Smith v The State of Western Australia

[2010] WASCA 150

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SMITH -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 150

CORAM:   McLURE P

BUSS JA
MAZZA J

HEARD:   21 JULY 2010

DELIVERED          :   30 JULY 2010

FILE NO/S:   CACR 160 of 2009

BETWEEN:   FRANCIS JAMES SMITH

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :WAGER DCJ

File No  :IND BUN 119 of 2008

Catchwords:

Criminal law - Sentence - Forty-three drug trafficking convictions - Whether sentencing judge made error of fact and took into account an irrelevant consideration - Totality - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr I A Morison

Respondent:     Mr J McGrath

Solicitors:

Appellant:     Ian Morison

Respondent:     Director of Public Prosecutions (WA)

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

Martino v The State of Western Australia [2006] WASCA 78

Woods v The Queen (1994) 14 WAR 341

1. McLURE P:  The appellant appeals against the sentence imposed on him for 43 drug trafficking convictions.  On 3 September 2009, Wager DCJ imposed a sentence of 20 months' imprisonment for the offence the subject of count 2 (selling 3.43 g of methylamphetamine of 28% purity) and ordered that the sentences for the remaining 42 offences be served concurrently with the sentence on count 2, resulting in a total effective sentence of 20 months' imprisonment.  She also ordered that the total sentence of 20 months be served cumulatively with a sentence of 6 years and 3 months' imprisonment imposed by Yeats DCJ on 20 March 2008, resulting in an overall total sentence of 7 years 11 months.  Details concerning the offences for which the appellant was sentenced by Yeats DCJ and Wager DCJ are set out in a schedule annexed to these reasons.

2. The facts of the offences before Wager DCJ are as follows.  On 11 July 2007, the appellant and his partner were approached at their home by a person who wanted to purchase an eight-ball of methylamphetamine.  The appellant's partner sold 3.42 g of methylamphetamine at 25% purity to the person for $1,200 (count 1).

3. On 27 July 2007, a person arranged to purchase an eight-ball of methylamphetamine.  The appellant, who was at his home, took a clipseal bag from a desk.  The bag 'contained a larger amount of powder and [he] placed about a quarter of it in a clipseal bag' (ts 14).  The appellant said the price was $1,300 because of the quality.  The methylamphetamine seized was 3.43 g at 28% purity (count 2).

4. The convictions for offering to sell methylamphetamine refer to telephone intercept evidence from 21 July through to 1 September 2007, a period of just over five weeks.  On 39 occasions in this period, the appellant offered to supply methylamphetamine.

5. Count 9 is for the sale of methylamphetamine consistent with a telephone intercept in relation to 0.4 g for $200.  Count 26 relates to drugs found on the appellant, being 3.41 g of methylamphetamine at 21% purity.

6. The sentencing judge correctly observed that the offending reflected a calculated and very busy trade as a drug dealer in methylamphetamine.

7. The appellant was aged 50 at the time he committed the offences.  As Wager DCJ observed, the appellant has a shocking record (23 pages) which commenced when he was a child.  The appellant informed the writer of the pre‑sentence report that he has spent a total of 24 years of his adult life in prison. 

8. The pre‑sentence report notes that the appellant left school after completing year 10 and worked in unskilled jobs until becoming a full‑time drug dealer in 1991.  Drug dealing has been the primary source of the appellant's income which he applied, in part, to fund his own drug habit.  The appellant was convicted of trafficking drugs on a number of occasions before being sentenced by Yeats DCJ in March 2008.

9. The appellant was dependent on alcohol until the age of 33 when he became a drug user.  He reports being sexually abused between the ages of 7 and 9 and regularly beaten by his father who was in the army.  Due to the appellant's behavioural problems, he was made a ward of the State between the ages of 14 and 16.

Grounds of appeal

1. Leave to appeal has been granted on three grounds.  They are (excluding particulars) that the sentencing judge erred:

   (1)in taking into account an irrelevant consideration, namely the quantity of methylamphetamine from which the appellant drew the methylamphetamine he supplied the subject of count 2;

   (2)in sentencing the appellant on count 2 on the basis that the supplied quantity was drawn from a larger source quantity and further upon the basis that the source quantity was approximately 2 ounces;

   (3)in failing to make the 20‑month sentence imposed on count 2 concurrent with the head sentence of 6 years and 3 months handed down on 20 March 2008 because the total sentence is excessive.

