Sharp v The State of Western Australia
[2023] WASCA 142
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SHARP -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 142
CORAM: BUSS P
HALL JA
HEARD: 8 SEPTEMBER 2023
DELIVERED : 4 OCTOBER 2023
FILE NO/S: CACR 42 of 2023
BETWEEN: KALE JAMES SHARP
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: MacLEAN DCJ
File Number : IND 1901 of 2022
Catchwords:
Criminal law - Appeal against sentence - Drug offences - Failure to comply with data access order - Attempt to introduce drugs into a detention centre - Whether total effective sentence of 4 years 6 months' imprisonment breached first limb of totality principle
Legislation:
Criminal Investigation Act 2006 (WA), s 61(2)
Misuse of Drugs Act 1981 (WA), s 6(1)(c)
Result:
Leave to appeal refused
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 decision(s):
Chadburne v The State of Western Australia [2017] WASCA 216
Cochrane v The State of Western Australia [2021] WASCA 5
Donaldson v The State of Western Australia [2018] WASCA 143
Donaldson v The State of Western Australia [2020] WASCA 193
Gaskell v The State of Western Australia [2018] WASCA 8
HSH v The State of Western Australia [2023] WASCA 113
Kabambi v The State of Western Australia [2019] WASCA 44
Nguyen v The State of Western Australia [2019] WASCA 56
O'Malley v The State of Western Australia [2021] WASCA 8
Slade v The State of Western Australia [2019] WASCA 65
The State of Western Australia v Doyle [2017] WASCA 207
The State of Western Australia v Stocker [2022] WASCA 178
Turner v The State of Western Australia [2021] WASCA 132
Wade v The State of Western Australia [2022] WASCA 68
JUDGMENT OF THE COURT:
This is an application for leave to appeal against sentence.
The appellant was convicted on his pleas of guilty of the following three counts.
(1)That he attempted to supply a prohibited drug, namely methylamphetamine, to another contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA).
(2)That he attempted to supply a prohibited drug, namely cannabis, to another contrary to s 6(1)(c) of the Misuse of Drugs Act.
(3)That he failed to obey a data access order without reasonable excuse contrary to s 61(2) of the Criminal Investigation Act 2006 (WA).
The appellant was sentenced to 4 years' imprisonment on count 1, 18 months' imprisonment on count 2, and 6 months' imprisonment on count 3. The sentence on count 2 was ordered to be served concurrently with the sentence on count 1, and the sentence on count 3 was ordered to be served cumulatively upon the sentence on count 1. Thus, the total effective sentence was 4 years and 6 months' immediate imprisonment.
The appellant is self‑represented. His ground of appeal is that the sentence imposed on him was excessive. In effect, he contends that the total effective sentence of 4 years and 6 months was disproportionate to his offending when viewed as a whole. He submits that the total sentence is inconsistent with sentences imposed on others for similar offences and fails to take into account his pleas of guilty and that he was acting under a degree of duress or pressure.
For the following reasons it is not reasonably arguable that the total effective sentence was plainly unreasonable or unjust. The appellant's ground of appeal has no reasonable prospect of success. Leave to appeal should be refused and the appeal dismissed.
The facts
The facts of the offending were not in dispute.
On 25 December 2021 at 10.57 pm the appellant was outside the Yongah Hill Detention Centre in Mitchell Avenue, Northam. He was in possession of two tennis balls. Each of the tennis balls had been wrapped in tape and had lighters attached to them. The first tennis ball contained 13.82 g of methylamphetamine and 12.07 g of cannabis. The second tennis ball contained 14.03 g of methylamphetamine and 11.34 g of cannabis. The total weight of methylamphetamine was 27.85 g with a purity of 80%. The total weight of cannabis was 23.41 g.[1]
[1] ts 3.
The appellant threw the tennis balls over the fence into the detention centre. His actions were observed on CCTV by security officers. The security officers were able to recover the tennis balls.[2]
[2] ts 3.
A forensic examination was conducted on the packaging containing the drugs within the tennis balls. The appellant's DNA was located inside the plastic clip seal bags in which the drugs were packaged.[3]
[3] ts 3.
