Stickells v The State of Western Australia

[2018] WASCA 160

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   STICKELLS -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 160

CORAM:   MAZZA JA

BEECH JA

HEARD:   5 SEPTEMBER 2018

DELIVERED          :   19 SEPTEMBER 2018

FILE NO/S:   CACR 149 of 2018

BETWEEN:   ANDREW JOHN STICKELLS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   GLANCY DCJ

File Number            :   IND 1220 of 2017 and IND 77 of 2018

Catchwords:

Criminal law and sentencing - One offence of possession of methylamphetamine with intent to sell or supply and two offences of extortion - Whether total effective sentence of 4 years' immediate imprisonment infringed the totality principle

Legislation:

Nil

Result:

Leave to appeal refused

Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	The Director of Public Prosecutions (WA)

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

Barry v The State of Western Australia [2012] WASCA 175

Manisco v The State of Western Australia [No 2] [2013] WASCA 190

Perry v The State of Western Australia [2016] WASCA 139

Phan v The State of Western Australia [2016] WASCA 201

JUDGMENT OF THE COURT:

Introduction

The appellant appeals against his sentence of 4 years' immediate imprisonment imposed on his conviction, on his pleas of guilty, to one count of possession of methylamphetamine with intent to sell or supply and two counts of extortion.

The appellant contends that the sentences imposed for the extortion offences were manifestly excessive, and that the total effective sentence infringed the first limb of the totality principle.  In our opinion, there is no merit in these complaints.  The application for leave to appeal must be dismissed, and the appeal dismissed.

The offences and the sentences imposed

The appellant was charged with three offences:

1.On 16 August 2016, he had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply.

2.Between 31 December 2015 and 12 October 2016 at Halls Head, with intent to extort or gain, orally demanding that MWS give him a sum of money, without reasonable cause and with threat of injury or detriment if the demand was not complied with.

3.On 11 October 2016 at Halls Head, with intent to extort or gain, orally demanded that KBS deposit a sum of money in a bank account, without reasonable cause and with threat of injury or detriment to her son, MWS, if the demand was not complied with.

The judge imposed a sentence of 12 months' imprisonment on count 1; 18 months' imprisonment on count 2; and 3 years' imprisonment on count 3.  The sentence on count 3 was the head sentence.  The sentence on count 1 was ordered to be served cumulatively, and the sentence on count 2 concurrently, with count 3.

Accordingly, the total effective sentence was 4 years' imprisonment.  The judge ordered that the appellant be eligible for parole.

The facts

The facts were not in dispute before the sentencing judge, and are not in dispute on appeal.[1]

[1] The following facts are taken from the sentencing judge's statement of the facts at ts 26 - 27.

The facts as to the possession of methylamphetamine with intent to sell or supply charge were as follows.

On 16 August 2016, following his arrest by police in relation to another matter, the appellant was searched and released from custody.  After the search, 9.25 g of methylamphetamine, of a purity of 80%, was found on the floor of the police vehicle, in which he was searched, where he had been sitting.  Upon his rearrest, a further 0.51 g of methylamphetamine was found in his clothing.  After a further search, a further 3.5 g of 76% purity was found in his underwear.

In total, the appellant was in possession of 13.27 g of methylamphetamine. 

The facts of the extortion offences were as follows.

The victim, MWS, owed the appellant $10,000.  The appellant threatened MWS that he would 'bury him' if he did not pay that money back.

Subsequently, MWS was in fear that he would be killed by the appellant, having failed to repay the debt.  MWS suggested that the appellant contact MWS's mother.

On 11 October 2016, the appellant contacted MWS's mother, KBS, by telephone.  She is aged 71 years, and lives interstate.  The appellant told her to transfer $10,000 into his account by that Friday, 14 October 2016, or she would no longer have a son.  In fear that the appellant would kill her son, KBS transferred $10,000 to the appellant as he had instructed her to do.

The appellant's personal circumstances

At the time of sentencing, the appellant was 34 years of age.

The appellant was born in South Africa.  His parents separated when he was about 6 years of age.

After leaving school at the age of 15, the appellant completed a catering course and worked as a restaurant manager and chef.  The appellant migrated to Australia when he was 23.  Until the escalation of the appellant's problems with methylamphetamine, he worked in a watch business, which he co‑owned.

The appellant married in 2011, and has a daughter who was born in 2014.

Around the time that his wife became pregnant, the appellant started to use methylamphetamine.  His use of the drug escalated.  Following the separation from his wife, there was a further escalation.  The extent of the appellant's use led him to turn to dealing in order to fund his addiction. 

