Stewart v The State of Western Australia
[2014] WASCA 195
•30 OCTOBER 2014
STEWART -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 195
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 195 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:75/2014 | 22 SEPTEMBER 2014 | |
| Coram: | McLURE P MAZZA JA | 30/10/14 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Application to adduce evidence dismissed Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | SCOTT MARK STEWART THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for leave to appeal against sentence Appellant convicted on late plea of guilty of one count of possession of methylamphetamine with intent to sell or supply Sentence of 2 years and 6 months' imprisonment imposed Whether sentence manifestly excessive Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 40(1)(e) Misuse of Drugs Act 1981 (WA), s 6(1)(a) Sentencing Act 1995 (WA), s 9AA |
Case References: | Formica v The State of Western Australia [2013] WASCA 237 Lynch v The State of Western Australia [2011] WASCA 243 Neumann v The State of Western Australia [2013] WASCA 70 Samuel v The State of Western Australia [2004] WASCA 154 The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363 The State of Western Australia v Reid [2012] WASCA 109 The State of Western Australia v Wynne [2008] WASCA 195; (2008) 188 A Crim R 502 Tran v The State of Western Australia [2010] WASCA 38 Wickham v The State of Western Australia [2010] WASCA 73 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : STEWART -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 195 CORAM : McLURE P
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BIRMINGHAM DCJ
File No : IND 1212 of 2013
Catchwords:
Criminal law - Application for leave to appeal against sentence - Appellant convicted on late plea of guilty of one count of possession of methylamphetamine with intent to sell or supply - Sentence of 2 years and 6 months' imprisonment imposed - Whether sentence manifestly excessive - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 40(1)(e)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Sentencing Act 1995 (WA), s 9AA
Result:
Leave to appeal refused
Application to adduce evidence dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr P J Urquhart
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Formica v The State of Western Australia [2013] WASCA 237
Lynch v The State of Western Australia [2011] WASCA 243
Neumann v The State of Western Australia [2013] WASCA 70
Samuel v The State of Western Australia [2004] WASCA 154
The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119
The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363
The State of Western Australia v Reid [2012] WASCA 109
The State of Western Australia v Wynne [2008] WASCA 195; (2008) 188 A Crim R 502
Tran v The State of Western Australia [2010] WASCA 38
Wickham v The State of Western Australia [2010] WASCA 73
1 McLURE P: I agree with Mazza JA.
2 MAZZA JA: This is an application for leave to appeal against sentence. The appellant has also applied to adduce additional evidence in the appeal pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA). The additional evidence comprises a brief report from the Cygnet Clinic, a single urinalysis result taken on 28 December 2013 and a letter from the appellant's father, the owner of an earthmoving business, stating the appellant will be offered employment on his release from prison.
3 The appellant pleaded guilty in the District Court to one count of possession of methylamphetamine with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). On 8 April 2014, he was sentenced by Birmingham DCJ to 2 years and 6 months' imprisonment with eligibility for parole, to commence on that day.
4 Although represented by counsel at the hearing of this application, the appellant prepared his own grounds of appeal and the written submissions in support of those grounds. In the preparation of those documents he appears to have had the assistance of someone who has some familiarity with the criminal appeal process. At the hearing, counsel abandoned proposed ground 1, which alleged that the learned sentencing judge erred when considering whether or not to impose a suspended sentence by failing to consider all the relevant sentencing factors. Nothing more needs to be said about this proposed ground.
5 The ground which was pursued was ground 2, which alleges that the sentence imposed was manifestly excessive. For the reasons that follow, that ground has no reasonable prospects of succeeding. I would also dismiss the application to adduce additional evidence.
The facts of the offending
6 The facts recited by the prosecutor at the sentencing hearing were not disputed and may be summarised in this way.
7 At about 11.40 pm on 7 February 2013, the appellant was driving his vehicle in Maida Vale. The vehicle was stopped by police. The officers observed the appellant to be acting nervously and saw some drug paraphernalia in his car. The appellant was searched. In his underpants were four clipseal bags containing 1.66, 1.70, 1.72 and 11.8 g of methylamphetamine, respectively. Later, the police discovered that the appellant was in possession of two more clipseal bags which contained 0.78 g of methylamphetamine between them. In total, the appellant was found in possession of 17.66 g of the drug. Only the contents of the clipseal bag containing 11.8 g of methylamphetamine was analysed for purity. It was found to be 23% pure.
8 In addition to the methylamphetamine, the police also located:
(a) $4,175 in cash in the appellant's front jeans pocket;
(b) a clipseal bag containing 5.06 g of cutting agent, dimethyl sulfone (commonly known as MSM), in the appellant's underpants;
(c) a set of electronic scales, a smoking implement and three mobile telephones in various parts of the appellant's vehicle.
