Separovic v The State of Western Australia - [2018] WASCA 36

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SEPAROVIC -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 36

CORAM: BUSS P
MAZZA JA

HEARD: 9 NOVEMBER 2017

DELIVERED : 19 MARCH 2018

FILE NO/S: CACR 174 of 2017

BETWEEN: VEDRANA SEPAROVIC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :TROY DCJ
File No  :IND 768 of 2016

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted after trial of three counts of possession of a prohibited drug with intent to sell or supply - Total effective sentence of 10 years' imprisonment - Totality principle

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1), s 34(2)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr G Yin
Respondent: No appearance

Solicitors:

Appellant: Dr Martine Marich & Associates
Respondent: Director of Public Prosecutions (WA)

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

Al-Rafei v The State of Western Australia [2017] WASCA 4
Bahn v The State of Western Australia [2008] WASCA 40
Bees v The State of Western Australia [2017] WASCA 202
Benter v The State of Western Australia [2005] WASCA 245
Bond v The State of Western Australia [2011] WASCA 123
Chen v The State of Western Australia [2017] WASCA 114
Chen v The State of Western Australia [2017] WASCA 99
Civello v The State of Western Australia [No 2] [2008] WASCA 163
Delovski v The Queen [2002] WASCA 88
Galbraith v The State of Western Australia [2011] WASCA 70
Giglia v The State of Western Australia [2010] WASCA 9
Halmi v The State of Western Australia [2013] WASCA 229
Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522
Kobeissi v The State of Western Australia [2016] WASCA 188
Koncurat v The State of Western Australia [2010] WASCA 184
Lai v The State of Western Australia [2012] WASCA 181; (2012) 225 A Crim R 218
Le v The State of Western Australia [2015] WASCA 73
Mather v The State of Western Australia [2017] WASCA 148
Monument v The State of Western Australia [2007] WASCA 239
Nguyen v The State of Western Australia [2017] WASCA 35
Pham v The State of Western Australia [2011] WASCA 244
Phan v The State of Western Australia [2014] WASCA 144
Quach v The Queen [1999] WASCA 210
Roffey v The State of Western Australia [2007] WASCA 246
Sabau v The State of Western Australia [2010] WASCA 3
Stapleton v The Queen [2004] WASCA 130
Tanner v The State of Western Australia [2013] WASCA 142
Tema v The State of Western Australia [2011] WASCA 41; (2011) 206 A Crim R 104
The State of Western Australia v Toothill [2007] WASCA 236
Urbano v The State of Western Australia [2006] WASCA 147
Yiu v The State of Western Australia [2016] WASCA 172

JUDGMENT OF THE COURT: The appellant has applied for leave to appeal against sentence.
The appellant was charged on indictment with three counts.
Count 1 alleged that on 22 February 2015, at Balcatta, the appellant and Ben Morris Yakich had in their possession 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) (the MD Act).
Count 2 alleged that on the same date and at the same place the appellant and Mr Yakich had in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act.
Count 3 alleged that on the same date and at the same place the appellant and Mr Yakich had in their possession a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act.
On 18 April 2017, after a joint trial in the District Court before Troy DCJ and a jury, the appellant was convicted of counts 1, 2 and 3 and Mr Yakich was convicted of count 1 and acquitted of count 2. Mr Yakich pleaded guilty to count 3 on the morning the trial began.
The methylamphetamine the subject of count 1 comprised 221.68 g of the drug. Police found the methylamphetamine in the appellant's house at Balcatta. At the time, the appellant resided at the Balcatta house with Mr Yakich, who was her boyfriend.
The methylamphetamine the subject of count 2 comprised 1.042 kg of the drug. Police found the methylamphetamine in a car parked in the driveway of the Balcatta house.
The cannabis the subject of count 3 comprised 828.2 g of the drug. Police found the cannabis in the Balcatta house.
On 4 August 2017, the trial judge imposed individual sentences of imprisonment on the appellant as follows:
(a)count 1:     18 months;
(b)count 2:     8 years 6 months; and
(c)count 3:     12 months.
His Honour ordered that the sentence for count 1 be served cumulatively upon the sentence for count 2 and that the sentence for count 3 be served concurrently with the sentence for count 2. The total effective sentence was therefore 10 years' imprisonment. The sentences for counts 2 and 3 and the total effective sentence were backdated to 18 March 2017. A parole eligibility order was made.
The sole ground of appeal, as drafted, asserts that the sentences for counts 1 and 2 were, in all the circumstances, manifestly excessive. However, at the hearing of the application, counsel for the appellant informed the court that the ground should be understood to allege that the total effective sentence infringed the first limb of the totality principle. Counsel said in effect that the challenge to the trial judge's sentencing decision was confined to an allegation that the first limb of the totality principle was infringed (appeal ts 4).
We would refuse leave to appeal and dismiss the appeal. Our reasons are as follows.

