Stipanich v The State of Western Australia

[2023] WASCA 118

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   STIPANICH -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 118

CORAM:   BUSS P

HALL JA

HEARD:   21 JULY 2023

DELIVERED          :   11 AUGUST 2023

FILE NO/S:   CACR 37 of 2023

BETWEEN:   DAVID JOHN STIPANICH

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   HERRON DCJ

File Number            :   1926 of 2021 and 1878 of 2022

Catchwords:

Criminal law - Appeal against sentence - Possession of trafficable quantity of methylamphetamine with intent to sell or supply - Possession of cash reasonably suspected of having been unlawfully obtained - Appellant mid‑level user/dealer for profit - Drug offence committed whilst on bail - Whether sentence of 7 years' imprisonment for methylamphetamine offence was manifestly excessive - Whether total effective sentence of 7 years 10 months' imprisonment infringed the first limb of the totality principal

Legislation:

Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(2), s 34(1)(a)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	S Rafferty
Respondent	:	No appearance

Solicitors:

Appellant	:	Seamus Rafferty
Respondent	:	Director of Public Prosecutions (WA)

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

ATH v The State of Western Australia [2021] WASCA 149

Blasco v The State of Western Australia [2021] WASCA 26

Cochrane v The State of Western Australia [2021] WASCA 5; (2021) 57 WAR 262

Curry v The State of Western Australia [2022] WASCA 36

Den Ridder v The State of Western Australia [2022] WASCA 113

Gaskill v The State of Western Australia [2018] WASCA 8

Humes v The State of Western Australia [2023] WASCA 110

Kabambi v The State of Western Australia [2019] WASCA 44

Le v The State of Western Australia [2022] WASCA 163

McGrath v The State of Western Australia [2021] WASCA 118

Musulin v The State of Western Australia [2020] WASCA 18

Nickson v The State of Western Australia [2021] WASCA 40

The State of Western Australia v Delaney [2020] WASCA 93

Vidich v The State of Western Australia [2020] WASCA 171

VRW v The State of Western Australia [2022] WASCA 177

Walker v The State of Western Australia [2022] WASCA 100

Watson v The State of Western Australia [2022] WASCA 80

JUDGMENT OF THE COURT:

1. The appellant was convicted of three offences on his pleas of guilty.  The offences were contained on two separate indictments.

2. The first two offences were committed on 20 October 2020 and were contained in Indictment 1926 of 2021. Count 1 was an offence of possession of 6.78 g of MDMA, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA) (Misuse of Drugs Act). Though initially charged as an offence alleging an intent to sell or supply, that allegation was withdrawn and a plea to a simple possession offence was accepted. Count 2 was an offence of unlawful possession of $75,170 in cash that was reasonably suspected of having been unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) (Criminal Code).[1]

   [1] Appellant’s submissions [1] - [3].

3. The third offence was committed on 16 February 2022, whilst the appellant was on bail, and was contained in Indictment 1878 of 2022. That offence was one of possessing a trafficable quantity of methylamphetamine, being 107.1 g, with intent to sell or supply, contrary to s 6(1)(a) and s 34(1)(a) of the Misuse of Drugs Act.[2]

   [2] Appellant’s submissions [4] - [5].

4. For ease of reference we will refer to the offences as the first, second and third offence.

5. The appellant was sentenced for all three offences at the same time.  For the first offence he was sentenced to 8 months' imprisonment.  For the second offence he was sentenced to 10 months' imprisonment (reduced for totality reasons).  For the third offence he was sentenced to 7 years' imprisonment.  The sentencing judge ordered that the sentence for the second offence be served cumulatively on the sentence for the third offence and that the sentence for the first offence be served concurrently.  The total effective sentence was, therefore, 7 years 10 months' imprisonment.  The sentence was backdated to take into account time spent in custody.  An order was made that the appellant be eligible for parole.[3]

   [3] ts 41 - 42.

6. The appellant seeks leave to appeal on two grounds.  The first ground is that the sentence of 7 years' imprisonment for the third offence was manifestly excessive.  The second ground is that the total effective sentence of 7 years 10 months' imprisonment breached the first limb of the totality principle.