9 The plea of guilty was not entered at the first reasonable opportunity. It was indicated and entered in the week before the trial, after a ruling had been made in favour of the State for the admission of propensity evidence.
The appellant's antecedents
10 At the time of the offence, the appellant was 28 years of age. He was almost 30 on the date he was sentenced. The appellant left school at year 9. He began work with his father in an earthmoving business. By the time he was 19, he had established his own excavator hire business and had bought his first home. However, he lost his driver's licence for traffic offending and found work difficult to obtain. It was accepted by the learned sentencing judge that the appellant 'got into the wrong crowd and his life fell apart' (ts 43). It appears he became depressed. Eventually the appellant lost his house and his business. At around this time he became addicted to methylamphetamine.
11 The appellant has a lengthy history as an adult of predominantly (but not only) traffic and drug offences, all of which have been dealt with in the Magistrates Court. In 2007, he was convicted of a number of traffic and drug offences for which he was fined. In 2008, he was again convicted of a combination of offences including drug offences. Once again he was fined. In 2010, he was convicted of possession of methylamphetamine with intent to sell or supply and placed on a community based order. In 2013, he was convicted of charges including possession of cannabis and possession of methylamphetamine, for which he was fined.
12 As the appellant's contention is that his Honour's sentencing remarks reveal implied and not express error, there is no need to describe them in detail. The learned sentencing judge found that the appellant was a user/dealer. His Honour later elaborated, explaining that a large portion of the proceeds from the sale of drugs would have been spent on purchasing drugs for his own use, but the appellant was also supplementing his income from the sale of methylamphetamine (ts 46). These findings have not been challenged.
13 His Honour accepted that the appellant was remorseful for his offending and noted that he had, on his own initiative, attended and received counselling from the Cygnet Clinic since August 2013. His Honour noted the appellant's criminal history and observed that the offending was not 'some uncharacteristic aberration' and revealed 'an attitude of disobedience' (ts 43). His Honour, generously, gave a discount for the plea of guilty, pursuant to s 9AA of the Sentencing Act 1995 (WA), of 15%. His Honour acknowledged the appellant's counsel's concession that immediate imprisonment was the appropriate sentencing option, but nevertheless expressly turned his mind to the possibility of a suspended imprisonment order. His Honour decided, having regard to the seriousness of the offence, that a suspended sentence was inappropriate.
Was the sentence manifestly excessive?
14 To determine whether a sentence is excessive, it is viewed from the perspective of the maximum sentence for the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of that type, the standards of sentencing customarily observed and the personal circumstances of the offender. As an allegation of manifest excess is an allegation of implied error, the appellant must persuade this court that the sentence imposed upon him was unreasonable or plainly unjust.
15 The maximum penalty for an offence contrary to s 6(1)(a) of the Misuse of Drugs Act is 25 years' imprisonment and/or a fine of $100,000.
16 The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction such as methylamphetamine are general and personal deterrence, the objective being to stop, as far as possible, the distribution of substances which have severe adverse consequences to individuals that take them and the community. The subjective circumstances of an offender are of lesser weight.
17 Although the appellant was himself a user of methylamphetamine and did not deal in it in large volumes or at a high level, he was, nevertheless, involved in the distribution of the drug for commercial gain. The packaging of the drugs and the items found in his vehicle were consistent with this and were indicators of an ongoing operation. Enterprises such as that operated by the appellant are, based on the experience of this court, common and are frequently the means by which drugs such as methylamphetamine end up in the hands of end users. The quantity of the drug found in his possession was not insignificant.
18 In the appellant's written submissions he refers to a number of comparative cases, namely Formica v The State of Western Australia [2013] WASCA 237; Neumann v The State of Western Australia [2013] WASCA 70; The State of Western Australia v Reid [2012] WASCA 109; Wickham v The State of Western Australia [2010] WASCA 73; Tran v The State of Western Australia [2010] WASCA 38; The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119; The State of Western Australia v Wynne [2008] WASCA 195; (2008) 188 A Crim R 502; The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363; and Samuel v The State of Western Australia [2004] WASCA 154.
19 In oral argument, the appellant's counsel said that, of these, only two, Formica and Reid, were truly comparable, and to these he added Lynch v The State of Western Australia [2011] WASCA 243.
20 As has been said many times, comparative cases are referred to in order to ensure broad consistency. A sentence may be outside the customary range, but not manifestly excessive. In the end, each case must be decided on its own facts and circumstances.
21 I have reread Formica, Reid and Lynch. I have also considered other cases with features similar to this case. Those cases are set out in the schedule to these reasons. In my view, the cases illustrate that the sentence imposed was broadly consistent with the range of sentences customarily imposed.
