Searle v The State of Western Australia
[2023] WASCA 129
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SEARLE -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 129
CORAM: BEECH JA
HALL JA
LUNDBERG J
HEARD: 17 AUGUST 2023
DELIVERED : 30 AUGUST 2023
FILE NO/S: CACR 108 of 2022
BETWEEN: LEIGH ASHTON SEARLE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: HERRON DCJ
File Number : IND 136 of 2021 & IND 1013 of 2022
Catchwords:
Criminal law and sentencing - Where appellant convicted, on his plea of guilty, of 34 drug offences involving methylamphetamine and cannabis and four other offences - Where appellant sentenced to total effective sentence of 8 years' imprisonment - Whether appellant's sentence infringed first limb of totality principle
Legislation:
Nil
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | S Auburn |
| Respondent | : | T B L Scutt |
Solicitors:
| Appellant | : | Sharon Auburn Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
ATH v The State of Western Australia [2021] WASCA 149
Baker v The State of Western Australia [2020] WASCA 117
Cochrane v The State of Western Australia [2021] WASCA 5
Curry v The State of Western Australia [2022] WASCA 36
Gaskell v The State of Western Australia [2018] WASCA 8
GUE v The State of Western Australia [2022] WASCA 121
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Kabambi v The State of Western Australia [2019] WASCA 44
Le v The State of Western Australia [2022] WASCA 163
Moodley v The State of Western Australia [2020] WASCA 158
Pedrochi v Brown [2021] WASCA 81
Pennetta v The State of Western Australia [2013] WASCA 234
R v Pham [2015] HCA 39; (2015) 256 CLR 550
Roffey v The State of Western Australia [2007] WASCA 246
Tirkot v The State of Western Australia [2018] WASCA 41
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
JUDGMENT OF THE COURT:
Introduction
The appellant pleaded guilty to the following offences, charged on two indictments:
(1)seven counts of offering to sell or supply cannabis, contrary to s 6(1)(c) and s 34(2)(a) of the Misuse of Drugs Act 1981 (WA);
(2)25 counts of offering to sell or supply methylamphetamine, contrary to s 6(1)(c) and s 34(1)(aa) of the Misuse of Drugs Act;
(3)one count of offering to sell or supply a trafficable quantity of methylamphetamine, contrary to s 6(1)(c) and s 34(1)(a) of the Misuse of Drugs Act;
(4)one count of possessing, with intent to sell or supply, a trafficable quantity of methylamphetamine, contrary to s 6(1)(c) and s 34(1)(a) of the Misuse of Drugs Act;
(5)one count of obstructing a police officer, contrary to s 172 of the Criminal Code (WA); and
(6)three counts of using identification material with the intention to commit an indictable offence, namely fraud, contrary to s 490 of the Criminal Code.
The 33 drug charges in (1) - (3), which were the subject of the first indictment (IND 136 of 2021), were committed from July to December 2019 in the course of a small-scale drug-dealing business. The remaining charges, which were the subject of IND 1013 of 2022, occurred in February and March 2022.
The appellant now challenges the total effective sentence of 8 years' imprisonment imposed on him following his conviction of these offences.
The appellant advances a single ground of appeal, namely a breach of the first limb of the totality principle.
For the reasons that follow, we are not persuaded that the total effective sentence is so long as to indicate error in the exercise of the sentencing discretion. Consequently, the appeal must be dismissed.
The facts
The following facts, stated by the prosecution and adopted by the judge, are not challenged on appeal.
Facts giving rise to IND 136 of 2021: the 2019 offending
On 4 December 2019, police conducted a traffic stop on a vehicle the appellant was driving on Great Eastern Highway, Rivervale.[1] The appellant was the only person in the car.[2]
[1] ts 70.
[2] ts 70.
During a search of the appellant and the car, police seized two mobile telephones, the contents of which were extracted and revealed communications between the appellant and others via text message and Facebook Messenger.[3] In these communications, the appellant offered to sell or supply prohibited drugs to various people.[4]
[3] ts 70.
