Than-Htay v The State of Western Australia

[2011] WASCA 68

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   THAN-HTAY -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 68

CORAM:   McLURE P

NEWNES JA
HALL J

HEARD:   17 FEBRUARY 2011

DELIVERED          :   23 MARCH 2011

FILE NO/S:   CACR 75 of 2010

BETWEEN:   STEPHEN GEORGE THAN-HTAY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :SCOTT DCJ

File No  :IND 1012 of 2009

Catchwords:

Criminal law - Appeal against sentence - Possession of 157 g of methylamphetamine - High purity - Prior record of drug offences - Offences committed whilst on parole - Commercial dealing - Total effective sentence of 8 years not disproportionate to overall sentence

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)

Result:

Application for extension of time granted
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr S A Vandongen SC

Respondent:     Mr R G Wilson

Solicitors:

Appellant:     Michael Tudori & Associates

Respondent:     Director of Public Prosecutions (WA)

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

Basilio v The State of Western Australia [2010] WASCA 202

Koncurat v The State of Western Australia [2010] WASCA 184

McDougall v The State of Western Australia [2009] WASCA 232

Roffey v The State of Western Australia [2007] WASCA 246

RP v The State of Western Australia [2010] WASCA 75

Sabau v The State of Western Australia [2010] WASCA 3

The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119

Tran v The State of Western Australia [2010] WASCA 38

Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107

Wilson v The State of Western Australia [2010] WASCA 82

Woods v The Queen (1994) 14 WAR 341

1. McLURE P:  I agree with Hall J.

2. NEWNES JA:  I agree with Hall J.

3. HALL J: The appellant was convicted after trial of three counts of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA). He was sentenced to a total effective sentence of 8 years' imprisonment. He appeals that sentence on the ground that it is said not to bear a proper relationship to the overall criminality involved in the offending.

Extension of time

1. The appellant was sentenced on 27 April 2009.  The appeal notice was filed on 1 June 2010.  Accordingly, the notice was two weeks out of time and an extension of time is required.  On 7 December 2010 Mazza J granted leave in respect of the single ground of appeal and ordered that the application for an extension of time be referred to the hearing of the appeal.

2. An affidavit in support of the application for extension of time to appeal was sworn by the appellant on 27 May 2010.  In that affidavit he deposed that, at the time of his sentencing, he advised his then lawyer to prepare and file an appeal notice in relation to sentence.  He states that he was subsequently advised by his new lawyer that an appeal notice had not been filed.  A notice was filed soon after.

3. The delay involved was not a lengthy one and it appears that the delay is not attributable to the appellant.  The respondent concedes that it would be appropriate in these circumstances to extend time.

The facts

1. The facts as found by the trial judge were not in dispute.  They were that on 4 June 2008 police executed a search warrant at the appellant's home in Inglewood.  During the course of the search a plastic makeup jar containing 5.97 g of methylamphetamine at a purity of 77% was found in the pocket of the jeans that the appellant was wearing.  This quantity related to count 1.

2. A car owned by the appellant and recently driven by him was also searched by the police.  A backpack and a 'bumbag' were found in the car.  In the 'bumbag' there was a wallet containing $765 in cash and identification documents belonging to the appellant.  In the backpack

there was a sealed can with a false bottom in which were two plastic makeup jars.  Inside one jar was approximately 9.78 g of methylamphetamine at 73% purity and in the other 8.65 g of methylamphetamine at 81% purity.  Two clipseal bags were also found in the can which together contained a total of 1.12 g of methylamphetamine.  The total quantity secreted in the can was 19.55 g.  This quantity related to count 2 of the indictment.

1. Under the front passenger seat of the vehicle police located a Scotchguard can, also with a false bottom.  This was found to contain a makeup jar identical to those found in the other locations.  In this jar there was 3.76 g of methylamphetamine at 67% purity.  There was also a clipseal bag containing 86.5 g of methylamphetamine at approximately 77% purity.  Further clipseal bags containing 16.3 g at 12% purity, 2.2 g at 50% purity, 2.8 g at 30% purity and 0.6 g were also found at this location.  The total quantity found in the Scotchguard can was 112.16 g.  This quantity related to count 3 of the indictment.

