Skinner v The State of Western Australia - [2012] WASCA 99

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SKINNER -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 99

CORAM: PULLIN JA
BUSS JA
MAZZA JA

HEARD: 8 MARCH 2012

DELIVERED : 7 MAY 2012

FILE NO/S: CACR 144 of 2011

BETWEEN: GRAHAM STEVEN SKINNER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'NEAL DCJ
File No  :IND 1475 of 2010

Catchwords:

Criminal law - Sentence - Whether total sentence was manifestly excessive

Legislation:

Sentencing Act 1995 (WA), s 8(5)

Result:

Application for extension of time dismissed

Category: D

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr B Fiannaca

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)

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

Abela v The Queen [2002] WASCA 279
Ashworth v The State of Western Australia [2006] WASCA 36
Bellissimo v The Queen (1996) 84 A Crim R 465
Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152
Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49
Coleski v The State of Western Australia [2008] WASCA 260
Drake v The State of Western Australia [2006] WASCA 209
Hobby v The State of Western Australia [2009] WASCA 108
Lim v The Queen [1999] WASCA 296
McKeagg v The Queen [2006] WASCA 26; (2006) 162 A Crim R 51
MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149
Nguyen v The State of Western Australia [2007] WASCA 114
Reid v The State of Western Australia [2012] WASCA 23
Roffey v The State of Western Australia [2007] WASCA 246
Rumenos v The State of Western Australia [2011] WASCA 59
Swains v The State of Western Australia [2007] WASCA 251
The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119
The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302
The State of Western Australia v Hyder [2011] WASCA 256
The State of Western Australia v Jenkin [2011] WASCA 171
The State of Western Australia v Toothill [2007] WASCA 236
The State of Western Australia v Tran [2008] WASCA 183
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
TXT v The State of Western Australia [2012] WASCA 28
Wimbridge v The State of Western Australia [2009] WASCA 196
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Woods v The Queen (1994) 14 WAR 341