[4] ts 70 - 71.
These communications revealed that:
(1)On seven occasions between 7 July 2019 and 30 August 2019, the appellant offered to sell or supply cannabis, in quantities ranging from 7 g ‑ 140 g.[5]
(2)On 25 occasions between 6 July 2019 and 2 December 2019, the appellant offered to sell or supply methylamphetamine, in quantities ranging from 0.1 g ‑ 7 g.[6]
(3)On 25 November 2019, the appellant offered to sell or supply a trafficable quantity, namely 28 g, of methylamphetamine.[7]
[5] ts 71.
[6] ts 71.
[7] ts 71.
The date of the offence and quantity of drug involved in each charge is set out in the table at [16] below.
Facts giving rise to IND 1013 of 2022: the 2022 offending
On 23 February 2022, while driving, the appellant was stopped by police for random breath and drug tests.[8] The appellant tested positive for drugs, and he was told by police to leave the vehicle.[9]
[8] ts 71.
[9] ts 71.
The appellant got out of the vehicle, having told the police there was a glass pipe and a bag containing methylamphetamine in the vehicle.[10] The appellant then ran from the police.[11] Despite chasing the appellant, the police were unable to locate and apprehend him.[12]
[10] ts 71.
[11] ts 71.
[12] ts 71.
Police searched the car, finding a black bag between the car seats containing a total of 43.44 g of methylamphetamine at a purity of 80% ‑ 81%.[13] Police also located $5,540 in cash in the black bag, as well as the appellant's driver's licence.[14]
[13] ts 71.
[14] ts 71.
On 8 March 2022, police arrested the appellant at an address in Belgravia Street, Belmont.[15] During a search of a bedroom at that property, police found a wallet containing three counterfeit driver's licences, each featuring an image of the appellant and false identification details, including false names.[16]
[15] ts 71.
[16] ts 71.
The appellant had used the fake driver's licences to obtain Airbnb accommodation under false identities, which enabled the appellant to avoid police detection during the period up to his arrest.[17]
[17] ts 71.
The charges and the sentences imposed
The sentencing judge imposed the following sentences:
| Count | Offence details | Penalty imposed | Cumulacy/ concurrency |
| IND 136 of 2021 | |||
| 1 | Offer to sell or supply methylamphetamine: s 6(1)(c) and s 34(1)(aa) of the Misuse of Drugs Act Date of offence: 6 July 2019 Quantity of drug: 0.1 g | 6 months' imprisonment | Concurrent |
| 2 | Offer to sell or supply cannabis: s 6(1)(c) and s 34(2)(a) of the Misuse of Drugs Act Date of offence: 7 July 2019 Quantity of drug: 7 g | 1 month's imprisonment | Concurrent |
| 3 | Offer to sell or supply methylamphetamine Date of offence: 7 July 2019 Quantity of drug: 0.1 g | 6 months' imprisonment | Concurrent |
| 4 | Offer to sell or supply methylamphetamine Date of offence: 11 July 2019 Quantity of drug: 0.5 g | 12 months' imprisonment | Concurrent |
| 5 | Offer to sell or supply methylamphetamine Date of offence: 12 July 2019 Quantity of drug: 0.825 g | 12 months' imprisonment | Concurrent |
| 6 | Offer to sell or supply methylamphetamine Date of offence: 17 July 2019 Quantity of drug: 1.75 g | 15 months' imprisonment | Concurrent |
| 7 | Offer to sell or supply cannabis Date of offence: 27 July 2019 Quantity of drug: 7 g | 1 month's imprisonment | Concurrent |
| 8 | Offer to sell or supply methylamphetamine Date of offence: 5 August 2019 Quantity of drug: 0.2 g | 15 months' imprisonment | Concurrent |
| 9 | Offer to sell or supply cannabis Date of offence: 16 August 2019 Quantity of drug: 42 g | 6 months' imprisonment | Concurrent |
| 10 | Offer to sell or supply cannabis Date of offence: 27 August 2019 Quantity of drug: 28 g | 4 months' imprisonment | Concurrent |
| 11 | Offer to sell or supply cannabis Date of offence: 27 August 2019 Quantity of drug: 28 g | 4 months' imprisonment | Concurrent |