7. For the reasons that follow, the grounds of appeal have no reasonable prospect of succeeding.  Leave to appeal should be refused and the appeal dismissed.

Admitted facts

1. At 1.15 am on Tuesday, 20 October 2020, the appellant and his partner checked into a hotel in Rivervale.  A security camera in the hotel corridor outside the appellant's room recorded movements between the check‑in time and the appellant's arrest at 11.50 pm the following night.[4]

   [4] ts 12.

2. At about 1.40 am the appellant and his partner carried their belongings to the hotel room.  The appellant was carrying a black backpack over his arm.  At about 1.41 am the appellant left the room holding a small cloth bag, which appeared to be empty.  At about 1.51 am he returned to the room.  At about 3.50 am the appellant and his partner entered the room with two other people.  All four left at about 4.35 am and returned at about 5.22 am.  The two other people eventually left the hotel room at about 6.01 am.[5]

   [5] ts 12 - 13.

3. At about 4.25 pm the appellant and his partner left the hotel room.  The appellant was carrying a black backpack over his shoulder.  He and his partner returned at about 9.58 pm with the backpack.  At about 11.50 pm police arrested the appellant outside the hotel.[6] 

   [6] ts 13.

4. At the time of his arrest the appellant was meeting with another male person.  Police found a small clipseal bag containing 0.18 g of methylamphetamine in the appellant's pocket, together with a mobile telephone.[7]

   [7] ts 13.

5. On searching the appellant's hotel room, the police found a small cryovac clipseal bag containing 6.78 g of MDMA, which when analysed was found to have a purity of 79%.  Inside a black backpack, behind a curtain in the bedroom, police found a black Nike satchel bag.  Inside that bag were 15 bundles of cash.  Each bundle contained approximately $5,000 in cash and was wrapped with one or two elastic bands.  In total there was $75,170 in cash.  On a kitchenette counter in the room, police located a tub of elastic bands that matched those found on the cash that had been seized.  On a TV cabinet police located working digital scales on which traces of MDMA and methylamphetamine were later detected.  Also found were a glass smoking implement which had traces of methylamphetamine on the inside surfaces, and a clipseal bag containing three oxazepam tablets.  A further two bundles of cash, consisting of $1,850 and $850 respectively, were found in a Louis Vuitton purse, one of which was wrapped in an elastic band.  Police found three mobile telephones, all of which were protected by PINs.[8]

   [8] ts 13 - 14.

6. Many of the items seized by police were subjected to forensic analysis.  DNA consistent with that of the appellant was found on the black backpack and the cryovac clipseal bag.[9]

   [9] ts 14.

7. The appellant was arrested and interviewed.  During the interview he admitted that he was on parole at the time of the offences.  He was subject to regular urinalysis as a condition of his parole and suspected that the urine sample that he had recently given would be positive and would result in him being arrested and returned to prison.  Because of this he and his partner booked in to stay at a hotel to 'chill out' before he was returned to prison.  The appellant said that the night before he was arrested, he had had two friends visit him at the hotel but did not want to say who they were.  He gave 'no comment' answers to all other questions relating to his drug use, the clipseal bag containing the MDMA, the smoking implement, and the mobile telephones found in the hotel room.  He claimed that he used the scales to weigh gold and denied using them to weigh drugs.   He claimed that he could not remember the PINs to the mobile telephones.  He provided one number, but it proved to be incorrect.[10]

   [10] ts 14 - 15.

8. The appellant was released on bail.  He was still subject to bail as at 16 February 2022 when police executed a search warrant at his home in Dianella.  In a corner of the living room police located a black foam exercise roller.  Inside the roller was a black plastic box wrapped in an elastic band.  Inside the box were clipseal bags containing three separate quantities of a white crystal substance. Later examination revealed that the substance was methylamphetamine with a total weight of 107.1 g and purity ranging between 52% and 74%.[11] 

   [11] ts 16 - 17.