Grounds 1 and 2

1. In finding the facts on count 2 the sentencing judge stated, as was the fact, that the methylamphetamine the subject of the charge was taken from a larger amount of powder in a clipseal bag.  However, in the course of sentencing for that count, the sentencing judge expressly recorded that she was sentencing the appellant for the quantity the subject of the charge and not in relation to the remaining quantity in the clipseal bag (ts 19). 

2. The fact that the methylamphetamine the subject of count 2 was removed from a larger quantity is not an irrelevant sentencing consideration.  It is relevant contextual material which supports the overwhelming inference that the appellant was engaged in a significant way in the business of drug trafficking.  There is no merit in ground 1.

3. Counsel for the State informed the court that the clipseal bag taken from the desk contained a larger amount of white powder believed to be approximately 2 ounces of methylamphetamine (ts 3).  It appears the defence did not take issue with this statement at the sentencing hearing.

4. It is now contended that if one quarter of the powder was removed from the clipseal bag and that amount weighed 3.43 g, it is mathematically impossible that the source quantity was 2 ounces.  However, the sentencing judge did not make a finding as to the amount of the source quantity.  She sentenced on the basis that the amount of methylamphetamine the subject of count 2 was taken from a bag containing a larger quantity of powder.  Moreover, even if such a factual error was made, it would not be material.  The context is relevant to the sentencing process but the precise quantity of the amount in the clipseal bag does not undermine the finding that the appellant was engaged in a significant way in the business of trafficking in methylamphetamine.  There is no merit in ground 2. 

Ground 3

1. The substance of the appellant's claim is that the sentencing judge erred in ordering the total sentence of 20 months for the 43 drug trafficking offences to be served cumulatively with the sentence of 6 years and 3 months imposed by Yeats DCJ.

2. A total sentence must bear a proper relationship to the overall criminality involved in all the relevant 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. Further, the total sentence must not be 'crushing' (in the sense explained in Martino v The State of Western Australia [2006] WASCA 78 [16]).

3. Wager DCJ was very mindful of totality considerations when sentencing the appellant.  She reduced the otherwise appropriate sentence for count 2 from 2 years to 20 months and ordered that all the remaining sentences be served concurrently because of totality considerations, including the need to avoid a crushing sentence.

1. The offences for which the appellant was sentenced by Wager DCJ had a temporal overlap with the offences for which he was sentenced by Yeats DCJ.  The question is whether the 43 drug trafficking offences increased the overall criminality of all the offending for which the appellant was sentenced in March 2008 and September 2009.  The answer is unequivocally yes.  The 43 drug trafficking offences revealed for the first time the true scale of the illegal enterprise in which the appellant was involved.  Wager DCJ did not err in ordering cumulation.

2. The appeal should be dismissed.

3. BUSS JA:  I agree with McLure P.

4. MAZZA J:  I agree with McLure P.

Schedule

Charges dealt with by Yeats DCJ on 20 March 2008

1.  Indictments in District Court

INDICT'T	DATE Offence	OFFENCE	QUANTITY	SENTENCE
BU63/06	22/2/06	Possession W/I S/S Methylamphetamine	14.77 g at 20% purity	2 years (cum)
BU48/08	3/9/07	Possession W/I S/S Methylamphetamine	27.9 g at 32% purity	3 years (cum) with 63/06

2.  Magistrates Court Charges remitted to District Court per s 32

MAG CT	DATE Offence	OFFENCE	SENTENCE
1	5116	3/9/07	Receiving:  shotgun value $250.	9m cum with count 12
2	5117	3/9/07	Receiving:  camera and laptop value $2500	9m
3	5118	3/9/07	Receiving:  mob phone and rings value $500	6m
4	5119	3/9/07	Receiving:  two rifles and two shotguns value $4400	9m
5	5120	3/9/07	Receiving:  socket set and laptop value $2500	6m
6	5121	3/9/07	Receiving:  3 rings, 2 necklaces, broach value $1000	9m
7	5122	3/9/07	Receiving:  army bag value $100.	2m
8	5123	3/9/07	Receiving:  laptop value $2200	6m
9	5124	3/9/07	Possession W/I S/S:  46 Capanol tablets (morphine) 50mg and 100mg.	6m
10	5125	3/9/07	Possession W/I S/S:  Cannabis 33 g.	2m
11	5126	4/10/07 (interview)	Supplied prohibited drug:  cannabis 2 x 'sticks' 2 g each.	3m
12	5127	3/9/07	Possessing Stolen or Unlawfully obtained property ('possessing'):  90 pieces of jewellery.	6m (cum)