There were psychological and psychiatric reports before the sentencing judge.  Prior to this offending, the appellant had not been treated for any major mental illness.  He had experienced episodes of depression and anxiety.

The author of the psychiatric report observed that it was unclear how much the appellant's mood and anxiety problems related to his methylamphetamine use, as distinct from other issues.  Since being in prison, and drug free, the appellant's depression and anxiety had been easily controlled.[2]  The author expressed the opinion that the appellant's offending was related to the disinhibiting effect of methylamphetamine abuse.  However, the appellant's reasoning was not impaired to the extent that he did not know what he was doing.  Rather, he was well aware that his actions were wrong and unlawful.[3]

[2] Report of Dr Schineanu [31] - [32].

[3] Report of Dr Schineanu [37] - [38].

The psychological report suggested that the appellant may have a borderline personality disorder and may have a bipolar disorder.  However, the sentencing judge noted these diagnoses had not been made by the psychiatrist.[4] 

[4] Sentencing ts 29.

The sentencing judge was provided with a large number of references from people, including members of the appellant's family and former work colleagues.  The judge observed that these references showed that the appellant's offending, occurring under the influence of his drug taking, was not representative of his character before he became addicted to drugs.[5]

[5] Sentencing ts 29.

Sentencing remarks

The judge characterised the appellant as a low level user/dealer.[6]  Her Honour observed that such people nevertheless play an important role in distributing dangerous drugs into the community.  The appellant acted in order to fund his own addiction and there was, therefore, an element of commerciality in what he did.[7]

[6] Sentencing ts 30.

[7] Sentencing ts 30.

Although the quantity of methylamphetamine was not particularly high, the purity was high.[8]

[8] Sentencing ts 30.

The judge considered that the offence involving the threat to KBS, a 71‑year‑old woman living in another State, was particularly serious.[9]

[9] Sentencing ts 30 - 31.

The judge made the following findings as to mitigating factors:

(1)The judge reduced the head sentence (within the meaning of s 9AA of the Sentencing Act 1995 (WA)) by 25%.[10]

[10] Sentencing ts 31.

(2)The appellant had taken steps towards rehabilitation, attending counselling for drug addiction over the previous three years.  This suggested good prospects of rehabilitation and a low risk of reoffending if the appellant successfully addresses his drug addiction.[11]

[11] Sentencing ts 31.

(3)The appellant was genuinely remorseful.[12]

[12] Sentencing ts 31 - 32.

(4)The judge accepted that the appellant suffered from anxiety and depression.  However, the judge was not satisfied that any aspect of the appellant's mental impairment caused him to behave in the way he did in offending.  Her Honour concluded that there was not a great deal of mitigation in the appellant's mental impairment.[13]

[13] Sentencing ts 32.

The judge observed, correctly, that there was no mitigation in the fact that the appellant committed these offences while he was addicted to drugs.[14] 

[14] Sentencing ts 32 - 33.

The judge referred to the well‑known principles concerning the sentencing of those convicted of possession of drugs with intent to sell or supply, including that considerable weight is given to general deterrence and that mitigating circumstances personal to the offender are ordinarily given less weight.[15]

[15] Sentencing ts 33.

The judge also observed that deterrence was an important sentencing consideration in offences of extortion.[16]

[16] Sentencing ts 34.

The judge would have imposed a sentence of 13 months for the offence of possession of methylamphetamine with intent to sell or supply.  However, on totality grounds, she reduced it to 12 months.[17]  Her Honour imposed a term of 1 year 6 months for the first count of extortion and 3 years for the second count.  The judge considered that a total effective sentence of 4 years' imprisonment was a just and appropriate measure of the total criminality involved in the appellant's behaviour.[18]

[17] Sentencing ts 34 ‑ 35.

[18] Sentencing ts 35.

Her Honour turned to the question of whether the sentences of imprisonment should be suspended.  She concluded that the seriousness of the offences meant that suspension was not appropriate in this case.[19]

[19] Sentencing ts 36.

Ground of appeal

The appellant's ground of appeal is expressed in the following terms:

The sentences imposed for the extortion offences were manifestly excessive and the total sentence imposed on the appellant was disproportionate to the total criminality, having regard to the circumstances of the offending, the personal circumstances of the appellant and sentencing standards.

Appellant's submissions

The appellant submits that having regard to his pleas of guilty, mental health difficulties, efforts at overcoming addiction, good prospects of rehabilitation, low risk of reoffending, remorse, minor record and not having previously been sentenced to imprisonment, the individual sentences for the extortion offences were manifestly excessive and the total sentence was disproportionate to the total criminality.[20]

[20] Appellant's submissions [8]; appeal ts 2.