9. The outside of the box containing the methylamphetamine was swabbed for DNA.  DNA consistent with that of the appellant and his partner was detected.[12] 

   [12] ts 16.

10. Police also located two sets of digital scales and two mobile telephones belonging to the appellant.  The appellant said that one set of scales no longer worked and the other set was used for weighing methylamphetamine for personal use.  He declined to provide the PINs for the mobile telephones.  Police were later able to download the contents of one of the mobile telephones, which revealed activity between 10 and 16 February 2022.  In that period the appellant had sent and received messages consistent with the sale of methylamphetamine.  The State did not contend that the messages directly related to the appellant selling methylamphetamine, but there was indirect reference to transactions taking place.[13] 

    [13] ts 16 - 17.

11. It was contended by the State, and accepted by the appellant, that the methylamphetamine found at his house was to be sold by him for a profit and that he was engaging in the distribution of methylamphetamine for commercial gain.[14]

    [14] ts 17 - 18.

Personal circumstances

1. The appellant was 41 years old at the time of sentencing.  He was born in Perth and had a difficult childhood, marked by his mother's alcoholism and his father's violence.  He was also sexually abused by his stepfather.[15]

   [15] ts 37.

2. The appellant was educated to year 10.  He then commenced an apprenticeship as a boilermaker but did not complete it.  He thereafter did some work in rigging and general construction.  He has completed a number of courses but has struggled with drug addiction for many years.[16]

   [16] ts 37, 39 - 40.

3. The appellant has been in a stable relationship for 10 years and has two teenage children from a prior relationship.[17] 

   [17] ts 37.

4. The appellant has an extensive criminal record.  His adult offending includes offences of burglary, assault, breach of bail, damage, traffic offences and armed robbery.  Though there are relatively few drug offences, his drug addiction was said to be the primary cause of this offending history.  He was on parole at the time of the first two offences.[18] 

   [18] ts 32, 38 - 40.

Sentencing remarks

1. After referring to the facts of the offending the learned sentencing judge noted that after being released from prison on parole the appellant did not use methylamphetamine for about six months, but then relapsed.  In the period leading up to the October 2020 offending he was using approximately 1 g of methylamphetamine a day.[19] 

   [19] ts 35 - 36.

2. In relation to the February 2022 offence the sentencing judge noted that the appellant accepted that he should be sentenced on the basis that he was a mid‑level user/dealer for profit.[20]

   [20] ts 36.

3. The sentencing judge referred to the maximum penalties and then turned to the issue of seriousness.  In relation to the February 2022 offending his Honour said that there was a significant quantity of methylamphetamine involved, with a purity of 52% ‑ 74%, which was well in excess of the trafficable quantity of 28 g (resulting in the maximum penalty being life imprisonment).  The offending was committed for commercial purposes, though the sentencing judge accepted that the appellant was selling drugs partly to fund his own heavy drug use.  The extent of the commerciality was reflected by the sum of $75,170 found in the appellant's possession in October 2020, when he was also found in possession of a relatively small quantity of MDMA for his own use.  His Honour then said:[21]

   Your offending is not to be regarded as isolated or one‑off.  Although you are only to be sentenced for the offending of which you have been convicted, the offending must be considered in the context of and against a background of you being involved in drug dealing activities over an extended period of time.

   [21] ts 36 - 37.

4. Other factors that the sentencing judge took into account were the fact that the October 2020 offending took place while the appellant was on parole and that the February 2022 offending took place while the appellant was on bail.  He accepted that the appellant pleaded guilty at a relatively early stage and allowed a discount of 20% for the first offence, 15% for the second offence and 17.5% for the third offence.[22] 

   [22] ts 37, 41.

5. The sentencing judge also took into account the personal circumstances of the appellant, including that he had grown up in circumstances of dysfunction and disadvantage.  He accepted that the appellant had undertaken some courses whilst in prison and had shown a commitment to his rehabilitation.  He referred to the appellant's long criminal record as indicating an entrenched and long‑standing disregard for the law, which appeared to be related to the appellant's serious drug problem. Whilst the prior criminal record was not an aggravating factor, it underlined the need for personal deterrence and protection of the community.[23] 

   [23] ts 37 - 40.

