Sakhie v The State of Western Australia

[2017] WASCA 103

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SAKHIE -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 103

CORAM:   MAZZA JA

HALL J

HEARD:   1 JUNE 2017

DELIVERED          :   1 JUNE 2017

PUBLISHED           :  1 JUNE 2017

FILE NO/S:   CACR 159 of 2016

BETWEEN:   ANDALEEP SAKHIE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :BIRMINGHAM DCJ

File No  :IND 1770 of 2015

Catchwords:

Criminal law - Application for leave to appeal against sentence - Possession of methylamphetamine with intent to sell or supply - Possession of cocaine with intent to sell or supply - Possession of modified handgun without a licence - Aggregate sentence of 5 years' imprisonment - Whether individual sentences manifestly excessive - Whether total effective sentence infringed the totality principle - Whether proposed additional evidence admissible

Legislation:

Nil

Result:

Extension of time granted
Leave to adduce additional evidence refused
Leave to appeal refused on all grounds
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (WA)

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

Colwell v The State of Western Australia [No 2] [2012] WASCA 196

JM v The State of Western Australia [2015] WASCA 40

Karakuyu v The State of Western Australia [2012] WASCA 75

Miles v The State of Western Australia [2016] WASCA 138

Ozan v The State of Western Australia [2013] WASCA 27

Pitassi v The State of Western Australia [2014] WASCA 231

Rodi v The State of Western Australia [2017] WASCA 81

Stagno v The State of Western Australia [2013] WASCA 166

Stone v The State of Western Australia [2010] WASCA 80

The State of Western Australia v Hyder [2011] WASCA 256

Tran v The State of Western Australia [2016] WASCA 37

Wheeler v The Queen [No 2] [2010] WASCA 105

1. REASONS OF THE COURT: On 6 September 2016, the appellant was sentenced, following his pleas of guilty, on an indictment containing three counts, to a total effective sentence of 5 years' imprisonment. That sentence comprised 12 months' imprisonment for an offence of being in possession of a modified handgun without being the holder of a licence or permit, contrary to s 19(1)(c) and s 19(1)(ac) of the Firearms Act 1973 (WA), 2 years' imprisonment for an offence of being in possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) and 2 years' imprisonment for a further offence of being in possession of a prohibited drug, namely cocaine, with intent to sell or supply it to another. Each of those sentences was ordered to be served cumulatively, thus producing the total effective sentence of 5 years' imprisonment.

2. The appellant has applied for leave to appeal against his sentence.  The appeal notice was filed approximately three weeks out of time and the appellant requires an extension.  He has filed an affidavit explaining the reasons for the delay.  In short, he is unrepresented and made an effort to file an appeal notice, but failed to complete it correctly.  He was unsure what to do and then contacted his former lawyer, who agreed to help him complete the necessary documents, notwithstanding that legal aid had not been granted.  The delay is relatively short and has been adequately explained.  In these circumstances, an extension of time should be granted.

3. There are three proposed grounds of appeal.  They have been drafted by the appellant and are not in conventional form.  In essence they assert that the individual sentences were manifestly excessive and that the aggregate sentence infringed the totality principle.  The appellant has also claimed in his written submissions that he committed the offences because he was assaulted and that threats were made to kill him and his family.  An order was made requiring the appellant to file any affidavit in support of the allegation that he committed the offences under duress by 21 April 2017.  He filed an affidavit in purported compliance with this order on 13 April 2017 and subsequently made an oral application to adduce this additional evidence on the appeal.  That application has been referred to the hearing of the appeal.  That application will be dealt with later in these reasons.

The facts

1. The admitted facts are as follows. 

2. Shortly after midnight on 29 March 2015, the appellant was observed riding a motorcycle on Connolly Drive in Currambine.  He was called upon to stop by police, but he sped away.  There was a short police vehicle chase which ended with the appellant abandoning his motorcycle and fleeing on foot.  Police officers followed and apprehended the appellant.

3. The appellant was told to get down, but kept his hands concealed near his pants.  He then turned to some nearby open bushland and threw an object over a fence.  Police officers recovered the item which was found to be a black Bruni model P4 8 mm handgun.  The serial numbers had been removed from the gun and it had been modified so that a silencer could be fitted to the barrel. 