| 12 | Offer to sell or supply cannabis Date of offence: 28 August 2019 Quantity of drug: 28 g | 4 months' imprisonment | Concurrent |
| 13 | Offer to sell or supply cannabis Date of offence: 30 August 2019 Quantity of drug: 140 g | 10 months' imprisonment | Concurrent |
| 14 | Offer to sell or supply methylamphetamine Date of offence: 6 September 2019 Quantity of drug: 0.2 g | 6 months' imprisonment | Concurrent |
| 15 | Offer to sell or supply methylamphetamine Date of offence: 7 September 2019 Quantity of drug: 0.5 g | 12 months' imprisonment | Concurrent |
| 16 | Offer to sell or supply methylamphetamine Date of offence: 7 September 2019 Quantity of drug: 0.5 g | 12 months' imprisonment | Concurrent |
| 17 | Offer to sell or supply methylamphetamine Date of offence: 17 September 2019 Quantity of drug: 0.5 g | 12 months' imprisonment | Concurrent |
| 18 | Offer to sell or supply methylamphetamine Date of offence: 20 September 2019 Quantity of drug: 1.75 g | 15 months' imprisonment | Concurrent |
| 19 | Offer to sell or supply methylamphetamine Date of offence: 26 September 2019 Quantity of drug: 2.25 g | 18 months' imprisonment | Concurrent |
| 20 | Offer to sell or supply methylamphetamine Date of offence: 26 September 2019 Quantity of drug: 0.5 g | 15 months' imprisonment | Concurrent |
| 21 | Offer to sell or supply methylamphetamine Date of offence: 1 October2019 Quantity of drug: 1.75 g | 18 months' imprisonment | Concurrent |
| 22 | Offer to sell or supply methylamphetamine Date of offence: 1 October 2019 Quantity of drug: 3.5 g | 20 months' imprisonment | Concurrent |
| 23 | Offer to sell or supply methylamphetamine Date of offence: 2 October 2019 Quantity of drug: 1.75 g | 18 months' imprisonment | Concurrent |
| 24 | Offer to sell or supply methylamphetamine Date of offence: 8 October 2019 Quantity of drug: 1.75 g | 18 months' imprisonment | Concurrent |
| 25 | Offer to sell or supply methylamphetamine Date of offence: 16 October 2019 Quantity of drug: 7 g | 2 years' imprisonment | Concurrent |
| 26 | Offer to sell or supply methylamphetamine Date of offence: 17 October 2019 Quantity of drug: 1.75 g | 18 months' imprisonment | Concurrent |
| 27 | Offer to sell or supply methylamphetamine Date of offence: 17 October 2019 Quantity of drug: 1.75 g | 18 months' imprisonment | Concurrent |
| 28 | Offer to sell or supply methylamphetamine Date of offence: 19 October 2019 Quantity of drug: 0.4 g | 8 months' imprisonment | Concurrent |
| 29 | Offer to sell or supply methylamphetamine Date of offence: 19 October 2019 Quantity of drug: 0.5 g | 8 months' imprisonment | Concurrent |
| 30 | Offer to sell or supply methylamphetamine Date of offence: 23 October 2019 Quantity of drug: 5.25 g | 12 months' imprisonment | Concurrent |
| 31 | Offer to sell or supply methylamphetamine Date of offence: 27 October 2019 Quantity of drug: 1.75 g | 18 months' imprisonment | Concurrent |
| 32 | Offer to sell or supply a trafficable quantity of methylamphetamine: s 6(1)(c) and s 34(1)(a) of the Misuse of Drugs Act Date of offence: 25 November 2019 Quantity of drug: 28 g | 3 years' imprisonment | Cumulative |
| 33 | Offer to sell or supply methylamphetamine Date of offence: 2 December 2019 Quantity of drug: 0.2 g | 6 months' imprisonment | Concurrent |
| IND 1013 of 2022 | |||
| 1 | Possession with intent to sell or supply a trafficable quantity of methylamphetamine: s 6(1)(c) and s 34(1)(1) of the Misuse of Drugs Act Date of offence: 23 February 2022 Quantity of drug: 43.44 g (80 - 81% purity) | 5 years' imprisonment | Cumulative (head sentence) |
| 2 | Obstruct police officer: s 172 of the Criminal Code Date of offence: 23 February 2022 | 12 months' imprisonment | Concurrent |