6. The sentencing judge considered that the appropriate total effective sentence was one of 7 years 10 months' imprisonment and achieved this by ordering that the sentence of 10 months' imprisonment for the second offence be served cumulatively with the sentence of 7 years' imprisonment for the third offence.  His Honour said that the 10‑month sentence of imprisonment for the second offence had been reduced for totality reasons.  The total sentence was backdated to commence on 16 February 2022 to take into account time that the appellant had already spent in custody.[24]

   [24] ts 42.

Grounds of appeal

1. There are two grounds of appeal.  They are as follows:

   1.The sentence imposed in respect of the charge of possession of a trafficable quantity of methylamphetamine with intent to sell or supply it to another was manifestly excessive.

   2.The total effective sentence imposed breached the first limb of the totality principle.

Appellant's submissions

1. The appellant concedes that the offence of possession of a trafficable quantity of methylamphetamine with intent to sell or supply it to another was a serious offence having regard to the quantity of drugs, that the appellant was involved in an ongoing commercial drug dealing enterprise and that he was on bail for the earlier charges at the time of the commission of that offence.  However, he submits that having regard to his personal circumstances and comparable cases involving similar or greater quantities of methylamphetamine, the sentence of 7 years' imprisonment falls outside the range of sound sentencing discretion.[25] 

   [25] Appellant’s submissions [12] - [17].

2. In support of his submission that the sentence for the third offence was inconsistent with sentences imposed in comparable cases the appellant referred to the following cases:[26]  VRW v The State of Western Australia;[27] Watson v The State of Western Australia;[28] Curry v The State of Western Australia;[29] ATH v The State of Western Australia;[30] McGrath v The State of Western Australia;[31] Nickson v The State of Western Australia;[32] Vidich v The State of Western Australia;[33] and Musulin v The State of Western Australia.[34]  In oral submissions counsel for the appellant also referred to Humes v The State of Western Australia.[35]

   [26] Appellant’s submissions [14].

   [27] VRW v The State of Western Australia [2022] WASCA 177.

   [28] Watson v The State of Western Australia [2022] WASCA 80.

   [29] Curry v The State of Western Australia [2022] WASCA 36.

   [30] ATH v The State of Western Australia [2021] WASCA 149.

   [31] McGrath v The State of Western Australia [2021] WASCA 118.

   [32] Nickson v The State of Western Australia [2021] WASCA 40.

   [33] Vidich v The State of Western Australia [2020] WASCA 171.

   [34] Musulin v The State of Western Australia [2020] WASCA 18.

   [35] Humes v The State of Western Australia [2023] WASCA 110.

3. As regards the second ground, the appellant submits that the total effective sentence of 7 years 10 months' imprisonment does not bear a proper relationship to the overall criminality of the offending conduct, having regard to the guilty pleas and the matters personal to the appellant.[36]

   [36] Appellant’s submissions [18] - [21].

Merits of the appeal

1. The relevant principles relating to appeals against sentence, where there is a claim that an individual sentence is manifestly excessive or that the total effective sentence breaches the totality principle, are well established.  Those principles have been stated many times and have been conveniently summarised in Kabambi v The State of Western Australia.[37]  It is unnecessary to repeat them.

   [37] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

2. The major sentencing considerations for offences of dealing or trafficking dangerous drugs of addiction are general and personal deterrence.  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.  That is because it can be presumed that the greater the quantity and the purity, the greater the harm which may be done to the community.  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.  The degree of purity is often regarded as significant.  Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.[38] 

   [38] Gaskill v The State of Western Australia [2018] WASCA 8 [128].

3. The maximum penalties for the offences in this case are as follows. For the first offence, possession of a prohibited drug contrary to s 6(2) of the Misuse of Drugs Act, 2 years' imprisonment or a fine of $2000, or both. For the second offence, possession of property reasonably suspected of having been unlawfully obtained contrary to s 417(1) of the Criminal Code, 7 years' imprisonment. For the third offence, possession of a trafficable quantity of methylamphetamine with intent to sell or supply contrary to s 6(1)(a) and s 34(1)(a) of the Misuse of Drugs Act, life imprisonment.

