Shepherd v The State of Western Australia
[2023] WASCA 17
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SHEPHERD -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 17
CORAM: BUSS P
BEECH JA
HEARD: 20 JANUARY 2023
DELIVERED : 3 FEBRUARY 2023
FILE NO/S: CACR 106 of 2022
BETWEEN: LEANN NICOLE SHEPHERD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEWART DCJ
File Number : IND 2051 of 2020
Catchwords:
Criminal law and sentencing - Offence of possessing methylamphetamine with intent to sell or supply - Whether sentencing judge erred in making specific findings
Legislation:
Nil
Result:
Leave to appeal refused on all grounds
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | H Sklarz |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Sklarz Lawyers |
| Respondent | : | No appearance |
Case(s) referred to in decision(s):
Nil
JUDGMENT OF THE COURT:
Introduction
The appellant seeks leave to appeal against her sentence of 4 years' immediate imprisonment. The sentence was imposed following the appellant's conviction, on her plea of guilty, of possessing 55.1 g of methylamphetamine with intent to sell or supply it to another.
The appellant advances three grounds of appeal. Ground 1 asserts that the sentencing judge erred in finding that the vast majority of the methylamphetamine was for commercial distribution. Ground 2 asserts that the judge erred in characterising the appellant as a 'mid‑level dealer'. Ground 3 contends that, by reason of those errors, the judge erred in imposing a manifestly excessive sentence.
The appellant's grounds of appeal are entirely without merit. The allegedly erroneous findings the subject of grounds 1 and 2 were findings that were invited by the prosecution and were expressly conceded by the appellant's counsel in written submissions before the sentencing judge. Moreover, both findings were amply justified by the material before her Honour. Ground 3 is premised upon the success of the earlier grounds and, so, it fails with the failure of grounds 1 and 2.
Consequently, leave to appeal on each ground must be refused and the appeal must be dismissed.
Our more detailed reasons for these conclusions follow.
Background
The appellant was charged on an indictment alleging offences by four people: the appellant, Ms Amelia Kreinbihl, Mr Robert O'Bryan and one other.
In March 2022, Mr O'Bryan pleaded guilty and the State discontinued in relation to the other. The trial was programmed to proceed only as against Ms Kreinbihl and the appellant.
The matter was listed for a trial commencing on 17 May 2022. Owing to some COVID-related delays, the trial's commencement was adjourned to 25 May 2022, with a s 31A application to be heard and determined the day before that.
On 24 May 2022, the day on which the s 31A application was listed, the appellant pleaded guilty. On 31 May 2022, Ms Kreinbihl was convicted by a jury.
On 29 July 2022, both the appellant and Ms Kreinbihl were sentenced.
In June 2022, the State filed an outline of submissions in relation to sentencing. The appellant's counsel filed sentencing submissions in response a few days before the sentencing hearing. We will say more about these submissions later in these reasons.
The facts of the offending
The judge made the following findings of fact, observing that they were applicable both to the appellant and to Ms Kreinbihl.[1]
[1] ts 487.
On 12 March 2019, the appellant, Ms Kreinbihl and the appellant's sister drove from Bunbury to the house of Ms Kreinbihl's boyfriend, Mr O'Bryan, in Perth.[2] Ms Kreinbihl handed cash to Mr O'Bryan, who supplied Ms Kreinbihl with a package containing 55.1 g of methylamphetamine with a purity of 78%.[3]
[2] ts 487.
[3] ts 488.
Ms Kreinbihl smoked some of the methylamphetamine and then handed the package to the appellant, who placed it in her bra. The appellant, Ms Kreinbihl and the appellant's sister then set off to drive back to Bunbury. The appellant drove the car.[4]
[4] ts 488.
Police pulled the car over. Before the car was pulled over, the appellant pulled the package out of her bra and put it in the centre console of the car. Ms Kreinbihl yelled, 'You can't put it in there,' and the appellant's sister picked up the package and put it in her bra.[5] When the appellant's sister was taken to the police station, she told the police she had the package.
[5] ts 488.
Police searched Mr O'Bryan's house and found several items of interest, including 18.7 g of methylamphetamine in a clip seal bag, a roll of the same type of dishcloth that was wrapped around the package containing the 55.1 g of drugs, and a key to a large toolbox. Upon unlocking the toolbox, police found three packages, each containing 99.2 g of methylamphetamine matching the purity of the drugs the subject of the offending relevant to this appeal.[6]
[6] ts 488 - 489.
The judge found that both the appellant and Ms Kreinbihl were in joint possession of the 55.1 g of methylamphetamine with intent to sell or supply it to another. The judge found that the text messages in exhibit 11 at Ms Kreinbihl's trial, exchanged between the appellant and Ms Kreinbihl, were indicative of the appellant and Ms Kreinbihl working together to distribute methylamphetamine for sale.[7]
[7] ts 489.
Personal circumstances
The appellant was 44 years old at the time of sentencing. She was born in Bunbury as one of seven siblings. She separated from her husband 12 years ago. She is the primary carer for three of her children and her wheelchair-bound mother; two of her children have autism and one is legally blind.[8]
[8] ts 497 - 498.
The appellant was educated to year 12 and has completed tertiary qualifications as an educational support officer. Upon leaving school, the appellant worked consistently until 2015, when she became her mother's primary carer.[9]
[9] ts 498.
The judge observed that, according to the appellant's pre-sentence report, the appellant initially said that she had never used methylamphetamine, then said that she used it recreationally, and then said that she used it almost every day in the lead-up to her arrest. The judge accepted, as submitted by the appellant's lawyer, that she had a methylamphetamine addiction and resorted to distributing the drug to finance that addiction.[10]
[10] ts 498.
The appellant has prior convictions for drug-related matters, but she had never been required to serve a term of imprisonment.