| 3 | Use identification material with intention to commit fraud: s 490 of the Criminal Code Date of offence: On or about 8 March 2022 | 9 months' imprisonment | Concurrent |
| 4 | Use identification material with intention to commit fraud Date of offence: On or about 8 March 2022 | 9 months' imprisonment | Concurrent |
| 5 | Use identification material with intention to commit fraud Date of offence: On or about 8 March 2022 | 9 months' imprisonment | Concurrent |
The sentencing judge considered that a total effective sentence of 8 years' imprisonment appropriately reflected the appellant's overall criminality in committing the offences, having regard to all the relevant circumstances and sentencing factors.[18]
[18] ts 83.
To achieve this total effective sentence, the sentencing judge ordered that the sentence imposed on count 32 of IND 136 of 2021, being 3 years' imprisonment, be served cumulatively on the sentence of 5 years' imprisonment imposed on count 1 of IND 1013 of 2022.[19] All other sentences were ordered to be served concurrently with each other and with the sentence imposed on count 1 of IND 1013 of 2022.[20]
[19] ts 83.
[20] ts 83.
The appellant's term of imprisonment was backdated to 27 September 2021, and he was made eligible for parole.[21]
[21] ts 83 - 84.
Personal circumstances
The appellant's personal circumstances were outlined by the sentencing judge in terms not criticised on appeal.[22]
[22] ts 76 - 79.
At the time of sentencing, the appellant was 31 years old.
The appellant was born in Queensland. Although he was raised by his mother, she often abandoned him and left him with his grandmother. The appellant has never met his father.
The appellant had an unstable family life, which was caused by constant movement from place to place so that his mother could avoid apprehension by Commonwealth police in relation to outstanding fraud charges. As a result of the appellant's lack of stability, he frequently moved schools and had no close friends growing up.
The appellant's mother was frequently physically and emotionally abusive towards him. His mother's drug use and her association with other drug‑users and people involved in criminal activity meant that the appellant was often exposed to drug abuse and violence.
When the appellant was 15 years old, his mother abandoned him entirely, leaving him in country New South Wales. The appellant has not had contact with his mother since. When the appellant was aged about 17, he moved to Western Australia for work.
The appellant began using cannabis when he was 15 years old. When the appellant was 19 years old, he was introduced to methylamphetamine by his then‑partner, from whom the appellant has since separated.
The sentencing judge noted that, as the appellant acknowledged, the appellant's offending was wrapped up with his drug use. The judge noted that the appellant had attended a drug and alcohol rehabilitation program, during which he regularly underwent urinalysis. The appellant had generally tested negative, but there were some relapses where he tested positive for drug use. The sentencing judge accepted that the appellant had, at the time of sentencing, been drug‑free for an extended period of time, particularly since his imprisonment in March of 2022. Through his counsel, the appellant had expressed a determination not to relapse into drug use once he was released into the community again.
The pre‑sentence report before the sentencing judge identified stressors in the appellant's life, which, the author considered, had led to the appellant relapsing into drug use and then committing the 2022 offences. The report's author considered that the appellant showed a great deal of insight into his offending behaviour, with the appellant accepting responsibility and identifying several factors that contributed to his offending.