PULLIN JA: This is an application for an extension of time within which to appeal. There are two grounds of appeal and if an extension is granted, then an order made by Mazza J granting leave to appeal on ground 1 will be effective. The application for leave to appeal on ground 2 was referred to the hearing of this appeal.
The appeal is against sentence.
On 24 June 2011, the appellant was sentenced by O'Neal DCJ in the District Court in relation to drug and drug‑related indictable offences and sentenced also, on the same day, to a further 10 offences disclosed in a notice under s 32 of the Sentencing Act 1995 (WA). The annexure to these reasons shows relevant information about all of these offences including the sentence imposed for each offence, whether the sentencing judge made the sentence concurrent or cumulative on other sentences and the maximum penalty available for each of the offences.
The indictable offences consisted of:
(a)22 counts of offering to sell/supply cannabis;
(b)five counts of offering to sell/supply MDMA;
(c)eight counts of offering to sell/supply methylamphetamine;
(d)one count of receiving stolen property;
(e)three counts of supplying cannabis;
(f)six counts of supplying methylamphetamine;
(g)two counts of aggravated burglary;
(h)one count of attempting to manufacture methylamphetamine; and
(i)two counts of manufacturing methylamphetamine.
The convictions on the s 32 notice were:
(a)possession of cannabis;
(b)possession of a smoking utensil;
(c)possession of unlicensed ammunition;
(d)breach of bail;
(e)possession of an unlicensed firearm;
(f)possession of stolen or unlawfully obtained property; and
(g)driving without authority.
The offences in relation to supplying or offering to supply drugs occurred over a number of days in June and July 2009. The other offences all occurred in June or July 2009 with the exception of counts 49 and 50, being offences of manufacturing methylamphetamine. Those two offences occurred in February and May 2010. The offence of attempting to manufacture methylamphetamine occurred on 10 July 2009. The offences in the s 32 notice were committed on various dates, the first of which occurred early in December 2009 and the last of which occurred in May 2010.
The statement of material facts was presented by the prosecutor and some issue was taken with some factual aspects of the charges, the most important of which was a claim that the appellant's role in relation to the charges of manufacturing methylamphetamine was merely to assist others who were manufacturing the substance at his property. As a result, there was a trial of issues to determine whether the appellant was a, or the, principal offender in manufacturing the drugs or whether he only played the limited role that he claimed.
The evidence revealed that on 10 July 2009 there was a raid on the appellant's property at Armadale, where police found a collection of paraphernalia and material used to manufacture methylamphetamine. The appellant gave an explanation to the police that he found this paraphernalia in crates when he stopped by the side of the road to relieve himself, saw that it 'was something to do with drugs', and took it home, not wanting to leave it in the bush in case 'kiddies found it'. The sentencing judge described this explanation as 'bunkum', as it proved to be. At the hearing before the sentencing judge, the appellant on oath abandoned this explanation and instead said that he stole the crates with the drug making material thinking there were drugs in it and that later on the same day police raided his house and found the material. The sentencing judge said this was only 'slightly less ridiculous' than the explanation given to the police. The sentencing judge made findings in the following terms:
But I have no doubt, much less any reasonable doubt, that the equipment and material that you possessed on 10 July 2009 at your house was possessed by you as a principal in the venture to manufacture, perhaps more correctly here, attempt to manufacture methylamphetamine. That, in my view, is the only inference reasonably available from all the evidence I have referred to.
This finding related to the offence of attempting to manufacture methylamphetamine.
Following the police raid on 10 July 2009, the appellant was arrested and charged and eventually placed on bail to appear at the Armadale Magistrates Court on 8 January 2010. The appellant failed to appear and a warrant was issued for his arrest and the police returned to his house on 27 February 2010.
The police there found that the appellant again had equipment and material necessary to manufacture methylamphetamine. This time it was set up and manufacturing was in progress. The only persons present in the house were the appellant and his girlfriend. When the police arrived, part of the apparatus in the backyard was still operating. Inside a refrigerator was a glass container full of a cloudy liquid that was subsequently tested and found to contain methylamphetamine. The appellant was charged with manufacturing methylamphetamine. Surprisingly, he was again admitted to bail.
As might be expected, by this time the police had a keen interest in the appellant's activities and on 31 May 2010, two constables on patrol went to the corner of his yard and saw the appellant walking from inside the house with a container. He was moving as if he were carrying liquid and did not want to spill it. A search warrant was obtained by the police and it was executed on the same day. Once again the police discovered equipment and material for the manufacture of methylamphetamine. The laboratory was in operation. Forty four litres of waste product were found on the premises. The appellant was arrested and charged again with manufacturing methylamphetamine and this time did not get bail. An experienced police officer described the scale of the manufacturing process as 'huge' in comparison to other laboratories he had seen.
The first time the police went to the appellant's house (10 July 2009), they found a replica handgun, loaded with a round of live .22 calibre ammunition and 38 rounds of ammunition in the bedside table. He was charged with possession of the unlicensed ammunition. After being arrested in July 2009, he then went out and purchased a real gun, an unlicensed .22 calibre Mossberg rifle, which was found by the police when they executed the search warrant on 27 February 2010. He was charged with possession of the unlicensed rifle.
The appellant testified that in relation to the charges of manufacturing (as opposed to the attempt to manufacture offence) the process was carried out by 'Andy' and 'Tom' and that he was merely aiding them.
The sentencing judge said:
I don't accept … that your role was limited to even that of aiding. The only reasonable inference in the circumstances … is that you were fully involved in the process of manufacture and that if on the second and third occasions others were involved at all, you were a joint principal or the principal offender involved.
All sentences imposed were ordered to be served concurrently except for counts 48 ‑ 50. The sentence on count 48, which was 18 months' imprisonment on the attempt to manufacture methylamphetamine, was made cumulative upon count 16. Count 16 was the burglary offence on which the appellant was sentenced to 1 year imprisonment. Count 49, on which he was sentenced to a total of 2 years 6 months' imprisonment for manufacturing, was made cumulative upon count 48. In relation to count 50, the sentence of 3 years for the manufacture of methylamphetamine was made cumulative upon count 49. This resulted in a total effective sentence of 8 years' imprisonment. The appellant was made eligible for parole.
The burglary offence (count 16) was a burglary on a chemist shop with a view to obtaining drugs for the appellant's illicit manufacturing process. This was a bungled crime because the wrong drugs were stolen. He then carried out another burglary to secure the correct drugs he required for the manufacturing process (count 41).
The appellant, who was in his mid‑30s, possessed a lengthy criminal history that began in the Children's Court. He had a happy childhood. He began experimenting with cannabis when he was 14. He commenced methylamphetamine use in his early 20s. He used it heavily at times but for lengthy periods he did not consume the drug. Leading up to the offences under consideration, the appellant became unemployed and slipped back into drug use and then into manufacturing and selling drugs.
The main mitigatory factors were a fast‑track plea of guilty and some cooperation with authorities. The cooperation involved providing the names of some other persons involved in the drug trade. However, the names provided by the appellant were, with one exception, already known to the police. They included one man who was already a sentenced prisoner for a drug offence. The one name not known to the police was passed onto another part of the Police Service, but that man was arrested for another offence. No arrest arose from any information the appellant provided. The respondent and the sentencing judge accepted that while the effort to offer names was genuine, the information had little value. The sentencing judge said that he would take cooperation into account in mitigation, but he did not give it 'particularly great value'. As to the plea of guilty, the sentencing judge observed that conviction was inevitable, there was no true remorse and as a result, any discount had to be at the lower end of the usual range.
There is one aspect of the sentencing judge's remarks which requires explanation. This is in relation to the following statement:
The State does not ask me to find as an aggravating feature here that there was a commercial aspect to your manufacturing efforts. Given your demonstrated involvement in drug trafficking at a retail level, including the sale of methylamphetamine and the sheer scale of your manufacturing effort, that seems a charitable position for the State to take. Nonetheless, I do not for the purposes of sentencing you have regard to any element of commerciality in your efforts to produce methylamphetamine.
Elsewhere in the sentencing judge's remarks, his Honour recorded the fact that the appellant acknowledged that his 'motivation for offending was [inter alia] financial gain'. The question arose during the hearing of the appeal about how these remarks were to be reconciled. The sentencing judge remarked that the appellant had 'sought to explain' the concession about being motivated by financial gain.
Counsel for the appellant said that this explanation was to be found in the transcript of the hearing before the sentencing judge. At ts 152, the appellant was asked by his counsel what was meant by 'financial gain'. The appellant answered:
mean [sic] that I didn't have to pay for drugs that I received because I couldn't afford to pay for drugs. I was getting free drugs and that wasn't like as if I was getting and selling, it was just for myself.
All right, so that's - that's what you mean by financial gain‑‑‑Yeah.
That does not seem to be any explanation for the appellant's concession that his motivation for the offences was financial gain. The explanation for the sentencing judge's remark quoted above comes from the written submissions of the prosecutor which were before the sentencing judge. In these submissions the prosecution stated that in June/July 2009, the appellant's financial situation was desperate. He was on the dole and was slowly selling his property when he needed cash. He was earning $456 a fortnight on the dole but was using up to half a gram methylamphetamine a day, costing on average around $200 to $300 but up to $500 a day depending on the purity. The drugs sometimes cost thousands of dollars each week. The prosecutor's submissions continued (par 82), by pointing out that the appellant must have had some other source of income to pay for his drugs, because his drug habit would have cost him approximately $16,000 between July 2009 and February 2010. On the evidence, the only way for the appellant to pay for his drug habit was to manufacture the drug himself.
Then par 100 of the prosecution's submissions read:
As argued by the State, the offender had a massive drug problem and the drug manufacturing appeared to be his only way to meet that addiction. It is clear that the offender was manufacturing for his own use. It is not clear whether he had a commercial motive beyond creating the drug to pay for his own habit and the State does not seek to establish this as an aggravating factor. But the fact that the offender manufactured for his own use does not mitigate the offence or warrant a lesser punishment.
Elsewhere, the State's written submissions to the sentencing judge read (par 92):
Given the quantities of drugs involved and the other offences such as manufacturing the drug he could not be classed as a low level dealer but would properly be classed as a mid‑level dealer for commercial gain in the sense that dealing enabled him to purchase drugs for his own addiction.
What is clear from this information is that although the appellant was feeding his own habit, he was also selling drugs. He was akin to a shop for illicit drugs. He supplied cannabis, MDMA and methylamphetamine. He also manufactured methylamphetamine.
Given the scale of the operation, it was remarkable that the State was prepared to make the concession that there was no 'commerciality'. However, the words 'commerce' and 'commercial' have different shades of meaning. It is quite clear that the appellant did sell or supply drugs and he did so, on his own admission, for financial gain. Whether the financial gain he sought was merely to pay off an accumulated debt as a result of his drug habit, or to pay for the drugs he was using, does not much matter in this case for reasons mentioned below.