The judge noted that, according to the pre-sentence report, the appellant had outstanding treatment needs relating to drug use, lack of consequential thinking, and lack of problem-solving skills. The judge had read references from the appellant's mother, two of her sons, two of her friends, her peer support worker, and her general practitioner.[11]
[11] ts 498 - 499.
Sentencing remarks
The judge found that, having regard to the evidence, it could safely be inferred beyond reasonable doubt that the vast majority of the methylamphetamine found in the joint possession of the appellant and Ms Kreinbihl was for commercial distribution.[12] The appellant seeks to challenge this finding by ground 1.
[12] ts 489, 497.
The judge observed that the text messages between Ms Kreinbihl and the appellant, evidencing their prior dealing, did not mean that they were to be sentenced for such prior dealing. Rather, it demonstrated that the offending for which the appellant was to be sentenced was not an isolated incident.[13]
[13] ts 489 - 490.
The judge identified serious features of the appellant's offending, referring to the quantity of methylamphetamine and the finding that the vast majority of it was for commercial distribution. The judge described the appellant as a mid‑level dealer, which the appellant seeks to challenge by ground 2.[14]
[14] ts 497.
The judge discounted the sentence by 10% on account of the plea of guilty, pursuant to s 9AA of the Sentencing Act1995 (WA). The judge identified other matters in mitigation: The appellant had engaged with support groups, and she was the primary caregiver for her mother and three of her children, two of whom have autism and the other of whom is legally blind.
The judge accepted, as submitted by the appellant's counsel, that the appellant resorted to the distribution of methylamphetamine to finance her drug use.[15]
[15] ts 498.
The judge imposed a term of 4 years' imprisonment. Her Honour found that the offending was too serious to permit the suspension of the term. The judge ordered eligibility for parole and that the sentence commence the preceding day, on 28 July 2022.
Grounds of appeal
Following the abandonment of one ground in the course of argument, the appellant advances the following three grounds of appeal:
1.The sentencing judge erred in finding that the vast majority of the methylamphetamine was for commercial distribution.
2.The sentencing judge erred in characterising the appellant as a 'mid‑level dealer'.
3.By reason of the above errors, the sentencing judge erred in imposing a sentence that was manifestly excessive in the circumstances.
Ground 1: 'vast majority for commercial distribution'
The appellant submits that the evidence before the sentencing judge was contrary to this finding. In this regard, the appellant points to the following submissions and concessions by the prosecutor at sentencing:
(1)The drugs were sold to fund the appellant's own drug use.[16]
(2)The appellant was not enriching herself from the sale of drugs.
(3)The drugs were to be shared between the appellant and another to support a drug addiction.[17]
(4)The appellant was using the drugs as a coping mechanism during very difficult times.
(5)As a result of her imprisonment, the appellant's family was going to incur significant hardship.[18]
[16] Appellant's submissions [9], citing ts 484.
[17] Appellant's submissions [9], citing ts 484.
[18] Appellant's submissions [9], citing ts 485.
To say, as her Honour did, that the vast majority of the methylamphetamine was for commercial distribution was simply to say that the vast majority of it would be sold. This was the subject of an express concession by the appellant. Paragraph 8(d) of the State's outline of sentencing submissions invited the court to find that the vast majority of the 55.1 g the subject of the count was for sale. Paragraph 3 of the appellant's submissions stated that the findings of fact asserted by the State at par 8 of its submissions must be conceded.
In any event, bearing in mind the quantity and purity of the methylamphetamine the subject of the charge, the statement that the vast majority of it was for sale was amply justified. The fact that the appellant was selling the drugs to fund her own use and, in that sense not enriching herself, is beside the point. It does not undermine or contradict the judge's finding that the vast majority of the drug was for sale.
For these reasons, ground 1 is entirely without merit.
Ground 2: 'mid‑level dealer'
The appellant submits that she was acting as a low-level dealer and user.[19] The appellant submits that there was no evidence that she was operating a commercial drug-dealing venture. The appellant posits that the expected evidence indicative of a mid-level dealer would include large quantities of cash, weapons, clip seal bags and/or tick-lists - none of which was found at the appellant's house.[20]
[19] Appellant's submissions [10].
[20] Appellant's submissions [11].
Again, the appellant's submissions ignore what occurred at the proceedings before the sentencing judge.
The State's outline of submissions before the sentencing judge identified factors marking the seriousness of the offending. In par 16(d) of its sentencing submissions, the State referred to the nature and level of the offenders' participation in the drug distribution hierarchy, which the State submitted was as mid‑level dealers. The State submitted that this characterisation was demonstrated by the quantity and purity of the methylamphetamine and the text messages showing that the two offenders were working together to distribute the drug for sale.
Again, the appellant's counsel before the sentencing judge expressly conceded that this was so. The appellant's submissions to the sentencing judge accepted that, 'It cannot be argued that [the appellant] is a low-level dealer,' and conceded that she was a mid‑level dealer.[21]
[21] Appellant's sentencing outline, 26 July 2022, [3(d)].
In any event, that characterisation was amply justified by the matters referred to in the State's submissions.
For these reasons, ground 2 is entirely without merit.
Ground 3
As already noted, ground 3 assumes the success of the preceding grounds. Consequently, ground 3 fails with the failure of the other two grounds.
In any event, although ground 3 is not advanced in support of an assertion of implied error, there is no basis for any such argument. Bearing in mind the circumstances of the case and the judge's findings, it could not be reasonably argued that the term of 4 years' immediate imprisonment was manifestly excessive.
Conclusion
For these reasons, we make the following orders:
1.Leave to appeal on each ground of appeal is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AE
Associate to the Honourable Justice Beech
3 FEBRUARY 2023
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