The appellant is currently in a relationship with a supportive partner who is not a drug‑user. The appellant is also close with his sister and his mother's former partner, whom he regards as a stepfather.
Despite the appellant's lack of maternal support and his unstable background, the appellant was, to his credit, able to complete year 10. The appellant has obtained business certificates in various trades, including in automotive engineering.
The appellant has commenced a glass-glazing apprenticeship and a refrigeration mechanic apprenticeship, having been sponsored by former employers. The appellant has worked with his stepfather, and the appellant has established various businesses. The appellant has worked in the plastering and glass-glazing industries, and he has worked as an air-conditioner and air-duct installer.
Sentencing remarks
Seriousness of the offending
The sentencing judge made the following observations as to the appellant's 2019 offending and its serious features:[23]
[23] ts 73 - 74.
(1)The appellant was actively, persistently and regularly offering to sell or supply cannabis and methylamphetamine over an extended period of time, namely about five months.
(2)The appellant was in regular contact with at least 19 people to whom he made offers to sell cannabis or methylamphetamine. The appellant made several such offers to some of these people.
(3)The quantities the subject of the appellant's offers concerning methylamphetamine ranged from 0.1 g to 1.75 g. On one occasion, the appellant offered to sell 3.5 g and, on another occasion, the appellant offered to sell 7 g.
(4)In relation to count 32, which was an offer to sell or supply 28 g of methylamphetamine, the judge accepted that the appellant was unable to personally access that quantity of methylamphetamine. Rather, the judge found, the appellant's role was as a middle‑man between the purchaser and the ultimate supplier. The judge also accepted that the transaction did not eventuate, likely because the potential purchaser was not prepared to proceed, as opposed to any lack of effort or intention on the appellant's part. His Honour considered that the appellant deserved very little credit for the transaction not having proceeded.
(5)Similarly, in relation to count 25, the judge accepted that the transaction did not proceed but considered that the appellant deserved very little credit for the transaction not having proceeded.
(6)The appellant was sentenced on the basis that the balance of the transactions generally did proceed.
(7)The judge found that the appellant was able to readily source methylamphetamine and cannabis.
(8)Although the text messages did not reveal what the appellant was charging to sell methylamphetamine, the judge observed that, at one stage, a point (0.1 g) commonly sold for $100. The appellant indicated in a relevant text message that the price for the 28 g of methylamphetamine would be $4,500.
(9)The appellant's offending was for a commercial purpose, with the appellant offering to sell, and selling, cannabis and methylamphetamine, in part to help fund his own drug use. Although the sentencing judge accepted that the extent of the appellant's commerciality in relation to count 32 was not the same as the principal or owner of the drugs, the judge was satisfied that the appellant would have commercially profited to some extent.
(10)The appellant was sentenced on the basis that he was towards the middle of the drug‑distribution network - that is, above the street‑level user/dealer.
The sentencing judge made the following findings and observations as to the seriousness of the 2022 offending:[24]
(1)The purity of the 43.44 g of methylamphetamine involved in count 1 was between 80% and 81%.
(2)The offending on this indictment occurred while the appellant was on bail for the 2019 offending. The appellant had clearly not been deterred from continuing to offend, despite having been charged with the earlier serious offending.
(3)The appellant's offending on count 1 involved a significantly greater quantity of methylamphetamine than the 2019 offending and confirmed the appellant's ability to access significant quantities of methylamphetamine.
(4)Although the sentencing judge was unable to make findings as to the precise extent to which the appellant stood to commercially benefit from the offending on count 1, his Honour was satisfied that the appellant's offending was for commercial purposes. Similarly, although the sentencing judge was unable to make a finding as to the appellant's placement in the drug‑distribution network, his Honour was satisfied that the appellant was playing a significant role in the distribution of large quantities of methylamphetamine into the community.