On 7 April 2022 police executed a search warrant at the appellant's home in Butler. Another tennis ball packaged in a similar way and containing cannabis and suboxone strips was found. During the search police also located a black Samsung mobile telephone. The appellant stated that the telephone was his. He was requested to provide the access code but refused. He was arrested and conveyed to police premises where he participated in an interview. During the interview he made admissions to having previously supplied drugs to persons at the Yongah Hill Detention Centre in a similar manner but denied having done so on this occasion.[4]
[4] ts 3 - 4, 8.
On 13 April 2022 police obtained a data access order in regard to the Samsung mobile telephone. The order required the appellant to provide information to allow the police to access any data on the device. The appellant was required to comply with the order by 22 April 2022. He was personally served with the order on 14 April 2022. He provided a pattern to access the telephone, which was found to be incorrect.[5]
[5] ts 4.
On 26 April 2022 police spoke to the appellant by telephone whilst he was at Hakea Prison. He was told that the pattern he had initially provided did not work and he then provided a second pattern. The second pattern was tested and also found to be incorrect. The appellant failed to provide police with the information necessary to access the data within the mobile telephone, as required by the data access order.[6]
[6] ts 4.
Personal circumstances
The appellant was aged 32 at the time of sentencing. He was aged 30 when he committed the first two offences and aged 31 at the time of the data access order offence. He was born in Perth and is the only child born to his parents' union. His parents separated when he was very young and he was raised by his mother. His mother remarried and he has a younger half‑brother.[7]
[7] Pre-sentence report, 24 January 2023, pages 1, 3.
The appellant did not get along with his step‑father and for some years moved between his mother's and father's homes before moving into independent accommodation at the age of 18.[8]
[8] Pre-sentence report, 24 January 2023, page 3.
The appellant completed year 9 of high school. He left school because he was disinterested and was suspended a number of times due to fighting and truancy. He then worked in various trade roles for short periods of time before gaining employment as a roof tiler for approximately 10 years. He started his own business in 2016. However, after the breakdown of a relationship in 2018 he commenced daily drug use and the business deteriorated. He has been unemployed since that time.[9]
[9] Pre-sentence report, 24 January 2023, page 3.
According to a psychiatric report, the appellant has a significant family history of addiction. He displayed symptoms of attention deficit hyperactivity disorder as a child, which is considered a risk factor for substance abuse. He did not receive appropriate support for his developmental needs. Early maladjustment and an inability to cope with stress led him down a self‑destructive path of substance addiction. The psychiatric report states that the appellant has no formal mental health diagnosis and his main psychiatric issues stem from his drug addiction.[10]
[10] Psychiatric report, 17 January 2023, pages 2, 4.
The appellant began using cannabis and alcohol at around the age of 16 and developed an addiction during his teenage years. He progressed to smoking around 2 g of cannabis a day and this continued for most of his adult life. He has not had any significant periods of abstinence. He also drank six to seven beers daily during his teenage years, with periods of binge drinking where he would consume a bottle of spirits in a session. He had a brief period of abstinence, but this was short lived.[11]
[11] Psychiatric report, 17 January 2023, page 2.
Approximately four to five years ago, the appellant was introduced to methylamphetamines and began using them regularly on weekends. He reported that his drug use escalated after an incident involving a police officer. The appellant also reported that in the past year he engaged in heavy use of methylamphetamine and other drugs such as buprenorphine strips to regulate his arousal levels.[12]
[12] Psychiatric report, 17 January 2023, page 3.
As an adult the appellant formed a stable relationship that continued for some 10 years and produced two children. However, after that relationship broke down his drug abuse spiralled out of control. He has continued to have contact with his two children and has expressed a desire to be a good father to them. However, a pre‑sentence report noted that the appellant has limited motivation to address his substance use.[13]
[13] Pre-sentence report, 24 January 2023, pages 1, 3 - 4.
The appellant stated to the pre-sentence report author that his involvement in the current offences arose because he was told that in exchange for his participation he would be paid in illicit substances. He said that at the time his drug use had greatly increased, and he was thinking only of meeting his own drug addiction needs. He minimised the seriousness of his actions and the potential security implications for the detention centre. In regard to the data access order offence the appellant claimed that he forgot the password.[14]
[14] Pre-sentence report, 24 January 2023, page 2.
In sentencing submissions defence counsel said that since the completion of the pre-sentence report the appellant had expressed a keen desire to address his drug issues and to live a law‑abiding life. Counsel said that the appellant had explained his offending as 'doing something at the instigation of others, not, however, reaching the level of the legal defence of duress'. The appellant was described as having a determination to do something positive about his life upon his release.[15]
[15] ts 5 - 6.