4. As to the seriousness of the third offence, the quantity of 107.1 g possessed by the appellant is nearly four times the trafficable quantity prescribed for methylamphetamine.  Furthermore, it is important to bear in mind that the quantity possessed at the time of arrest must be seen in the context that the sentencing judge found that the appellant had been involved in commercial drug dealing over an extended period, a finding that is not challenged.  The role of the appellant in the offending is also clearly important.  He was not a mere courier or aider, who only came into possession of the drugs for a short time or for modest reward.  He was, and accepted that he was, a mid‑level commercial dealer.

1. The third offence was also aggravated by the fact that it was committed when the appellant was on bail for the first two offences, one of which was also a drug offence.  This shows a disregard for the law and a determination to continue dealing in drugs despite the known consequences.  There was plainly a heightened need for personal deterrence to be incorporated in the sentence.

2. We have had regard to the cases referred to by the appellant.  When all of the relevant circumstances of those cases are taken into account, it is apparent that the sentences imposed in them do not support the claim that the sentence for the third offence was manifestly excessive. The appellant placed particular emphasis on the amounts of drugs involved in the various cases under comparison.  It can be misleading to view cases primarily from the perspective of the quantity of drugs involved without proper regard for the role of the offender and whether the offending was part of a course of conduct, as it was here.   

3. In VRW, the quantity of drugs involved was 3 kg of methylamphetamine, but the offender was a courier, was of prior good character, had pleaded guilty at the first reasonable opportunity and received a discount of 25%, his risk of reoffending was low, and, importantly, he had cooperated with police.  For those reasons that case is not a useful comparator. 

4. In Watson, the quantity of drugs involved was 3.999 kg of methylamphetamine.  However, the offender was described as not being a decision‑maker, was paid the relatively small sum of $1,000, pleaded guilty at an early stage and received a 20% discount, and his only prior offences were of a traffic nature.  He was sentenced to 10 years' imprisonment which was upheld on appeal.  The total effective sentence in that case was 13 years.  The significant differences between that case and the present do not support a conclusion that the outcome is inconsistent with the sentence imposed on the appellant.

5. In Curry, the quantity of drugs involved was 248 g of methylamphetamine and the offender was also in possession of $146,000 in cash.  The offender in that case was in joint possession of the drugs with another, but his precise role could not be identified.  He pleaded guilty at a relatively early stage and received a discount of 20%.  The total effective sentence of 7 years 2 months' imprisonment was upheld on appeal.  The case is comparable to that of the appellant, but the outcome does not support a claim that the appellant's sentence was manifestly excessive.  Though the offender in Curry possessed larger quantities of drugs and cash there was no evidence that he did so as part of an extended period of drug dealing.

6. In ATH, the offender was convicted after trial of offences relating to 977 g of methylamphetamine. In that case the offender's role was to drive a vehicle to collect the drugs and there was no evidence that she knew the quantity involved.  She had a minor criminal record and the only issue on appeal was whether the sentence infringed the parity principle.  She received a sentence of 7 years' imprisonment.  Having regard to the very different role of the offender in that case, the outcome is not inconsistent with the sentence imposed on the appellant.

7. In McGrath, the quantity of drugs involved was 985 g of methylamphetamine. The offender was a courier whose role was described as being towards the lowest end.  His offending was a single instance, and he did not know the quantity of drugs that he was to convey.  He pleaded guilty at the first reasonable opportunity and received a 25% discount.  The sentence of 8 years' imprisonment was reduced on appeal to 5 years 9 months.  Again, the role of the offender in that case was different to that of the appellant.  