The appellant referred to some cases as to the sentencing standards for the offence of extortion.[21]

[21] Appellant's submissions [6], referring to Phan v The State of Western Australia [2016] WASCA 201; Perry v The State of Western Australia [2016] WASCA 139; Manisco v The State of Western Australia [No 2] [2013] WASCA 190; Barry v The State of Western Australia [2012] WASCA 175.

Disposition

Although expressed as a single ground of appeal, in substance, the appellant challenges his extortion sentences as manifestly excessive and his total effective sentence as infringing the first limb of the totality principle.  We will resolve the application for leave to appeal on that basis.

The principles relevant to appeals on those grounds are well established and may be summarised as follows:

(1)Sentencing is a discretionary exercise.  An appellate court can intervene only if the appellant demonstrates either an express or implied material error.  Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter.  Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.  Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.

(2)In order to determine whether a sentence for an individual offence is manifestly excessive, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies on the scale of seriousness of crimes of that type, and the offender's personal circumstances.

(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears 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 or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases. 

(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion.  Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence.  What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.

(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence.  A heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts.  A relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively.  The real question is whether the total effective sentence is outside the available sentencing range.

We begin with the question of whether the sentences for the appellant's extortion offences were manifestly excessive.  In our view, for the reasons that follow, the appellant's contention to this effect has no reasonable prospects of success.

It is well established that, in sentencing for extortion offences, general and personal deterrence are important sentencing factors.[22]  The variety of circumstances in which extortion offences occur means there is no tariff and make comparators of limited utility.[23]  We refer to the outline of cases in Manisco v The State of Western Australia [No 2],[24] in addition to the cases referred to by the appellant.  It is not necessary to canvass in detail the facts and circumstances of the cases relied on by the appellant or of other reasonably comparable cases.  The sentences imposed on the appellant for his extortion offences are broadly consistent with the sentences imposed in other reasonable comparable cases. 

[22] Manisco, [57]; Barry [65].

[23] Perry [25].

[24] Manisco [49] - [56].

Implied error is not demonstrated by finding one or two cases where a lesser sentence was imposed for what might be seen as no less serious offending by an offender with similar or less favourable mitigating factors.  The dismissal of an appeal against sentence does not fix the upper (or lower) limit of the range of sentences.

The maximum penalty for an offence of extortion is 14 years' imprisonment.  The appellant's extortion offences had reasonably serious elements.  In effect, the appellant threatened to kill the complainant, MWS, if payment of a debt was not made.  His threats were plainly conveyed in a manner and tone that led the complainants to take the threats very seriously.  As the sentencing judge remarked, the making of a threat to a 71‑year‑old woman that her son would be killed aggravated the seriousness of the second extortion offence.  The appellant exploited the vulnerability of an elderly mother arising from her maternal instinct to protect her child from harm.

The terms of imprisonment imposed for the appellant's extortion offences were not manifestly excessive.  Error cannot be inferred from the sentencing outcome.

There is no merit in the appellant's contention that the total effective sentence of 4 years' imprisonment infringed the first limb of the totality principle.  In addition to the two extortion offences, the seriousness of which is outlined above, the appellant's offence of possession of methylamphetamine with intent to sell or supply is itself a serious criminal offence.  In the circumstances, it amply justified, indeed required, a term of imprisonment cumulative on the sentences for the extortion offences.  The appellant was in possession of more than 13.5 g of methylamphetamine of a high degree of purity, with the intention to sell or supply it to another. 

The appellant's submissions refer to his mental health difficulties.  We repeat what is said at [19] ‑ [21] as to the effect of the reports that were before the sentencing judge.  For the reasons given by the sentencing judge,[25] the appellant's mental health difficulties afforded little mitigation to the appellant.  The author of the psychiatric report identified the appellant's use of methylamphetamine as the primary cause of the appellant's offending.[26]  Indeed, before the sentencing judge, counsel for the appellant conceded that the primary causative factor behind the offending was the appellant's drug abuse.[27]

[25] Sentencing ts 32.

[26] Report of Dr Schineanu [31] - [38].

[27] Sentencing ts 19.

After making due allowance for the appellant's pleas of guilty, and the other mitigating factors, including his remorse, good prospects of rehabilitation and low risk of reoffending, the total effective sentence of 4 years' immediate imprisonment was within the range of an appropriate exercise of the sentencing discretion.

For these reasons, the appellant's contention that the total effective sentence infringed the first limb of the totality principle has no reasonable prospects of succeeding. 

Conclusion

For these reasons, leave to appeal must be refused, and the appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

DM
ASSOCIATE TO THE HONOURABLE JUSTICE BEECH

19 SEPTEMBER 2018