The appellant has an extensive prior criminal record, which includes drug, violence, traffic and property related offences. His first offence as an adult occurred in 2009. The prior drug offences include offences involving methylamphetamine and cannabis.[16]
[16] Pre-sentence report, 24 January 2023, pages 1 - 2.
Sentencing remarks
The sentencing judge described the offending as very serious. He said that attempting to introduce illicit drugs into a detention centre was particularly serious conduct which could affect the proper management of that centre. There was a risk that if the drugs had been successfully introduced into the detention centre it would have caused further offending and violence, together with the associated problems. His Honour noted that detainees within a detention centre are susceptible to exploitation from those who want to profit by distributing illicit drugs because they represent a captive and receptive market. This was relevant because it highlighted the need for general deterrence.[17]
[17] ts 11 - 12.
The sentencing judge noted that the appellant's criminal record was not an aggravating factor but that it did accentuate the importance of personal deterrence. His Honour was satisfied that the appellant needed to be specifically deterred and punished in order for him to realise that offending involving drugs, and the lifestyle connected to it, had to cease.[18]
[18] ts 12.
The sentencing judge accepted that the appellant had pleaded guilty at a relatively early stage and allowed a 20% discount on the sentences he would otherwise have imposed, pursuant to s 9AA of the Sentencing Act 1995 (WA).[19]
[19] ts 12.
As regards the appellant's claim that he was pressured to commit the offences, the sentencing judge accepted that the appellant's addiction made him more vulnerable to being taken advantage of by more sophisticated people. He accepted that the appellant had done the bidding of others and that had he not been apprehended he may well have done so again. However, he said that it was in the appellant's interest to commit the offences to secure a supply of drugs for himself. The fact that the appellant had a drug habit was not mitigatory and did not make his offending less serious.[20]
[20] ts 12 - 13.
The sentencing judge recognised that the appellant was capable of leading a lawful life. His criminal record included a number of significant periods in which he had been offence-free and had been able to engage in a meaningful and supportive relationship and productive work. However, his Honour accepted that matters personal to the appellant, whilst not irrelevant, had to be given less weight in respect of offences of this nature.[21]
[21] ts 13 - 14.
The sentencing judge then imposed the individual sentences referred to earlier. His Honour said that he had taken into account the totality principle by making the sentence in respect of count 2 concurrent. However, he said that count 3 was separate offending and that the illicit supply of drugs required the use of mobile telephones and other electronic devices. For those reasons he imposed a cumulative sentence for count 3.[22]
[22] ts 14 - 15.
Appellant's submissions
The appellant referred to two unidentified cases in which he says sentences were imposed that are inconsistent with the total sentence imposed on him. He said that one of those cases related to an offence of introducing 56 g of heroin into a detention centre and the other related to an offence of possessing 208 g of methylamphetamine and a quantity of cash. No case references were provided and it is impossible to know what the full circumstances of those matters were or whether they are meaningfully comparable with the appellant's case.[23]
[23] Appellant's submissions, page 1.
The appellant also submitted that the fact that he had pleaded guilty and that he was acting under duress were not sufficiently taken into account in the sentence. He states he was intimidated and pressured into packaging the clip seal bags with methylamphetamine and cannabis and then told to get into a car and was taken to the detention centre where he had to throw two tennis balls over the fence. These submissions go well beyond the submissions made by defence counsel at the sentencing.[24]
[24] Appellant's submissions, pages 1 - 2.
Merits of the appeal
The relevant principles relating to appeals against sentence where there is a claim that the total effective sentence breaches the totality principle are well established. Those principles have been stated many times and have been conveniently summarised in Kabambi v The State of Western Australia.[25] It is unnecessary to repeat them.
[25] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The major sentencing considerations for offences of dealing or trafficking dangerous drugs of addiction are general and personal deterrence. The weight of the drugs 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 a subsidiary consideration but they are not completely irrelevant.[26]
[26] Gaskell v The State of Western Australia [2018] WASCA 8 [128].