(5)As to counts 2 ‑ 5, knowing that police would find the methylamphetamine the subject of count 1 in his car, the appellant ran away from police and continued to evade police while aware that they had been looking for him for a period of about two weeks. The appellant used counterfeit licences to assist his efforts in evading police.
Mitigating factors
[24] ts 74 - 75.
The appellant pleaded guilty to the charges on the 2021 indictment on the first day of trial. The judge discounted the sentences for each of those offences by 5%, pursuant to s 9AA of the Sentencing Act 1995 (WA).[25] The sentences on the 2022 indictment were reduced by 25%.[26]
[25] ts 81.
[26] ts 83.
The judge identified the following further mitigating factors:
(1)The appellant had demonstrated remorse[27] and had shown insight into the connection between his drug use and his offending.[28]
(2)The appellant's unstable and dysfunctional background meant that he suffered from the significant disadvantages of a lack of a proper family structure, support and guidance from a young age.[29]
(3)The appellant has support in the community in the form of a stable family and partner, and good employment prospects.[30]
Sentencing considerations
[27] ts 77.
[28] ts 75, 77, 79.
[29] ts 75, 80.
[30] ts 75 - 76.
The sentencing judge noted the importance of both general deterrence and personal deterrence in sentencing for offences of this type. His Honour observed that a necessary consequence of the need to give weight to deterrence was that mitigating factors personal to the appellant attract less weight than would otherwise be the case.[31]
[31] ts 80.
The sentencing judge recorded that he had taken into account all of the submissions made by the parties and the material provided to him, including letters he had received.[32]
[32] ts 81.
As already noted, having regard to all the circumstances of the appellant's offending, as well as to the appellant's personal circumstances, all mitigating factors and other sentencing considerations, the sentencing judge considered that a total effective sentence of 8 years' imprisonment was appropriate.[33] His Honour imposed the penalties set out at [16] above.
[33] ts 83.
Ground of appeal
The appellant's sole ground of appeal is inaptly expressed. It asserts that there was a miscarriage of justice in that the total effective sentence of 8 years was manifestly excessive. As the appellant recognised at the hearing of the appeal, in substance the sole ground of appeal alleges a breach of the first limb of the totality principle.
Appellant's submissions
In support of the ground of appeal, the appellant adopts the survey of comparable cases by this court in Cochrane v The State of Western Australia.[34] The appellant points to the decisions in Le v The State of Western Australia;[35] Curry v The State of Western Australia;[36] ATH v The State of Western Australia;[37] Moodley v The State of Western Australia[38] and Baker v The State of Western Australia[39] as supporting the conclusion that the total effective sentence in the present case was so high as to reveal error.
[34] Cochrane v The State of Western Australia [2021] WASCA 5.
[35] Le v The State of Western Australia [2022] WASCA 163.
[36] Curry v The State of Western Australia [2022] WASCA 36.
[37] ATH v The State of Western Australia [2021] WASCA 149.
[38] Moodley v The State of Western Australia [2020] WASCA 158.
[39] Baker v The State of Western Australia [2020] WASCA 117.
In oral submissions, the appellant points to the fact that the total effective sentence of 8 years arose from the sentencing judge's decision to order that the sentence of 3 years' imprisonment on count 32 of the first indictment was to be served entirely cumulatively on the sentence of 5 years' imprisonment for count 1 of the second indictment. The appellant submits that to so order was erroneous, because the nature of the two offences meant that they had a degree of commonality, which called for some degree of concurrency between the two sentences.[40]
[40] Appeal ts 2, 4 -5, 6.
Legal principles
Totality
The general principles governing an appeal contending that the total effective sentence infringes the first limb of the totality principle are well established. They were summarised in Kabambi v The State of Western Australia[41] in, relevantly, the following terms:
[41] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
…
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up.[42]
Sentencing considerations for drug offences
[42] Roffey v The State of Western Australia [2007] WASCA 246 [26].
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question 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 that 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.[43]
[43]Gaskell v The State of Western Australia [2018] WASCA 8 [128].