Ground 1

Ground 1 read:
The learned Judge erred in imposing a total effective sentence that infringed the first limb of the totality principle, having regard to the overall criminality involved in the various offences viewed in their entirety and all the circumstances of the case including those referable to the Appellant and, in particular, his assistance to the authorities.
The first limb of the totality principle is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341; Roffey v The State of Western Australia [2007] WASCA 246 [24].
The appellant not only accepts that the individual sentences were appropriate, but also acknowledges that a sentence of 8 years' imprisonment for the offences would, under 'normal circumstances', 'arguably be appropriate' (AB 26). However, the appellant submits that his efforts to assist the authorities, the actual cooperation he afforded the police and his plea of guilty should have produced a lower sentence. However, because it is not possible to say what allowance the sentencing judge made for the appellant's cooperation with the authorities or his plea of guilty, it is not possible to assert that there was no reduction from a sentence which might otherwise have been imposed if there had been no cooperation and no plea of guilty. This ground in effect contends that the total sentence is manifestly excessive.
To assess this submission it is necessary to bear in mind the appellant's concession that all of the individual sentences were appropriate sentences. It was entirely appropriate, in applying the first limb of the totality principle, for the sentencing judge to make all the sentences concurrent except for the sentences on counts 48 ‑ 50. Count 16 was the burglary offence. The offence of attempting to manufacture methylamphetamine (count 48) was made cumulative on count 16. That was appropriate. The sentencing judge correctly noted that having been admitted to bail, the appellant committed the offence of manufacturing in the same premises. This warranted the offence for the first of the manufacturing charges (count 49) being made cumulative on count 48. After the appellant was released on bail again, he simply set up and began manufacturing again. This warranted the accumulation of the sentence in relation to that charge (count 50). A sentence of 8 years was a proper reflection of the total criminality involved in the various offences after taking into account the circumstances of the case and matters personal to the appellant. The circumstances included the fact that the appellant's motive for the offences included financial gain even if the primary motive was a desire to feed his own habit. He may not have been originally motivated to manufacture for commercial purposes but once he was underway, he manufactured for financial gain. He was a persistent offender and the circumstances suggest that personal deterrence was an important factor in this case, which would have justified a higher sentence than may have been otherwise expected. The lack of utility in relation to the appellant's cooperation and the fact that his early plea of guilty did not reflect remorse, justified a discount at the lower end of the usual range. The total sentence of 8 years was reasonable.

No case referred to by the appellant involved three counts of manufacturing and attempting to manufacture methylamphetamine. There are some cases involving multiple offences of manufacturing. Two early examples are Lim v The Queen [1999] WASCA 296 and Abela v The Queen [2002] WASCA 279. In those cases, total sentences of 6 years and 8 years were imposed. A number of matters need to be mentioned in relation to those early cases. First, in those cases the offenders were arrested once and charged with the multiple counts. The present case is remarkable for the persistent way that the appellant returned to manufacturing. After he had been arrested on the first and second occasions, he still returned to set up manufacturing again. As mentioned already, personal deterrence looms large in this case. Secondly, the sentences in those two early cases were lenient, particularly when the sentences are reduced by one‑third to make them comparable. Thirdly, it has become obvious in recent times that the offence of manufacturing methylamphetamine has become more prevalent and there is growing recognition that the process of manufacture is dangerous to the participants, to the police, members of the public and to the families of those engaged in the process. See Rumenos v The State of Western Australia [2011] WASCA 59 [35] ‑ [36] (Mazza JA). The fact that the offences are more prevalent and there is a recognition of the danger means that sentences for manufacturing methylamphetamine must be firmed up to provide the requisite general deterrence. There is no merit in ground 1.
Ground 2 alleged that the sentencing judge failed to disclose the reduction afforded to the appellant for his cooperation with the authorities contrary to s 8(5) of the Sentencing Act.Counsel for the appellant at the hearing however, abandoned this ground, recognising that the appellant had not 'undertaken' to provide assistance to the authorities. It is only in

those circumstances that s 8(5) requires the extent of the reduction in sentence to be stated by the sentencing judge. Ground 2 was properly abandoned.