22 The appellant placed considerable reliance upon his personal circumstances. He pointed to his 'good employment record, minor criminal record, [and that] he has never received a custodial sentence, as well as his attendance at counselling and his subsequent private urine tests showing no detectable traces of drugs or alcohol'.
23 In truth, the appellant's antecedents are not as favourable as he makes out. His criminal record cannot be properly characterised as 'minor'. While the appellant, to his credit, attended and sought counselling from the Cygnet Clinic, that does not mean that he has been rehabilitated. The report from the Cygnet Clinic is very brief. The degree of his progress is unspecified and the appellant's self-reported statement that he has ceased substance use is largely unsubstantiated. It adds nothing to what was before the sentencing judge. The evidence, including the evidence sought to be adduced in this appeal, does not establish that the appellant has been rehabilitated. Even if it did, that factor would not, on the facts here, justify this court interfering with the sentence.
24 In my opinion, the appellant's claim that the sentence that was imposed upon him was manifestly excessive has no reasonable prospect of succeeding.
25 Leave to appeal should be refused and the appeal dismissed. As the additional material sought to be adduced by the appellant did not, in substance, add to the material before the sentencing judge and as it does not justify the imposition of a different sentence, the application to adduce it is dismissed.
SCHEDULE OF CASES
Bellissimo v The Queen (1996) 84 A Crim R 465
|
|
Appellant 36 years of age with a bad criminal record. |
|
Appellant 31 years of age. |
|
Appellant had favourable antecedents, was youthful (21 years of age), had a positive history of employment and enjoyed the support of his family. |
|
|
In Cartwright v The State of Western Australia [2010] WASCA 4, McLure P, with whom Owen and Wheeler JJA agreed, said the outcome in Schlenka was 'a merciful disposition in what was described as a particularly unusual case' [15]. |
Appellant sentenced for a number of offences at first instance, but the drug offences attracted cumulative periods of imprisonment because of the distinct course of offending. |
|
The appellant was also sentenced at first instance to a partly cumulative term of imprisonment for possession of MDMA, making a total effective sentence of 6 years' imprisonment. The appellant was 33 years of age, a father of two and a member of the Gypsy Jokers' motorcycle club. |
|
Appellant had a good employment history and a supportive partner. |
|
Appellant 25 years of age at time of sentencing. She had largely rehabilitated herself by the time of sentencing, after spending her teenage years using drugs and associating with negative peers. She had gained part-time employment and had ceased using prohibited drugs. |
|
Count 3 concerned possession WISS of 17.7 g of methylamphetamine of between 39 and 58% purity, for which 3 years' cumulative imprisonment was imposed. Appellant was 32 years of age at the time of the offences. She had sole responsibility for the care and upbringing of her two children, aged 11 and 14. |
Appellant appealed against total effective sentence, relying on the first limb of the totality principle. Appellant resentenced to a total term of 10 years' imprisonment, achieved by making the term on count 3 concurrent. |
Count 3 concerned the possession WISS of 25.22 g of methylamphetamine at 10% purity, for which he received 3 years 9 months' imprisonment. |
'The relevant circumstances of this case were all, save one, points in mitigation. They were that the appellant had pleaded guilty on the fast-track; had chronic addiction; was using drugs himself; and was not driven by drug selling as a business for financial gain. Moreover, the purity of the drugs was low; he did not have a serious criminal record; and he had demonstrated a desire to address his addiction. Finally, he had strong family support. The only countervailing and aggravating aspect was that the appellant went on committing offences while on bail. However, at the time these offences were committed, he was addicted to methylamphetamine and indebted to and under pressure from his suppliers' at [20]. |
While the appellant pleaded guilty on the fast track, he was on bail at the time of the offences, was a mature man and had relevant prior convictions. |
|
Relevantly, the appellant was sentenced to 18 months' imprisonment for the possession WISS of 20.9 g of methylamphetamine at 6% purity. The appellant had four children and a supportive wife, was 34 years of age but had a serious criminal record. |
|
Relevantly, count 1 concerned the possession WISS of 22.5 g of methylamphetamine at 11% purity for which 3 years' imprisonment was imposed. The appellant was 27 years of age and had a long history of drug abuse and association with criminal gangs; he had a long criminal history. |
|
Relevantly, the appellant was sentenced to a term of 4 years' concurrent imprisonment for possession WISS of 18.35 g of methylamphetamine at a purity of 44 - 55%. |
|
Relevantly, the appellant was convicted after trial of possession WISS of 14.9 g of methylamphetamine of 20% purity for which she was sentenced to 2 years' imprisonment (count 1). This sentence was made concurrent on the term imposed on count 3. The appellant was 26 years of age at the time of sentencing, had no prior criminal record, came from a supportive family and had a 'privileged' upbringing. |
|
8
23
3