In Tirkot v The State of Western Australia, this court explained the approach to sentencing for offences of offering to sell or supply prohibited drugs, as follows:[44]
[44] Tirkot v The State of Western Australia [2018] WASCA 41 [52] - [53].
The seriousness of any offence against s 6 of the [Misuse of Drugs Act] must be evaluated by reference to all of the circumstances of the offending. The appellant's universal proposition as to the comparative seriousness of an offence of offering to sell and an offence of selling cannot be accepted. While it is generally of some relevance that an offence of offering to sell does not involve the supply of drugs, 'its relevance will depend upon the reason the offer did not come to fruition'. Indeed, that observation proceeds on the assumption that the offer did not come to fruition. While in an offence of offering to sell, it cannot be assumed that the offer came to fruition in the form of a sale, equally it cannot necessarily be assumed that the offer did not result in a sale. The position may simply be unknown.
Many factors will be relevant in assessing the seriousness of an offence of offering to sell a prohibited drug. Among the factors that will often be relevant are:
(a)The terms of the offer, in particular as to the quantity of a drug, its price, etc.
(b)Whether a particular offer is an isolated one or whether it occurs in the context of an ongoing supply of prohibited drugs.
(c)Whether, and if so, the extent to which the offer is motivated by reasons of commercial gain or greed.
(d)Whether the offeror, at all material times, had the intention to fulfil the offer.
(e)Whether the offeror had the capacity to fulfil the offer to supply.
(f)Whether the offeror attempts to fulfil the order. If not, whether any failure to perform was the result of a decision by the person concerned not to supply or whether it was due to some intervening or extraneous circumstances.
(footnotes omitted)
Disposition
In our view, the appellant has not demonstrated that the sentencing outcome in this case - namely, a total effective sentence of 8 years' imprisonment - is so high as to compel the inference that there has been some misapplication of principle in the exercise of the sentencing judge's discretion.
The appellant's two offences involving a trafficable quantity of methylamphetamine each carried a maximum penalty of life imprisonment. The 25 counts of offering to sell or supply methylamphetamine each carried a maximum penalty of 25 years' imprisonment. The seven counts of offering to sell or supply cannabis each had a maximum penalty of 7 years' imprisonment. The three counts of using identification material with the intention to commit an indictable offence each carried a maximum penalty of 7 years' imprisonment, with the obstructing police count having a maximum penalty of 3 years' imprisonment.
As the sentencing judge observed, applying the principles set out in [45] above the appellant's 2019 offending had a number of serious features. For a period of about five months, the appellant regularly offered to sell or supply drugs, in some cases methylamphetamine and in other cases cannabis, to a number of different people. The fact that the appellant was dealing in two different drugs adds an additional element to his criminality. Further, one of the appellant's offers concerned 28 g of methylamphetamine.
Had the appellant been sentenced for the offences on the first indictment standing alone, a sentence appreciably in excess of 3 years' imprisonment would have been appropriate, particularly given the persistence and duration of the offending the subject of the first indictment.
There is no challenge to the sentence of 5 years' imprisonment for count 1 on the second indictment. That sentence reflects the serious features of the offence, as identified by the sentencing judge and summarised in [33](1) ‑ (4) above. Further, it should not be overlooked that the second indictment included counts 2 ‑ 5, which involved additional criminality of a different character from the drug-dealing the subject of the appellant's other offending. While the sentences for counts 2 ‑ 5 were made concurrent, those offences involved distinct additional criminality that forms part of the appellant's overall criminality.
The appellant's submission at [41] above proceeds on a flawed basis. The 8‑year total effective sentence was not derived from the mechanical addition of two sentences for offences thought in isolation to warrant wholly cumulative sentences. As is clear from the judge's sentencing remarks, his Honour identified the sentence for each individual offence, then determined what he considered to be the appropriate total effective sentence, to which he gave effect by accumulating the 3‑year sentence on count 32 of the first indictment with the 5‑year sentence on count 1 of the second indictment.[45] Thus, the 8-year sentence reflects, as it should, the overall criminality manifested in all of the appellant's offending.