There being no merit in ground 1, there is no justification for extending the time in which to appeal. The appropriate order therefore is that the application for an extension of time should be dismissed.
BUSS JA: On 17 December 2010, the appellant was convicted in the District Court, on his fast‑track pleas of guilty, of 50 counts in an indictment.
On 24 June 2011, O'Neal DCJ imposed sentence on the 50 counts and also on 10 charges in a notice pursuant to s 32 of the Sentencing Act 1995 (WA).
The total effective sentence was 8 years' imprisonment. His Honour made a parole eligibility order. The total effective sentence was backdated to commence on 6 June 2010.
The appellant has applied to this court for an extension of time to appeal against sentence.

The application for an extension of time

The last date for the appellant to appeal against sentence was 15 July 2011. He did not file his appeal notice until 8 September 2011.
The applicable principles governing the exercise of this court's discretion to extend time are set out in Wimbridge v The State of Western Australia [2009] WASCA 196.
The appellant has filed and served two affidavits in support of his application. They are an affidavit of his solicitor, Peter Ben Cassidy, sworn 8 September 2011 and an affidavit of the appellant sworn 17 October 2011. The State does not oppose an extension of time.
On 23 October 2011, Mazza J referred the application to the hearing of the appeal.
Whether an extension should be granted depends, in the circumstances of this case, on the merits of the ground of appeal.

The ground of appeal

The ground of appeal alleges that the total effective sentence of 8 years' imprisonment infringed the first limb of the totality principle.
Counsel for the appellant submitted that the first limb of the totality principle was infringed 'having regard to the overall criminality involved in the various offences viewed in their entirety and all the circumstances of the case including those referable to the appellant and, in particular, his assistance to the authorities'.
On 23 October 2011, Mazza J granted leave to appeal on this ground. The grant of leave must be understood as a conditional grant, subject to this court allowing the application for an extension of time to appeal.
Originally, the appellant also relied on another ground, but it was expressly abandoned by his counsel at the hearing.
The appellant does not challenge any of the individual sentences imposed on him.

The background facts and circumstances

The background facts and circumstances are set out in the reasons of Pullin JA, with which Mazza JA has expressed his agreement.
I will not repeat the background facts and circumstances, except to the extent necessary to explain my reasons.

Details of the relevant offences

The counts in the indictment alleged in essence that:
(a)in June and July 2009, the appellant supplied, or offered to sell or supply, a prohibited drug, namely cannabis, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the Act) (a total of 25 counts, being counts 1 ‑ 9, 13, 14, 18, 19, 22, 24, 25, 27, 29, 30, 32, 33, 39, 42, 45 and 47);
(b)in June and July 2009, the appellant supplied, or offered to sell or supply, a prohibited drug, namely MDMA, to another, contrary to s 6(1)(c) of the Act (a total of five counts, being counts 10, 15, 17, 26 and 36);
(c)in June and July 2009, the appellant supplied, or offered to sell or supply, a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the Act (a total of 14 counts, being counts 11, 20, 21, 23, 28, 31, 34, 35, 37, 38, 40, 43, 44 and 46);
(d)between 24 June 2009 and 11 July 2009, the appellant received Sudafed cold and flu medication, the property of pharmacists trading as Gregs Discount Chemist, which, to his knowledge, had been stolen, contrary to s 414 of the Criminal Code (WA) (the Code) (count 12);
(e)on 25 June 2009, the appellant, while in the place of pharmacists trading as Gregs Discount Chemist without their consent, committed the offence of stealing while in company with others, contrary to s 401(2) of the Code (count 16); and
(f)on 3 July 2009, the appellant, while in the place of pharmacists trading as Midland Drive-in Pharmacy without their consent, committed the offence of stealing while in company with others, contrary to s 401(2) of the Code (count 41).
On 10 July 2009, the appellant's house in the Perth suburb of Armadale was searched by the police. Equipment and chemicals were found. The appellant was arrested and charged with attempting to manufacture a prohibited drug, namely methylamphetamine, contrary to s 6(1)(b) read with s 33(1) of the Act, being count 48 in the indictment.
Some time after he was arrested, the appellant was released on bail. He was required to appear in the Magistrates Court at Armadale on 8 January 2010. The appellant failed to appear on that date.
On 27 February 2010, the appellant's house was again searched by the police. Equipment and chemicals were found. The appellant was arrested and charged with manufacturing a prohibited drug, namely methylamphetamine, contrary to s 6(1)(b) of the Act, being count 49 in the indictment.
Surprisingly, after he was arrested on this occasion the appellant was, once more, released on bail.
On 31 May 2010, the appellant's house was again searched by the police. Equipment and chemicals were found. The appellant was arrested and charged with manufacturing a prohibited drug, namely methylamphetamine, contrary to s 6(1)(b) of the Act, being count 50 in the indictment.
Unsurprisingly, on this occasion the appellant was refused bail.
As a result of the search of the appellant's house on 10 July 2009, he was charged with possessing cannabis, possessing a smoking utensil and possessing unlicensed ammunition, being charges 2, 3 and 4 respectively in the s 32 notice.
As a result of the search of the appellant's house on 27 February 2010, he was charged with possessing cannabis, possessing an unlicensed firearm, unlawful possession of that firearm in that it had been stolen in a burglary in December 2009, and possessing a smoking utensil, being charges 5, 7, 9 and 8 respectively in the s 32 notice.
As a result of the search of the appellant's house on 31 May 2010, he was charged with possessing three stolen laptop computers, driving while suspended, and breach of bail, being charges 10, 1 and 6 respectively in the s 32 notice.