8. In Nickson, 505.59 g of methylamphetamine was involved. The offender in that case was a commercial drug dealer and he received a sentence of 7 years 6 months' imprisonment for the charge relating to the methylamphetamine and a total effective sentence of 11 years' imprisonment. The individual sentence for the methylamphetamine was not challenged on appeal. Despite the larger amount of drugs, the outcome does not support a conclusion that the appellant's sentence for the third offence was manifestly excessive.

9. In Vidich, the offender was convicted after trial in respect of offences involving 111 g of methylamphetamine for which he received a sentence of 6 years' imprisonment.  The offender in that case had a prior record which was described as neutral.  He had played a significant role in distribution of the drugs.  The only challenge on appeal was to the total effective sentence, which was one of 7 years 6 months.  That outcome does not support the appellant's claim that the sentence for the third offence was manifestly excessive.

10. In Musulin, the offender pleaded guilty to possession of 178.2 g of methylamphetamine and possession of $125,000 in cash.  His role was in storing the drugs and involved a single instance.  He received a discount of 25% on his sentence for his pleas of guilty.  A total effective sentence of 8 years' imprisonment was upheld on appeal.  That sentence does not support the appellant's claim that the sentence for the third offence was manifestly excessive.

11. As to Humes, counsel for the appellant said he relied on that case not because it was comparable, but because Quinlan CJ had referred in his reasons to sentences for cases involving between 100 g and 400 g of methylamphetamine ranging between 4 years 9 months' imprisonment to 7 years' imprisonment.[39]  The appellant sought to derive some support from this that the sentence imposed for the third offence was manifestly excessive.  Plainly, it does not provide such support since the sentence imposed on the appellant was not outside the range referred to.  In any event, when seen in context, it is apparent that his Honour was not suggesting that a fixed range had been established for this particular category of offending.  There is no fixed range.

    [39] Humes [25]; referring to The State of Western Australia v Delaney [2020] WASCA 93 and Musulin.

12. We have also considered the following cases: Le v The State of Western Australia;[40] Den Ridder v The State of Western Australia;[41] Walker v The State of Western Australia;[42] Blasco v The State of Western Australia;[43] and Cochrane v The State of Western Australia.[44]

    [40] Le v The State of Western Australia [2022] WASCA 163.

    [41] Den Ridder v The State of Western Australia [2022] WASCA 113.

    [42] Walker v The State of Western Australia [2022] WASCA 100.

    [43] Blasco v The State of Western Australia [2021] WASCA 26.

    [44] Cochrane v The State of Western Australia [2021] WASCA 5; (2021) 57 WAR 262.

13. All of the cases referred to relate to offences for which the maximum penalty was life imprisonment.  The increase in that penalty from 25 years' imprisonment became effective on 18 September 2017.[45]  Prior to the increase sentences for dealing in ounces rather than kilograms of methylamphetamine of between 5 years and 7 years' imprisonment were commonly imposed.  An increase in the maximum penalty should be expected to cause an increase in sentences, and that is reflected in the cases referred to.

    [45] Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017 (WA) s 2(b) and s 7(2).

14. In the present case the appellant's role did not involve a one‑off or single instance of criminal activity.  As the sentencing judge properly noted, the appellant's role was one of involvement in commercial drug dealing over an extended period of time.  He was a mid‑level drug dealer, engaged in dealing for a profit as well as for the purpose of feeding his own habit.  This places into proper context the quantity of the drugs involved.  His offending was aggravated by being committed whilst on bail for other drug related offending. 

15. As to ground 2, there is no suggestion that the sentences for the first two offences are in error.  That is unsurprising.  The sentence for the second offence was, if anything, a lenient sentence when regard is had to the amount of cash involved, the circumstances of the offending and the maximum penalty for that offence (7 years' imprisonment). The relatively low sentence for that offence is accounted for by the fact that the sentencing judge reduced it for totality reasons.  Nor can there be any sensible suggestion that a cumulative sentence for the second offence was inappropriate, given that it was serious independent offending conduct.  Thus ground 2 depends entirely upon the success of ground 1.   

16. The grounds of appeal have no reasonable prospect of succeeding.  In these circumstances, 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.

AZ

Associate to the Honourable Justice Hall

11 AUGUST 2023