2. His Honour noted that street purity of methylamphetamine varies between 10% and 20%, though purities of less than that can occur.  His Honour noted that the high purity in this case was such that the drugs were capable of being cut or 'jumped' by at least a multiple of around five.  That means that the quantity found here, if diluted, would be the equivalent of in excess of 680 g of methylamphetamine at street level purity.  His Honour said that there was no doubt that the value of the methylamphetamine was some hundreds of thousands of dollars.

3. At trial, the appellant gave evidence that on the night prior to 4 June 2008 he had been staying at a motel with a number of friends and acquaintances.  He said that those people were in his room and had access to his car.  He admitted that he had the drugs that were the subject of count 1, but that they were for his own use.  He denied knowing that the drugs the subject of counts 2 and 3 were in his vehicle.  Clearly, his evidence in that regard was rejected by the jury.

Sentencing remarks

1. His Honour took into account the personal circumstances of the appellant.  In this regard, he had the benefit of a pre‑sentence report and psychological and psychiatric reports. 

2. His Honour noted that aspects of the psychological report were concerning.  That report dated 18 April 2010 includes the following passage:

   Of concern is that Mr Than‑Htay attributed his offending behaviour to external factors where other people were to blame for his problems.  He does not appear to have learnt from his mistakes or completely understand the complexities involved in abstaining from substances and offending behaviour in the community, despite previous opportunities offered by the Department of Corrective Services.  He minimised the severity of the offence and the impact it could have had on others, had limited insight into his offending behaviour and displayed a lack of genuine motivation to change.  As such, there appears to be a high risk of re‑offending behaviour in the future, although this could potentially be mitigated through appropriate interventions.  His personal characteristics such as impulsivity also increase the likelihood that he will be involved in offending behaviour in the future, as is (sic, does) his persistent and extensive history of offending behaviour from an early age.

   The probability of meaningful long‑term change is low if he does not address his underlying issues and criminogenic factors such as substance abuse, antisocial associates, poor attitudes towards the justice system, the belief that he is unfairly treated by people, and personal/emotional factors including poor problem solving and coping skills, and difficulties with emotional management (page 2).

3. The psychological report also included passages which referred to statements made by the appellant to the psychologist during the course of an interview.  One of these referred to the appellant's motivation for committing the offences.  The passage in question was read out by his Honour and defence counsel took instructions and confirmed that the passage was an accurate record of what the appellant had told the psychologist.  The passage in question reads:

   Mr Than‑Htay further added that as he was involved in a gang where he didn't have a choice, although later stated that he chose to deal drugs as he had planned to resign from the gang once he had made one million dollars.  Mr Than‑Htay also blamed his partner at the time, stating that she continued to spend his money, which put him further behind in his plans and that he had to deal more drugs to compensate for the money his partner had spent.  Mr Than‑Htay stated that with the money earned he had planned to open approximately ten coffee shops and other businesses (page 4).

4. His Honour also noted that the reports of both the psychiatrist and psychologist referred to attempts at rehabilitation.  His Honour said that he had real doubts as to the appellant's enthusiasm for rehabilitation, particularly in view of the fact that he had told the psychologist that he intended to continue to use drugs when released, although claiming that it would not rule his life and that he would only consume them socially.  His Honour noted that that was a surprising prediction on the part of the appellant given that drugs had regulated his life for some years to detrimental effect.

5. His Honour noted that the appellant had a significant criminal record, commencing in 1991.  Significantly, it included a conspiracy to sell or supply drugs in 1993 for which the appellant received a 12 month term of imprisonment.  In July 2004 the appellant was convicted of possession of amphetamines with intent to sell or supply and was sentenced to 4 years' imprisonment.  The present offences were committed whilst the appellant was on parole for the 2004 offences.  In regard to the prior offending, his Honour said:

   Whilst your record doesn't aggravate the sentences to be imposed by me today, that record does demonstrate a continuing failure on your part to comply with the law, and in respect to the convictions in 2004 and 1993, demonstrates that you have not been deterred from [sic] those sentences from continuing to deal in drugs.