4. Later that morning at about 5.00 am, police executed a search warrant at the appellant's home in Banksia Grove.  In his bedroom they located 13 g of methylamphetamine hidden in the frame of the bed.  They also found 23 g of cocaine between the mattress and the base of the bed.  The methylamphetamine was of 70% purity and the cocaine was of 52% purity.  The estimated value of the methylamphetamine, if sold in points of a gram, was $13,500.  The cocaine was estimated to have a similar value.  A flick knife was also found, though this was the subject of a summary charge that was separately dealt with. 

5. The appellant was interviewed by police and made some admissions.  He was charged with the present offences.  He initially entered pleas of not guilty and the matter was listed for trial in the District Court.  He entered pleas of guilty to the charges approximately nine weeks prior to the date of the trial.

Personal circumstances

1. The appellant was 22 years of age at the time of the offence and 23 when he was sentenced.  He was born in Afghanistan.  He left Afghanistan with his family when aged 1, after members of his family were killed in a conflict in that country.  He then lived with his family in Pakistan for nine years before emigrating to Australia when his family was sponsored by an aunt who was already residing here.

2. When the appellant came to Australia he spoke little English and this caused difficulties with his high school education.  He went to several high schools before finishing year 12 and has done no other study since.  He has worked as a trainee bricklayer, but has not yet been certified.

3. The appellant's parents separated when he was 14 or 15 years of age.  It was not an amicable separation and initially the appellant and his siblings lived with their mother.  Subsequently, the appellant moved in with his father, who had substance abuse and mental health problems.

4. The appellant started using cannabis when he was in year 9 or 10 at high school.  When his mother learnt of this she sent him to Canada to live with relatives in order to get him away from negative peer influences.  However, on his return to Australia he resumed contact with the same peers.  He began using methylamphetamine when he was about 16 or 17 years old.  He soon became addicted and began selling drugs to support his habit.  He claimed that he would buy drugs on credit and, at the time of his arrest, had a $15,000 debt. 

5. After his arrest the appellant spent approximately 3 months in custody before being granted bail.  After being released on bail his drug use continued at a reduced level for some time, but he claimed that shortly prior to his pleas of guilty he had ceased using methylamphetamine.  It was said on his behalf that he had good prospects of rehabilitation because he was no longer using methylamphetamine, had distanced himself from negative peer influences and had the support of his family. 

The sentencing remarks

1. The sentencing judge accepted the State's submission that the appellant was a mid‑level dealer.  His Honour said that it was quite apparent that at the time of the offending the appellant was significantly involved in the sale and supply of drugs (ts 29).  His Honour noted that the drugs were of high purity and high value and that this was indicative of the level of the appellant's involvement (ts 30).

2. In regard to the firearms offence, it was submitted on behalf of the appellant that the gun was intended for protection. His Honour noted that this claim was inconsistent with the fact that the appellant was found in possession of the gun when riding his motorcycle late at night on the way to visit a friend.  He was not in possession of drugs or money at the time.  This was also not the first occasion that the appellant had been found in possession of weapons.  In addition to the flick knife found at his home, the appellant also had two previous convictions relating to the possession of weapons, a machete in 2012 and a flick knife in 2013.

3. His Honour referred to the need for the sentences imposed to reflect personal and general deterrence.  These were factors of importance both to the drug offences and the firearms offence.  His Honour said that those who deal in illicit drugs are frequently found in possession of firearms and they are 'one of the frequently seen tools of the drug trade' (ts 35).  He said that personal factors were relevant, but could not be afforded great weight given the significance of deterrence.  Nonetheless, he did accept that the appellant's relative youth was a relevant factor and justified a lower sentence than would otherwise be indicated.

4. In regard to the pleas of guilty, his Honour accepted that those pleas were indicative of an acceptance of responsibility and a willingness to facilitate the course of justice. However, the pleas were only entered after the matter had been listed for trial. In these circumstances, his Honour reduced the sentence he would otherwise have imposed in respect of each offence by 10% in order to recognise the benefits to the State resulting from the pleas: s 9AA of the Sentencing Act 1995 (WA).

