37%) and fragments to another. Each tablet was sold for $24	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.  The offer price was $25 per pill	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 g, purity 36% or 37%) 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

Charge	Date	Offence	Description	Sentence	Currency/ Accumulation
1	17 May 2008	Offered to sell or supply a prohibited drug to another	Appellant was asked to supply 1.75 g of methylamphetamine to another.  He said he would do so the following day	6 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment
2	19 May 2008	Offered to sell or supply a prohibited drug to another	Appellant was asked to  supply 1/2 ounce of cannabis to another.  He said he would do so, for $150 and he was paid that amount	12 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment
3	21 May 2008	Offered to sell or supply a prohibited drug to another	Appellant was asked to supply 14 g of cannabis to another for $4500.  The appellant agreed but said he would have to find someone who would give him the drugs on credit	12 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment
4	23 May 2008	Supplied a prohibited drug to another	Appellant was contacted by a person who said he (or she) had sold all the cocaine the appellant had supplied to him (or her) and that he (or she) was now able to pay	12 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment

5	27 May 2008	Sold a prohibited drug to another	Appellant sold an unknown quantity of methylamphetamine to another.  The buyer complained about the quality and the appellant said he had to sell it at a loss	12 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment
6	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 for $300	6 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment
7	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
8	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
9	12 June 2008	Supplied a prohibited drug to another	Appellant supplied 1 g of methylamphetamine and several MDMA pills to another.  The buyer later confirmed the drugs were 'all right' and that he wanted some more	6 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment
10	13 June 2008	Offered to sell or supply a prohibited drug to another	Appellant offered to sell or supply 11 MDMA pills to another for $25 each	6 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment

11	1 July 2008	Offered to sell or supply a prohibited drug to another	Appellant was asked to supply 5 MDMA pills to another for $25 each.  The buyer later contacted him to say he had on‑sold them for $35 each	6 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment
12	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
13	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
14	22 July 2008	Offered to sell or supply a prohibited drug to another	Appellant obtained 1 ounce of cannabis from a person for $300 and then offered to sell it to a third party for $350	6 months	Concurrent with all s 32 counts. Concurrent with all counts in the indictment
15	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 clip seal bag containing 3.5 g 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

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 from 3 April 2008 with a revocation expiry of 3 July 2008	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