6. His Honour noted that there were very few mitigating factors in the appellant's favour.  He also noted the significance of general and personal deterrence when dealing with offences of this nature.  His Honour noted the very high purity of the drugs and concluded that the appellant was a user/dealer at the higher end.  He found that the appellant's motivation was primarily commercial gain but also the servicing of his and his ex‑partner's drug use.

7. The sentences imposed were:  count 1 - 18 months' imprisonment, count 2 - 3 years' imprisonment, count 3 - 8 years' imprisonment, all of which were ordered to be served concurrently.  His Honour gave express attention to the total effective sentence:

   As to totality, I consider that the effective term of 8 years imprisonment is an appropriate term and as a consequence I am satisfied that count 3 will be the head sentence and the other two terms of imprisonment will be served concurrently.

8. Notwithstanding the criminal record and the rehabilitation issues, his Honour considered that there 'ought to be some light at the end of the tunnel'.  Accordingly, he ordered that the appellant be eligible for parole.

Ground of appeal - totality

1. The single ground of appeal relies on what has been described as the first limb of the totality principle.  That limb 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:  Roffey v The State of Western Australia [2007] WASCA 246 [24] and Woods v The Queen (1994) 14 WAR 341.

2. In considering whether a sentence bears a proper relationship to the overall criminality, it is useful to consider comparable cases.  Care must be taken to recognise that each case will differ in regard to the facts and personal circumstances of the offender.  However, the effect of differing personal circumstances and antecedents will be reduced in those matters where deterrence is the dominant sentencing consideration:  Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [46] (McLure JA). It is well recognised that cases involving the possession of significant quantities of prohibited drugs fall into this category.

Comparable cases

1. A review of appeal cases concerned with sentences imposed for drug offences was recently conducted by the Court of Appeal in The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 [124] ‑ [141] (Buss JA). In that case, Miller JA noted that for offences involving possession of substantial quantities of methylamphetamine with intent to sell or supply, sentences of between 6 to 10 years' imprisonment had been imposed.

2. In Atherton the appellant was convicted of nine counts of possession of a variety of prohibited drugs.  Three of those counts related to cannabis totalling 536 g, three counts related to MDMA totalling 1,038 g and three counts related to methylamphetamine totalling 1,026 g.  The purity of the methylamphetamine was between 8% and 33% with the bulk of it falling between 8% and 13% purity.  An aggregate sentence of 8 years was set aside and a sentence of 11 years substituted.

3. A direct comparison between Atherton and this case is difficult given that that case involved more charges, three different types of drugs and larger quantities of methylamphetamine.  On the other hand, the purity involved in this case is very significantly higher.

4. In Atherton, the last two counts were committed whilst on bail.  At [165] Buss JA said that this was a significant aggravating feature with respect to those offences.  It was said to show a blatant disregard for the law.  That is a factor which can be compared to the commission by the appellant in this case of offences whilst he was on parole.

5. It is unnecessary to repeat the review that was undertaken in Atherton.  Taking into account the findings made by the trial judge, in particular the high purity, commercial motivation and commission of the offences whilst on parole for similar offences involving the same drug, it is not apparent that the effective sentence imposed here was disproportionate to the overall criminality involved.

6. Counsel for the appellant made reference to a number of cases that had been decided since Atherton.  I understand that the purpose of this was to support an argument that the sentence here was inconsistent with sentences imposed in those other cases.  Again, allowance must be made for differences between those cases and this one and for the fact that there will always be a permissible range of sentences.

7. In McDougall v The State of Western Australia [2009] WASCA 232 the appellant was found guilty after trial of one count of possession of cocaine with intent to sell or supply. The quantity involved was 28.1 g at 67% purity. An appeal against a sentence of 4‑1/2 years was dismissed. As is obvious, that case involved a significantly smaller quantity of a different drug. Furthermore, in McDougall, the appellant had favourable personal circumstances and a lack of serious prior offending.  Although less weight is given to matters personal to the offender in drug trafficking offences, there was not, as in the present case, any element of persistence or blatant disregard for the law.