5. His Honour reduced the sentences he considered appropriate for each of the offences for totality reasons.  This resulted in a reduction of the aggregate sentence from 6 years' imprisonment to 5 years.  That sentence was backdated to commence on 7 June 2016 to take into account time spent in custody.  An order for eligibility for parole was made.

Application to adduce additional evidence

1. The principles relating to the power conferred on this court by s 40(1)(e) of the Criminal Appeals Act 2994 (WA) to admit 'any other evidence' for the purposes of dealing with an appeal are set out by Buss P in Rodi v The State of Western Australia [2017] WASCA 81 [88] ‑ [105]. In an appeal against sentence, fresh or new evidence may be relevant if it establishes that a different sentence should have been imposed: Wheeler v The Queen [No 2] [2010] WASCA 105 and The State of Western Australia v Hyder [2011] WASCA 256. However, an appeal is not an opportunity to seek new material with a view to retrying the issues on a different basis. The general rule is that an appeal court must decide an appeal on the evidence and material before the court below: Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [28] ‑ [30].

2. Evidence of duress, falling short of the defence in s 32 of the Criminal Code, may be relevant to sentence.  In such a case, the onus is on the appellant to prove, on the balance of probabilities, that he committed the offences as a result of pressure placed on him by others:  Ozan v The State of Western Australia [2013] WASCA 27 [48]. Before additional evidence can be considered it must be admissible. A mere assertion that the appellant has been assaulted or threatened, without reference to any specific incident, is not admissible.

3. The affidavit filed by the appellant does not contain admissible evidence.  He refers to injuries to various parts of his body which he says were as a result of not complying with 'their wishes'.  He refers to an unspecified occasion when he was assaulted and threatened for wanting to work in a legitimate occupation.  These are mere assertions.  There are no details as to the place, time or number of assaults.  The person or persons alleged to have assaulted the appellant or made threats are not identified.

4. It is also important to note that the appellant's recent claims of duress are inconsistent with the submissions made on his behalf at the sentencing hearing.  At that hearing defence counsel said the appellant began carrying a weapon when he became involved in regular drug dealing and that he carried the weapon, not because he in fact had a need for protection, but that he had a perception of such a need (ts 20).  Counsel accepted that this was not a mitigatory factor (ts 21) and that his possession of the gun and the flick knife were a product of his 'muddled thought processes' (ts 24).  Counsel suggested that the appellant had adopted a mentality of wanting to be a 'gangster' (ts 18).

5. The application to adduce additional evidence should be refused.

The merits of this appeal

1. The relevant legal principles for dealing with an appeal of this nature are well settled.  An appellate court can intervene only if the appellant establishes a material error, either express or implied, by the sentencing judge.  It cannot intervene merely because it might exercise the sentencing discretion differently.

2. A sentence is manifestly excessive if it unreasonable or plainly unjust.  To determine whether a sentence is manifestly excessive it is necessary to view it in the perspective of the maximum penalty prescribed by law for the offence, the standard of sentences customarily observed with respect to that offence, the place the criminal conduct occupies in the scale of seriousness of offences of the type and the personal circumstances of the offender.

3. The first limb of the totality principle requires a judge who is sentencing an offender for multiple offences to ensure that the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.

4. The maximum penalty for count 1, an offence of being in possession of a modified handgun whilst not being the holder of a licence or permit, contrary to s 19(1)(c) and s 19(1)(ac) of the Firearms Act is 7 years' imprisonment.  The maximum penalty for each of counts 2 and 3, offences of being in possession of a prohibited drug with intent to sell or supply it to another, is 25 years' imprisonment and a fine of $100,000 or both.

5. The major sentencing considerations for drug offences of the kind committed by the appellant are general and personal deterrence.  Although the weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing the sentence, it is a matter of importance.  Other matters that are relevant include the nature and level of the offender's participation in drug dealing and whether the offending was committed for commercial gain.  The purity of the drug is often regarded as a significant factor.  Matters personal to the offender are not irrelevant, but will almost always be given reduced weight.  These principles are well known:  see Tran v The State of Western Australia [2016] WASCA 37 [29].