The structuring of the total effective sentence

The individual sentence for:
(a)count 16, being an offence of aggravated burglary, was 12 months' imprisonment;
(b)count 48, being an offence of attempting to manufacture methylamphetamine, was 18 months' imprisonment;
(c)count 49, being an offence of manufacturing methylamphetamine, was 2 years 6 months' imprisonment; and
(d)count 50, being an offence of manufacturing methylamphetamine, was 3 years' imprisonment.
The sentencing judge arrived at the total effective sentence of 8 years' imprisonment by accumulating the individual sentences for counts 16, 48, 49 and 50.
The terms of imprisonment imposed for other individual sentences were ordered to be served concurrently with each other and concurrently with the sentence for count 16.

The appellant's personal circumstances

The material before the sentencing judge included a pre‑sentence report and a psychological report from a clinical psychologist, Ms Roxanne Buktenica.
The appellant was aged 37 years at the time of sentencing. He left school when he was 15. He had, in general, a good work history having been employed as a boilermaker, concreter and labourer.
The appellant commenced using cannabis and alcohol when he was 14. He has been a heavy user of cannabis but there have been several periods in his life when he has ceased using it. The appellant began using amphetamines socially when he was 21. Although there was a brief period of heavy use of amphetamines, he stopped using them when he commenced a relationship with his partner of eight years. The appellant commenced using amphetamines again about 18 months before he committed the offences in question. By May or June 2009, he had a raging addiction.
The appellant had an extensive history of prior offending. It commenced with convictions in the Children's Court in 1991. Between 1992 (when he was 18) and 1995 (when he was 21), the appellant accumulated about 28 convictions for a variety of offences including assault occasioning bodily harm, assaulting a public officer, disorderly conduct, and possession of cannabis. He was not imprisoned for any of these offences. In September 1995, the appellant was convicted of possession of amphetamine with intent to sell or supply it to another, for which he was sentenced to 18 months' probation and 150 hours of community service. In 1999, he was convicted of wilful damage and fined. Between 1999 and 2008, he did not commit any offences. During 2008 and 2009, the appellant was convicted of several traffic offences, possession of unlicensed ammunition, and possessing stolen or unlawfully obtained property. None of these offences resulted in a term of imprisonment.

The sentencing judge's sentencing remarks

The sentencing judge found that:
(a)the appellant was, in effect, operating a retail drug business;
(b)the appellant was a principal in the manufacture of methylamphetamine, and was fully involved in the process; and
(c)the manufacture of methylamphetamine at the appellant's house had been ongoing and frequent, and in total between about 126 g and 315 g of high quality methylamphetamine would have been produced.
Some of the counts of supplying, or offering to sell or supply, a prohibited drug involved significant quantities. In particular, count 7 involved 168 g of cannabis, count 8 involved 224 g of cannabis, count 13 involved 392 g of cannabis, count 17 involved 20 ‑ 30 MDMA tablets, count 26 involved 20 MDMA tablets and count 29 involved 566 g of cannabis.
His Honour found in relation to the appellant's cooperation:
(a)the appellant offered the police no information about his own dealings;
(b)the names the appellant provided to the police were, with one exception, already known to the police (including the name of one man who was already a sentenced prisoner for a drug offence);
(c)in the event, the person whose name was unknown to the police was arrested for another offence;
(d)no arrest arose from any information given by the appellant; and
(e)the cooperation did not arise from any genuine remorse.
Nevertheless, his Honour took the appellant's cooperation into account as a mitigating factor.
The appellant's offending is properly characterised as serious. In particular:
(a)the appellant was involved in the manufacture of a significant amount of methylamphetamine;
(b)the appellant was involved in the distribution of MDMA tablets, cannabis and methylamphetamine;
(c)after the appellant was charged with possessing unlicensed ammunition, he was found in possession of an unlicensed firearm;
(d)the appellant's continuing criminal behaviour after he was released on bail demonstrated an open defiance of the law; and
(e)the appellant used and organised other people to commit offences for the purpose of obtaining medication to use in the manufacture of methylamphetamine.
The State submitted to the sentencing judge, in relation to the appellant's efforts to manufacture methylamphetamine, that it was 'not clear whether [the appellant] had a commercial motive beyond creating the drug to pay for his own habit, and the State does not seek to establish this as an aggravating factor'.
The sentencing judge made these observations:
The State does not ask me to find as an aggravating feature here that there was a commercial aspect to your manufacturing efforts. Given your demonstrated involvement in drug trafficking at a retail level, including the sale of methylamphetamine and the sheer scale of your manufacturing effort, that seems a charitable position for the State to take. Nonetheless, I do [not] for the purposes of sentencing you have regard to any element of commerciality in your efforts to produce methylamphetamine (ts 223).
His Honour also said that the appellant had told Ms Buktenica that the motive for his offending was 'financial gain and peer acceptance' (ts 227). His Honour then noted that the appellant had sought to explain this statement by saying that 'by financial gain [he] meant access to free drugs' (ts 227).
Later, his Honour commented:
Dealing for commercial gain as opposed to merely subsidising a habit is an aggravating factor if it's proved. In this case, you were admittedly selling drugs and selling drugs that you didn't have a taste for yourself, such as MDMA. Referring now to those drug trafficking offences, your dealing efforts can be described as those of a user-dealer, and as I previously have said, I do not take account of any element of commerciality with respect to the manufacturing offences (ts 229‑ 230).
When the appellant committed the offences in question, he had a substantial drug debt, a raging addiction to amphetamines and very modest financial resources unrelated to drug dealing.
I understand his Honour to have sentenced the appellant on the basis that:
(a)any money the appellant derived from the sale of methylamphetamine he manufactured was applied partly towards the cost of manufacturing that and other methylamphetamine, partly towards the purchase of other prohibited drugs for his personal use and partly towards the reduction of his drug debt; and
(b)the other prohibited drugs (apart from the methylamphetamine he manufactured) which the appellant supplied, or offered to sell or supply, were supplied or offered pursuant to a drug trafficking operation carried on by the appellant at a retail level.
The sentencing judge acknowledged the mitigation to be found in the appellant's fast‑track pleas of guilty. He took the pleas into account in fixing sentence. His Honour said, however:
In this case, of course, with respect to all of the offending for which you're before me, it would appear that your conviction was largely a matter of inevitability. Nor do I accept that there is true remorse on your part. Nevertheless, the plea is an early one, the administration of justice has been facilitated, and in my view notwithstanding what I have said earlier, a discount at the low end of the range is still appropriate (ts 227).