[45] ts 83.
Nothing in the consideration of other comparable cases supports a conclusion that the total effective sentence in the present case was so high as to reveal error.
Comparable sentencing cases are considered so as to ensure broad consistency. Comparable cases are one yardstick for the evaluation of whether error is to be implied from the sentencing outcome. The consistency sought by the exercise of appellate jurisdiction is consistency in the application of relevant legal principles, not numerical consistency.[46]
[46] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [49]; R v Pham [2015] HCA 39; (2015) 256 CLR 550 [28].
Because the dismissal by this court of an appeal against sentence does not fix the upper (or lower) bounds of a proper exercise of the sentencing discretion, individual comparison with a sentence in another case, or in a few cases, provides little assistance in discerning whether a particular sentence reveals implied error. That is all the more so where, as occurred in several of the cases on which the appellant relies, leave to appeal was refused. As Quinlan CJ observed in Pedrochi v Brown,[47] where a sentence is not even arguably excessive, it provides little assistance as a marker of the upper limits of the proper exercise of discretion.
[47] Pedrochi v Brown [2021] WASCA 81 [43].
Further, as Hall J observed in Pennetta v The State of Western Australia,[48] in a passage that has been cited with approval many times,[49] where it is claimed there has been a breach of the totality principle, the utility in comparing the total effective sentence with total sentences in other cases is limited. That is because:[50]
the total effective sentence is not one imposed for a single offence. It is often difficult enough to compare sentences imposed in different cases with different factual circumstances and different personal circumstances where the offences relate only to a single offence. The fact that different offenders may have received different total effective sentences in respect of different groupings of sentences adds a level of complexity that makes comparisons difficult. Nonetheless it is important to ensure there is broad consistency in sentences.
[48] Pennetta v The State of Western Australia [2013] WASCA 234.
[49] See, for example, GUE v The State of Western Australia [2022] WASCA 121 [58].
[50] Pennetta v The State of Western Australia [39].
The appellant's submissions in relation to the comparable cases tended to focus too singularly on the quantity of drugs involved. It is basic, but nonetheless important, that attention must be given to all the circumstances of each case.[51] Attention should be given to what the offender did in committing the offence(s) for which they are to be sentenced.[52]
[51] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [75] ‑ [76].
[52] R v Pham [34]. See also [44] above.
When these principles are applied, consideration of comparable cases does not assist the appellant's claim of implied error. In Le, although the offending involved a greater amount of methylamphetamine, the offender's eight drug transactions extended over a period of only five weeks. In any event, leave to appeal was refused, so the observations in [54] above apply. Curry involved a single offence of possession with intent and, for that reason, does not assist. Further, the sentence was held to be well within the range of sentences available, such that a materially higher sentence could have been imposed without revealing error. ATH was concerned only with parity. Moodley concerned only a single offence and the issue on appeal was parity.
Baker has some features in common with the present case. However, the case concerned eight offers to sell or supply methylamphetamine. In respect of what was by far the largest offer, this court resentenced the offender on the basis that it was not proved beyond reasonable doubt that the offender had the capacity to fulfil the offer. Even if comparison with the sentence imposed in Baker were thought to suggest that the appellant's sentence is high, comparison with one case, or even a few cases, will rarely, if ever, be a sufficient indication of error in the exercise of the sentencing discretion.
Having regard to the matters referred to in [42] ‑ [50] and [52] above, giving full weight to the appellant's pleas of guilty, and to all the mitigating factors in his favour,[53] his total effective sentence of 8 years' imprisonment does not reveal error.
[53] Including what is said in the Confidential Annexure to these reasons.
For the reasons we have given, the ground of appeal is not established.
Conclusion
For the above reasons, while we would grant leave to appeal, the appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RL
Research Associate to the Honourable Justice Beech
30 AUGUST 2023
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