6. The offence of possessing an unlicensed firearm in circumstances of aggravation, contrary to s 19(1) and 19(1)(ac) of the Firearms Act is also one where general deterrence is a major sentencing consideration and personal circumstances play a lesser role:  Stone v The State of Western Australia [2010] WASCA 80. The significance of the possession of firearms by an offender who is also involved in drug dealing was referred to in Karakuyu v The State of Western Australia [2012] WASCA 75. That case concerned an offender who pleaded guilty to a number of drug offences and a single charge of unlicensed possession of a handgun. Mazza JA observed:

   The firearms offence was serious. The weapon was capable of use and the appellant was not licensed to possess it. The serial number on it had been defaced so its provenance could not be easily traced. Its possession was plainly intended for self-protection or as a threat to others. It is the experience of the courts that firearms are a common tool of the trade for drug dealers. It is not unknown for such weapons to be used when disputes with respect to drugs arise. There is a clear need to deter those involved in the drug trade from obtaining and possessing firearms [41].

7. Where a firearms charge is alleged in addition to a drug offence it often attracts a cumulative penalty:  Stagno v The State of Western Australia [2013] WASCA 166 [45]. See also Miles v The State of Western Australia [2016] WASCA 138.

8. As to the seriousness of the appellant's offending, it is important to recognise the context in which the offences occurred.  It was admitted on the appellant's behalf that, though he was also a user of drugs, he had been dealing for some time.  The fact that the appellant, on his own admission, had run up a $15,000 drug debt is indicative of his level of involvement.  It was also accepted that the weapons were used in the context of drug dealing.  The rationalisation that the handgun was required for protection is one that is often advanced by offenders in these circumstances.  There are dangers inherent in drug dealing, but the carrying of weapons in this context increases the possibility of serious violence as they can be used to threaten or coerce.  The firearms offence was also made more serious by the fact that the handgun had been modified, not only to remove its serial number, but to enable the fitting of a silencer. 

9. There was very little by way of mitigation in the appellant's personal circumstances.  He had previous convictions for possessing controlled or prohibited weapons.  He entered his pleas of guilty at a relatively late stage and the reduced discount of 10% reflected this.  The sentencing judge took into account the appellant's relative youth, the fact that he was himself a drug user, the efforts he was making and intended to make towards his rehabilitation and the fact that he had the support of his family.  However, none of these factors were exceptional and none of them could justify the imposition of sentences other than immediate imprisonment, as recognised at the time of sentencing by the appellant's experienced counsel.

10. As regards comparable cases, Tran v The State of Western Australia [2016] WASCA 37 and JM v The State of Western Australia [2015] WASCA 40 both involved possession of similar quantities of methylamphetamine. Pitassi v The State of Western Australia [2014] WASCA 231 involved possession of 104 g of mixed methylamphetamine and cocaine with 2% ‑ 4% purity and counts of aggravated possession of a firearm and possession of ammunition and resulted in a total effective sentence of 4 years' imprisonment. Karakuyu involved two counts of possessing methylamphetamine and also an offence of being in possession of an unlicensed firearm and resulted in a total effective sentence of 6 years and 3 months' imprisonment.  There are numerous other cases dealing with drug and firearms offences of these types.  The appellant has not suggested that there are any cases which are inconsistent with the sentences imposed in this case.  Indeed, in our view, it is apparent that the sentences imposed were within the range of appropriate sentencing discretion. 

1. As regards totality, the total effective sentence was an appropriate reflection of the appellant's overall criminality.  The aggregate sentence was not disproportionate and did not infringe the totality principle.

2. Having regard to all relevant considerations, it cannot be said that either any of the individual sentences or the aggregate sentence was plainly unjust or unreasonable.  The proposed grounds have no reasonable prospect of succeeding.  Accordingly, the appeal must be dismissed.

Orders

1.Extension of time is granted.

2.Application to adduce additional evidence is refused.

3.Leave to appeal is refused on all grounds.

4The appeal is dismissed.