The merits of the remaining ground of appeal

A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error. 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 maximum penalty for aggravated burglary, contrary to s 401(2)(a) of the Code, is 20 years' imprisonment.
The maximum penalty for each of the offences of manufacturing a prohibited drug, contrary to s 6(1)(b) of the Act, and for selling or supplying or offering to sell or supply a prohibited drug to another, contrary to s 6(1)(c) of the Act, is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the Act.
Since the enactment of the Misuse of Drugs Amendment Act 2004 (WA), this maximum penalty has also applied to the offence of attempting to manufacture a prohibited drug, contrary to s 6(1)(b) read with s 33(1) of the Act. Previously, the maximum penalty for this offence had been 12 years 6 months' imprisonment or a fine of $50,000 or both.
In McKeagg v The Queen [2006] WASCA 26; (2006) 162 A Crim R 51, it was suggested that the 'conventional approach' is to treat an attempt as being less serious than a completed offence, notwithstanding that the Parliament has enacted that the maximum available penalty for an attempt is identical to the maximum available penalty for the completed offence. See the reasons of Roberts-Smith JA [21] and Murray AJA (Pullin JA agreeing) [55].
However, the culpability of an offender (including an offender who has been convicted of an attempt as distinct from the completed offence, including an attempt to manufacture a prohibited drug, contrary to s 6(1)(b) read with s 33(1) of the Act), and the extent to which he or she should be punished, must be determined by reference to all the facts and circumstances of the particular offending and the offender. See Reid v The State of Western Australia [2012] WASCA 23 [45] (Buss JA, McLure P agreeing).
The primary sentencing considerations in relation to aggravated burglary are general and personal deterrence. Ordinarily, a substantial penalty is imposed. The standards of sentencing customarily imposed for burglary and aggravated burglary were reviewed by this court in Ashworth v The State of Western Australia [2006] WASCA 36, Drake v The State of Western Australia [2006] WASCA 209 and Nguyen v The State of Western Australia [2007] WASCA 114. Aggravated burglaries can be and are, of course, committed in a wide range of circumstances. The sentence to be imposed for the particular offence must be commensurate with the seriousness of the particular offence, taking into account the statutory penalty, the circumstances of the commission of the offence and any aggravating or mitigating factors.