13	5129	3/9/07	Possessing:  16 watches	6m
14	5130	3/9/07	Possessing:  Seven digital cameras, older SLR camera, video camera and accessories.	6m
15	5131	3/9/07	Possessing:  DVD plays, home tel.system, computer games.	6m
16	5132	3/9/07	Possessing:  Laser levels, laser range finder, Ryobi belt sander, surveillance cameras and cables, vehicle audio equipment	6m
17-23	5133-5139	3/9/07	Possessing unlicensed firearm:  2 'pen-gun' style firearms; paint ball gun and ammunition, 2 rifles, 3 shotguns	9m each
24	5140	3/9/07	Possess unlicensed ammunition	6m
25	5150	3/9/07	Failed to stop when called upon.	$200
26	5151	3/9/07	Reckless driving (dangerous to public or a person)	6m disq 18m
27	5152	3/9/07	Drive contrary to learner's permit.	$100

TOTAL EFFECTIVE SENTENCE FROM YEATS DCJ ON 20 MARCH 2008     6yr 3m

Charges dealt with by Wager DCJ on 3 September 2009:  Indictment BUN 119/08

dated 5 January 2009

COUNT	DATE Offence	OFFENCE	QUANT.	SENTENCE
1	11/7/07	Sold prohibited drug Methylamphetamine	3.42 g at 25% purity	2yr
2	27/7/07	Sold prohibited drug Methylamphetamine	3.43 g at 28% purity	20m cum with Yeats DCJ's 6y 3m
3	31/7/07	Offer to S/S prohibited drug ('Offer') Methylamphetamine	0.1 g	18m
4	4/8/07	Offer Methylamphetamine	3 g	18m
5	4/8/07	Offer Methylamphetamine	0.2 g	18m
6	5/8/07	Offer Methylamphetamine	0.2 g	18m
8	7/8/07	Offer Methylamphetamine	0.5 g	18m
9	9/8/07	Sold Methylamphetamine	0.5 g + 0.1 g	1yr

10	10/8/07	Offer Methylamphetamine	1 g	18m
11	10/8/07	Offer Methylamphetamine	0.1 g	18m
12	10/8/07	Offer Methylamphetamine	-	18m
13	11/8/07	Offer Methylamphetamine	0.2 g	18m
14	14/8/07	Offer Methylamphetamine	0.5 g	18m
15	14/8/07	Offer Methylamphetamine	0.1 g	18m
16	15/8/07	Offer Methylamphetamine	0.1 g	18m
17	16/8/07	Offer Methylamphetamine	0.1 g	18m
18	16/8/07	Offer Methylamphetamine	0.2 g	18m
21	17/8/07	Offer Methylamphetamine	3.5 g	18m
22	17/8/07	Offer Methylamphetamine	4 'roundies'	18m
23	17/8/07	Offer Methylamphetamine	3.5 g	18m
24	17/8/07	Offer Methylamphetamine	3.5 g	18m
25	18/8/07	Offer Methylamphetamine	$50	18m
26	18/8/07	Offer Methylamphetamine	3.5 g	18m
27	18/8/07	Offer Methylamphetamine	1.75 g	18m
28	18/8/07	Offer Methylamphetamine	0.2 g	18m
29	18/8/07	Offer Methylamphetamine	1.75 g	18m
30	22/8/07	Offer Methylamphetamine	0.1 g	18m
32	24/8/07	Offer Methylamphetamine	0.2 g	18m
33	24/8/07	Offer Methylamphetamine	0.2 g	18m
34	24/8/07	Offer Methylamphetamine	0.3 g	18m
35	24/8/07	Offer Methylamphetamine	$250	18m
36	25/8/07	Possession Methylamphetamine W/I S/S	3.41 g at 21% purity	2 years
38	26/8/07	Offer Methylamphetamine	0.5 g	18m

39	26/8/07	Offer Methylamphetamine	$100	18m
40	26/8/07	Offer Methylamphetamine	0.2 g	18m
41	26/8/07	Offer Methylamphetamine	0.2 g	18m
42	27/8/07	Offer Methylamphetamine	0.1 g	18m
43	28/8/07	Offer Methylamphetamine	1.75 g	18m
44	29/8/07	Offer Methylamphetamine	0.3 g	18m
45	31/8/07	Offer Methylamphetamine	0.1 g	18m
46	1/9/07	Offer Methylamphetamine	0.2 g	18m
47	1/9/07	Offer Methylamphetamine	0.1 g	18m
48	1/9/07	Offer Methylamphetamine	0.2 g	18m