The facts and circumstances of the offending and the appellant's personal circumstances and antecedents

The facts and circumstances of the offending, as summarised by the trial judge in his sentencing remarks, were as follows.
As to count 1, the trial judge found that, at the time, each of the appellant and Mr Yakich was in the business of selling methylamphetamine. They were in joint possession of the drug which constituted their stock in trade.
As to count 3, his Honour found that, at the time, each of the appellant and Mr Yakich was in the business of selling cannabis. They were in joint possession of the drug which constituted their stock in trade.
As to count 2, the trial judge found that the 1.042 kg of methylamphetamine was part of the appellant's stock in trade.
The purity of the methylamphetamine, the subject of counts 1 and 2, was about 80%. The drugs were of significant value, even if they were sold in bulk.
In 2015, each of the appellant and Mr Yakich was a commercial drug dealer. Police located firearms, other weapons, cash, scales, cryovac machines and tick lists in the Balcatta house.
His Honour said the fact that the appellant was in possession of methylamphetamine and cannabis for commercial gain was an aggravating factor. The prosecutor submitted that the appellant's level of dealing was 'mid‑level'. His Honour said that, having regard to the jury's verdict of guilty on count 2, that characterisation was 'overly generous' to the appellant.
The trial judge noted that during the trial both the appellant and Mr Yakich (particularly Mr Yakich) had made some admissions which facilitated the streamlining of the trial.
The appellant was aged 43 at the time of the offending and was 45 when sentenced.
Since she had been remanded in custody, the appellant had worked hard towards rehabilitation and had been a model prisoner. She was endeavouring to use her time in custody as constructively as possible.
His Honour had received a number of written references in relation to the appellant. The authors of the references spoke well of her.
The appellant had a minor prior criminal record. In June 2012 she was convicted of being in possession of methylamphetamine and cannabis and carrying a controlled weapon. Those offences were dealt with by way of a spent conviction order and a fine. In October 2015 she was convicted of possession of cannabis.

The ground of appeal: the appellant's submissions

Counsel for the appellant submitted that the total effective sentence of 10 years' imprisonment infringed the first limb of the totality principle.
Counsel emphasised the appellant's personal circumstances. In particular, it was contended that:
(a)the appellant was 'a person essentially of good character';
(b)her prior criminal record was 'minor';
(c)the appellant had 'a minor problem with methylamphetamine';
(d)she 'picked up the [methylamphetamine] habit essentially because of her relationship with Mr Yakich';
(e)the appellant was a hairdresser and had been working in that trade for more than 20 years;
(f)she was 'highly regarded in the community'; and
(g)since the appellant had been remanded in custody, 'she had done her very best to try and make the most out of a very difficult situation'.
According to counsel for the appellant, when viewed against the range of sentences in similar cases, and giving appropriate weight to all relevant factors including the appellant's personal circumstances, error was to be inferred from the length of the total effective sentence imposed by his Honour.