The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. See Bellissimo v The Queen (1996) 84 A Crim R 465, 471. 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. See Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [67] ‑ [70]; Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [50]; and Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [52]. The degree of purity is often regarded as significant. See The State of Western Australia v Tran [2008] WASCA 183 [9]. Matters personal to an offender will almost always be given reduced weight. See Bellissimo, (469); and Tulloh [12], [43], [46].
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. See The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 [19] (Steytler P, McLure & Miller JJA agreeing). The guidance afforded by comparable cases is flexible rather than rigid.
Sentencing ranges of the kind discussed in Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49; The State of Western Australia v Toothill [2007] WASCA 236; and Swains v The State of Western Australia [2007] WASCA 251 can provide only general guidance. See Coleski v The State of Western Australia [2008] WASCA 260 [16]. The review of sentencing dispositions undertaken by Miller AJA in Bosworth, and his Honour's observations about the range of sentences revealed by his review, do not establish a sentencing matrix. They do not fix an upper or lower limit.
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.
As to the counts of manufacturing methylamphetamine, contrary to s 6(1)(b) of the Act, McLure P (Buss JA & Mazza J agreeing) said in The State of Western Australia v Jenkin [2011] WASCA 171 [12] ‑ [14]:
The offence of manufacturing a prohibited drug is, by any measure, serious. The maximum penalty for the offence is 25 years’ imprisonment. It is the same maximum penalty as for the dealing offences in s 6(1)(a) and (c) of the MDA.
There has been a very significant increase in improvised clandestine drug laboratories in Western Australia in the past decade. In 2000 ‑ 2001, 22 clandestine laboratories were found in Western Australia. In 2010, that figure had escalated to 133 clandestine laboratories. In the calendar year to 7 July 2011, 100 clandestine laboratories have been detected. Such laboratories present significant dangers to the people undertaking the manufacturing activity, people within its immediate vicinity and police and emergency services required to deal with them. Ammonia gas is extremely dangerous and can be fatal if inhaled. The WA Police now have to warn the public to be mindful of abandoned items of laboratory equipment in parks and bushland because of the dangers associated with it. The presence of a drug laboratory in bushland carries with it the real risk of a bush fire. Further, the close association between the use of methylamphetamine and the commission of criminal offences is well documented: The State ofWestern Australia v Higgins [2008] WASCA 157 [115].
Against that background it will come as no surprise that a sentence of immediate imprisonment will ordinarily be imposed for manufacturing methylamphetamine: R v Pallister [2002] WASCA 68 [31]; White vThe State ofWestern Australia [2007] WASCA 119 [4]; Rumenos v The State of Western Australia [2011] WASCA 59 [34]; The State ofWestern Australia v Skaines [2006] WASCA 160.
See also The State of Western Australia v Hyder [2011] WASCA 256.
As to the counts of supplying, or offering to sell or supply, a prohibited drug to another, contrary to s 6(1)(c) of the Act, I have examined a number of previous cases with at least some features comparable to the appellant's offending. They include Hobby v The State of Western Australia [2009] WASCA 108 and TXT v The State of Western Australia [2012] WASCA 28.
As I have mentioned, the appellant committed some of the offences in question while he was on bail for other offences. This reveals a blatant disregard for the law. It underscores the need for personal deterrence. See The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 [165] (Buss JA) and the cases there cited.
Substantial discounts in sentencing may be allowed to recognise the value of an offender's cooperation with law enforcement agencies. When deciding upon the appropriate level of discount in a particular case, the court must consider the value of the offender's cooperation and the risk to his or her personal safety, while ensuring that the discount does not result in a sentence which is, in all the circumstances of the offending and the offender, obviously inadequate or an affront to community standards.
The applicable principles, including the proper approach in determining the nature, extent and value of an offender's past and promised future cooperation with law enforcement agencies, and the

appropriate level of any discount on his or her sentence, were examined by this court in MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149.

In my opinion, the total effective sentence of 8 years' imprisonment (with 6 years to be served before eligibility for parole) did not infringe the first limb of the totality principle.
The appellant committed numerous serious offences over a lengthy period. First, there was the period between 1 June and 10 July 2009, when the appellant supplied, or offered to sell or supply, cannabis, MDMA and methylamphetamine; received the knowingly stolen medication; committed the burglaries; and attempted to manufacture methylamphetamine. Secondly, there is the offence of manufacturing methylamphetamine committed on 27 February 2010. Thirdly, there is the offence of manufacturing methylamphetamine committed on 31 May 2010. Fourthly, there are the various offences listed in the s 32 notice which were detected when the appellant's house was searched on 10 July 2009, 27 February 2010 and 31 May 2010.
There were few mitigating features. The mitigation was to be found primarily in the appellant's fast‑track pleas of guilty (although they were not accompanied by genuine remorse) and his cooperation with the police (which was of little value and did not arise from genuine remorse).
The total effective sentence of 8 years' imprisonment was a just and appropriate measure of the appellant's total criminality after taking into account the maximum available penalties, the seriousness of the offences, the comparable cases, the mitigating factors and all the circumstances of the case including those referable to the appellant. The total effective sentence was within the range of a sound exercise of the sentencing discretion. No error should be inferred.
The ground of appeal fails.

Conclusion

I would refuse to grant an extension of time to appeal because the ground of appeal is unmeritorious.
The appellant's application should be dismissed.
MAZZA JA: I agree with Pullin JA.

ANNEXURE

Indictment
Cnt	Offence	Weight/ Price	Sentence	Cum/conc	Maximum penalty available
1.	Offer to sell/supply cannabis	1 stick ($25)	1 month	Concurrent	Indictable Penalty : Fine not exceeding $100,000 or Imprisonment not exceeding 25 years or both. If relating to cannabis only : Fine not exceeding $20000 or Imprisonment not exceeding 10 years or both Summary Penalty - Applies to amounts under Schedule III amounts Fine not exceeding $5000 or Imprisonment not exceeding 4 years or both
2.	Offer to sell/supply cannabis	$20	1 month	Concurrent
3.	Offer to sell/supply cannabis	$50	1 month	Concurrent
4.	Offer to sell/supply cannabis	$25	1 month	Concurrent
5.	Offer to sell/supply cannabis	$20	1 month	Concurrent
6.	Offer to sell/supply cannabis	$25	1 month	Concurrent
7.	Offer to sell/supply cannabis	168g (6oz)	1 month	Concurrent
8.	Offer to sell/supply cannabis	$50	1 month	Concurrent
9.	Offer to sell/supply cannabis	$50	1 month	Concurrent
10.	Offer to sell/supply MDMA	$200 (approx 5-6 tablets)	3 months	Concurrent
11.	Offer to sell/supply methylamphetamine	.1g	1 month	Concurrent
12.	Receiving	6 months	Concurrent	Imprisonment for 14 years

13.	Offer to sell/supply cannabis	4 cones (approx $4)	1 month	Concurrent	Indictable Penalty : Fine not exceeding $100000 or Imprisonment not exceeding 25 years or both. If relating to cannabis only : Fine not exceeding $20,000 or Imprisonment not exceeding 10 years or both Summary Penalty - Applies to amounts under Schedule III amounts Fine not exceeding $5,000 or Imprisonment not exceeding 4 years or both
14.	Offer to sell/supply cannabis	1 stick	1 month	Concurrent
15.	Offer to sell/supply MDMA	2 tablets	1 month	Concurrent
16.	Aggravated Burglary	1 year	Concurrent	Indictable Penalty: - Aggravated- Imprisonment for 20 years. Summary Penalty: - Only circumstance of aggravation is being in company- Imprisonment for 3 years and a fine of $36,000.