The maximum penalties for the offences are as follows:[27]
(1)count 1, attempt to supply a prohibited drug (methylamphetamine) (being less than a trafficable quantity) - 25 years' imprisonment and/or a fine of $100,000;
(2)count 2, attempt to supply a prohibited drug (cannabis) - 10 years' imprisonment and/or a fine of $20,000; and
(3)count 3, failure to comply with a data access order without reasonable excuse - 5 years' imprisonment.
[27] Misuse of Drugs Act, s 34(1)(aa), s 34(2)(a); Criminal Investigation Act, s 61(2).
As to the seriousness of the offences, the amount of methylamphetamine was significant (and only slightly less than the trafficable quantity, which would have attracted a higher maximum penalty). The fact that the appellant also provided a quantity of cannabis is also relevant. It shows that the appellant was willing and able to supply different types of drugs.
That this was an attempt to introduce drugs into a detention centre was a significant aggravating factor. The proper management and control of prisons and detention centres depends upon maintaining good discipline and order. There is an obvious risk that illicit drugs will undermine that management and control and create the risk of violence and further offending within a confined environment. The appellant only failed in his efforts due to the vigilance of the security guards.
The appellant's role was not limited to merely throwing the drugs over the detention centre fence. The presence of his DNA on the packaging inside the tennis balls indicated that he was involved in the packaging exercise. When police executed the search warrant another tennis ball packaged in a similar way and containing cannabis and suboxone strips was found. Furthermore, the appellant, on his own admission, had engaged in similar conduct in the past.
The appellant's claim that he was acting under duress was not advanced as being a possible defence to the offending. Defence counsel at the sentencing proceedings put it on the basis that the appellant was pressured to commit the offence in order to secure a supply of drugs for himself. As the sentencing judge correctly concluded, whilst the appellant's drug addiction made him more vulnerable to being used in such a way it was not in itself a mitigating factor. That finding has not been challenged on appeal.
The failure to comply with the data access order was itself a serious offence. The sentencing judge was correct to view this as separate offending deserving of additional punishment. This court has noted in the past that unless those who fail to comply with data access orders receive some additional punishment there will be no effective incentive to comply.[28]
[28] The State of Western Australia v Doyle [2017] WASCA 207 [42]. See also Chadburne v The State of Western Australia [2017] WASCA 216 [69]; Slade v The State of Western Australia [2019] WASCA 65 [50].
Contrary to the appellant's submission, the comparable cases do not support a conclusion that the sentence imposed on the appellant was disproportionate to his overall offending. The appellant did not refer to any cases dealt with in this court in support of his argument. We have had regard to the following cases Cochrane v The State of Western Australia;[29] The State of Western Australia v Stocker;[30] HSH v The State of Western Australia;[31] Wade v The State of Western Australia;[32] Turner v The State of Western Australia;[33] Donaldson v The State of Western Australia;[34] Nguyen v The State of Western Australia;[35] Donaldson v The State of Western Australia;[36] and O'Malley v The State of Western Australia.[37] The quantities of drugs and the role of the offenders in those cases differed. The quantity of the drugs is not the only factor that must be considered. None of those cases involved offending with the serious aggravating factor of being an attempt to introduce drugs into a detention centre. When the particular facts of this case are taken into account, the total sentence imposed on the appellant was not inconsistent with the cases referred to.
[29] Cochrane v The State of Western Australia [2021] WASCA 5.
[30] The State of Western Australia v Stocker [2022] WASCA 178.
[31] HSH v The State of Western Australia [2023] WASCA 113.
[32] Wade v The State of Western Australia [2022] WASCA 68.
[33] Turner v The State of Western Australia [2021] WASCA 132.
[34] Donaldson v The State of Western Australia[2020] WASCA 193.
[35] Nguyen v The State of Western Australia[2019] WASCA 56.
[36] Donaldson v The State of Western Australia [2018] WASCA 143.
[37] O'Malley v The State of Western Australia [2021] WASCA 8.
Having regard to the maximum penalties for the offences, the seriousness of the offending conduct taken as a whole, the personal circumstances of the appellant and sentences imposed in broadly comparable cases, it is not reasonably arguable that the overall total effective sentence of 4 years and 6 months' immediate imprisonment is plainly unreasonable or unjust.
Conclusion
The ground of appeal has no reasonable prospect of succeeding. In these circumstances leave to appeal must be refused and the appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ID
Research Associate to the Hon Justice Hall
4 OCTOBER 2023
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