The ground of appeal: its merits

At the material time, the maximum penalty for the offence of possessing methylamphetamine with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, was 25 years' imprisonment or a fine of $100,000 or both. See s 34(1) of the MD Act.
At the material time, the maximum penalty for the offence of possessing cannabis with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, was 10 years' imprisonment or a fine of $20,000 or both. See s 34(2) of the MD Act.
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. 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. All of these propositions are well-established by the case law.
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. These propositions are also well-established by the case law.
We have considered numerous prior cases of offending against s 6(1) of the MD Act which have at least some features comparable to the appellant's offending. See Quach v The Queen;[1] Delovski v The Queen;[2] Kezkiropoulos v The Queen;[3] Stapleton v The Queen;[4] Benter v The State of Western Australia;[5] Urbano v The State of Western Australia;[6] The State of Western Australia v Toothill;[7] Monument v The State of Western Australia;[8] Bahn v The State of Western Australia;[9] Civello v The State of Western Australia [No 2];[10] Sabau v The State of Western Australia;[11] Koncurat v The State of Western Australia;[12] Tema v The State of Western Australia;[13] Galbraith v The State of Western Australia;[14] Bond v The State of Western Australia;[15] Pham v The State of Western Australia;[16] Lai v The State of Western Australia;[17] Tanner v The State of Western Australia;[18] Halmi v The State of Western Australia;[19] Phan v The State of Western Australia;[20] Le v The State of Western Australia;[21] Yiu v The State of Western Australia;[22] Kobeissi v The State of Western Australia;[23] Al-Rafei v The State of Western Australia;[24] Nguyen v The State of Western Australia;[25] Chen v The State of Western Australia;[26] Chen v The State of Western Australia;[27] Mather v The State of Western Australia;[28] Bees v The State of Western Australia;[29] and the cases reviewed in those decisions. We have also considered other cases cited by the appellant. It is unnecessary to reproduce the facts and circumstances of the prior cases we have considered or the sentencing outcomes. There are some comparable features between some of the prior cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
[1] Quach v The Queen [1999] WASCA 210.
[2]Delovski v The Queen [2002] WASCA 88.
[3] Kezkiropoulos v The Queen [2002] WASCA 352; (2002) 136 A Crim R 522.
[4] Stapleton v The Queen [2004] WASCA 130.
[5] Benter v The State of Western Australia [2005] WASCA 245.
[6] Urbano v The State of Western Australia [2006] WASCA 147.
[7] The State of Western Australia v Toothill [2007] WASCA 236.
[8] Monument v The State of Western Australia [2007] WASCA 239.
[9] Bahn v The State of Western Australia [2008] WASCA 40.
[10] Civello v The State of Western Australia [No 2] [2008] WASCA 163.
[11] Sabau v The State of Western Australia [2010] WASCA 3.
[12] Koncurat v The State of Western Australia [2010] WASCA 184.
[13] Tema v The State of Western Australia [2011] WASCA 41; (2011) 206 A Crim R 104.
[14] Galbraith v The State of Western Australia [2011] WASCA 70.
[15] Bond v The State of Western Australia [2011] WASCA 123.
[16] Pham v The State of Western Australia [2011] WASCA 244.
[17] Lai v The State of Western Australia [2012] WASCA 181; (2012) 225 A Crim R 218.
[18] Tanner v The State of Western Australia [2013] WASCA 142.
[19] Halmi v The State of Western Australia [2013] WASCA 229.
[20] Phan v The State of Western Australia [2014] WASCA 144.
[21] Le v The State of Western Australia [2015] WASCA 73.
[22] Yiu v The State of Western Australia [2016] WASCA 172.
[23] Kobeissi v The State of Western Australia [2016] WASCA 188.
[24] Al-Rafei v The State of Western Australia [2017] WASCA 4.
[25] Nguyen v The State of Western Australia [2017] WASCA 35.
[26] Chen v The State of Western Australia [2017] WASCA 99.
[27] Chen v The State of Western Australia [2017] WASCA 114.
[28] Mather v The State of Western Australia [2017] WASCA 148.
[29] Bees v The State of Western Australia [2017] WASCA 202.
The very serious nature of the appellant's overall offending on counts 1, 2 and 3 is apparent from the following:
(a)the quantity, purity and value of the methylamphetamine the subject of counts 1 and 2; and
(b)the quantity of the cannabis the subject of count 3.
The appellant's offending on counts 1, 2 and 3 was not isolated or an aberration. The trial judge's unchallenged finding was that in 2015 the appellant was a commercial drug dealer.
The appellant was not youthful or inexperienced for sentencing purposes.
The appellant was, of course, entitled to proceed to trial, but she was unable to claim the mitigation that pleas of guilty would have brought.
The appellant's minor prior criminal record, and any failure of previous sentences to achieve the purpose for which they were imposed, did not aggravate the offending in question.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear 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 a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual sentences. See Roffey v The State of Western Australia.[30] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia.[31]
[30] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[31] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
We are satisfied that it was necessary, in order properly to mark the seriousness of the appellant's overall offending, for the individual sentences imposed on each of counts 1 and 2 to be served cumulatively. Counts 1 and 2 involved separate and distinct offending.
In our opinion, after taking into account:
(a)the maximum penalties for counts 1, 2 and 3;
(b)the very serious nature of the offending, viewed as a whole, including the unchallenged aggravating factor that the appellant was in possession of the methylamphetamine and the cannabis for commercial gain;
(c)the total effective sentences imposed in previous cases with at least some features comparable to the appellant's overall offending;
(d)the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind;
(e)the appellant's personal circumstances;
(f)the mitigating factors referred to by his Honour; and
(g)all other relevant sentencing considerations,
the total effective sentence of 10 years' imprisonment was not unreasonable or plainly unjust.
The total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the appellant personally, and the total effective sentences imposed in reasonably comparable cases.
It is not reasonably arguable that error by his Honour in the exercise of his discretion should be inferred, based on the first limb of the totality principle, from the sentencing outcome.
Finally, we note for completeness that, in our opinion, none of the individual sentences of imprisonment imposed on the appellant is manifestly excessive. That is, after taking into account the maximum penalty for each offence; the serious nature of each offence; the objective facts and circumstances of each offence; the standards of sentencing customarily observed; the appellant's personal circumstances; all mitigating factors; and all other relevant sentencing considerations, we are satisfied that none of the individual sentences was unreasonable or plainly unjust.
The ground of appeal is without merit.

Conclusion

The ground of appeal does not have a reasonable prospect of success. Leave to appeal should be refused and the appeal dismissed.