17.	Offer to sell/supply MDMA	20-30 tablets	1 month	Concurrent	Indictable Penalty : Fine not exceeding $100,000 or Imprisonment not exceeding 25 years or both. If relating to cannabis only : Fine not exceeding $20,000 or Imprisonment not exceeding 10 years or both
18.	Offer to sell/supply cannabis	476g (17 oz)	6 months	Concurrent
19.	Offer to sell/supply cannabis	28g and $50	2 months	Concurrent
20.	Offer to sell/supply methylamphetamine	.5g	2 months	Concurrent
21.	Offer to sell/supply methylamphetamine	Quantity unknown	2 months	Concurrent
22.	Offer to sell/supply cannabis	28g	2 months	Concurrent
23.	Offer to sell/supply methylamphetamine	.5g and $100	2 months	Concurrent
24.	Offer to sell/supply cannabis	$25	1 month	Concurrent
25.	Offer to sell/supply cannabis	$100	1 month	Concurrent
26.	Offer to sell/supply MDMA	10 tablets	6 months	Concurrent
27.	Offer to sell/supply cannabis	$100	1 month	Concurrent
28.	Offer to sell/supply methylamphetamine	.5g	2 months	Concurrent
29.	Offer to sell/supply cannabis	112g	3 months	Concurrent
30.	Supply cannabis	196g	6 months	Concurrent
31.	Supply methylamphetamine	.88g	5 months	Concurrent

32.	Offer to sell/supply cannabis	$50	1 month	Concurrent
33.	Offer to sell/supply cannabis	364-392g	6 months	Concurrent
34.	Offer to sell/supply methylamphetamine	.5g	1 month	Concurrent
35.	Offer to sell/supply methylamphetamine	1.75g	6 months	Concurrent
36.	Offer to sell/supply MDMA	15 tablets	1 month	Concurrent
37.	Supply methylamphetamine	.5g	1 month	Concurrent
38.	Offer to sell/supply methylamphetamine	3.5g offered, but 1.75g sold	6 months	Concurrent
39.	Offer to sell/supply cannabis	56g	2 months	Concurrent
40.	Supply methylamphetamine	1.5g	6 months	Concurrent
41.	Aggravated burglary	18 months	Concurrent	Indictable Penalty: - Aggravated- Imprisonment for 20 years. Summary Penalty: - Only circumstance of aggravation is being in company- Imprisonment for 3 years and a fine of $36,000.

42.	Supply cannabis	$50	1 month	Concurrent	Indictable Penalty : Fine not exceeding $100,000 or Imprisonment not exceeding 25 years or both. If conspiring with another: Fine not exceeding $75,000 or Imprisonment not exceeding 20 years or both. If relating to cannabis only : Fine not exceeding $20,000 or Imprisonment not exceeding 10 years or both
43.	Supply methylamphetamine	.5g	2 months	Concurrent
44.	Supply methylamphetamine	.5g	2 months	Concurrent
45.	Offer to sell/supply cannabis	$25	1 month	Concurrent
46.	Supply methylamphetamine	$100	1 month	Concurrent
47.	Supply cannabis	56g	3 months	Concurrent
48.	Attempt to manufacture methylamphetamine	18 months	Cumulative upon count 16	Indictable Penalty : Fine not exceeding $100,000 or Imprisonment not exceeding 25 years or both.
49.	Manufacture methylamphetamine	No quantity but an estimation made in sentencing from the waste product	2 years 6 months		Cumulative upon count 48
50.	Manufacture methylamphetamine	As above	3 years		Cumulative upon count 49

Section 32
1.	No authority to drive (subsequent offence)	3 months imprisonment, licence suspended for 12 months	Concurrent	Up to $600 fine for 2nd and subsequent convictions or 18 months imprisonment, between 9 months and 3 years licence suspension
2.	Possess cannabis	$400 fine	Imprisonment for a term not exceeding 2 years or a fine not exceeding $2,000 or both.
3.	Possess smoking utensil	$200 fine	Imprisonment for a term not exceeding 3 years or a fine not exceeding $3,000 or both.
4.	Possess unlicensed ammunition	3 months	Concurrent	Imprisonment for 5 years. Summary conviction penalty: Imprisonment for 3 years or a fine of $12,000. (Unless subsection (1aa), (1ab) or (1ac) applies).
5.	Possess cannabis	$100 fine	Imprisonment for a term not exceeding 2 years or a fine not exceeding $2,000 or both.

6.	Breach of bail	1 month	Concurrent	Fine up to $10,000 or imprisonment up to 3 years or both.
7.	Possess unlicensed firearm	6 months	Concurrent	Imprisonment for 5 years. Summary conviction penalty: Imprisonment for 3 years or a fine of $12,000. (Unless subsection (1aa), (1ab) or (1ac) applies).
8.	Possess smoking utensil	$200 fine	Imprisonment for a term not exceeding 3 years or a fine not exceeding $3,000 or both.
9.	Possess stolen or unlawfully obtained property	3 months	Concurrent	Imprisonment for 2 years and a fine of $24,000.
10.	Possess stolen or unlawfully obtained property	3 months	Concurrent	Imprisonment for 2 years and a fine of $24,000.
TES: 8 years' imprisonment with parole eligibility backdated to commence on 6 June 2010, monetary fines totalling $900 and suspended from driving for 12 months.