8. In Sabau v The State of Western Australia [2010] WASCA 3, the appellant entered a late plea of guilty to two counts of possession of prohibited drugs with intent to sell or supply. One count related to a quantity of heroin, being 391 g at 12% to 15% purity, and the other to a quantity of cocaine, being 28 g at 63% purity. A total effective sentence of 7 years' imprisonment was upheld on appeal. The appellant in that case had a criminal record but no prior convictions for drug offences. The sentence of 7 years imposed on count 1 for the quantity of heroin was referred to as being at the high end but not outside the range of sound sentencing discretion. Again, the utility of making a comparison is limited given the different antecedents, the different quantities of drugs and different purities.

9. In Tran v The State of Western Australia [2010] WASCA 38, the appellant was found guilty after trial of two counts of attempting to possess methylamphetamine with intent to sell or supply. The appellant had made arrangements for two couriers to bring quantities of methylamphetamines from Sydney and deliver them to her in Perth. The quantities were 27.3 g at 33% purity and 132 g at 70% purity. She also pleaded guilty to counts of possessing 37 g of methylamphetamine with intent to sell or supply, possessing 41 g of heroin with intent to sell or supply and possessing cannabis with intent to sell or supply, being 185 plants. The appellant in that case had two previous convictions for summary offences involving possession of drugs. She was described as engaging in drug dealing for commercial gain and had procured another person to act as a courier. The total effective sentence of 9 years was described as a heavy penalty when considered in the context of the appellant's overall offending but could not be said to be a sentence that did not bear a proper relationship to the overall criminality [37] (Newnes JA). The offending conduct in Tran was clearly more serious insofar as it involved three different types of drugs and arrangements for others to act as couriers.  On the other hand, that case did not involve the seriously aggravating circumstance of the offences having been committed whilst the appellant was on parole for similar offences as here.  Taking those differences into account, the higher effective sentence imposed in Tran does not appear to be inconsistent with the total effective sentence imposed here.

10. In Koncurat v The State of Western Australia [2010] WASCA 184, the appellant pleaded guilty to one count of possession of methylamphetamine with intent to sell or supply being 4.09 g at 18% purity, one count of possession of MDMA with intent to sell or supply being 1,023 g and one count of preparing MDMA. He also pleaded guilty to four other charges relating to possession of about $15,000 in cash and a pill press. A sentence of 8½ years was not set aside on appeal. In that case a very much larger quantity of drugs was involved and the appellant was involved in production of the drugs. Reference was made to it being clear that the appellant had engaged in the business of producing and possession of ecstasy for commercial purposes. On the other hand, there were a number of mitigating factors including fast track pleas of guilty, genuine remorse and acceptance of responsibility, good antecedents, the absence of any significant criminal history, a history of depressive illness and ADHD and the appellant's strong desire to rehabilitate himself.

11. In Basilio v The State of Western Australia [2010] WASCA 202, the appellant was convicted after trial of two counts of attempting to obtain methylamphetamine with intent to sell or supply, being 869 g at 55% to 59% purity, and 139 g at 34% to 37% purity, one count of possession of methylamphetamine with intent to sell or supply being 17.7 g at 39% to 56% purity and one count of possession of MDMA with intent to sell or supply being 6.86 g. A total effective term of 13 years' imprisonment was set aside and the appellant was resentenced to 10 years' imprisonment. The appellant's offending was said to be undoubtedly very serious and the quantity and purity of drugs and the substantial amounts of cash to which the appellant had access made it apparent that the appellant was a commercial dealer at a high level. Whilst the total quantity of methylamphetamine in Basilio was greater than in Atherton, it was noted that Atherton involved a number of different types of drug, that the offending occurred over a longer period and that some of the offending occurred whilst the offender was on bail for earlier offences.

1. The respondent also referred to a number of cases that had been decided since Atherton. 

2. In Wilson v The State of Western Australia [2010] WASCA 82, the appellant pleaded guilty to three counts on two indictments, being one count of conspiring to sell prohibited drugs and two counts of possessing a prohibited drug with intent to sell or supply. The counts involved 500 MDMA tablets, 32.5 g of methylamphetamine and approximately 116 g of methylamphetamine with purity ranging from 9% to 39%. A total effective sentence of 6 years and 3 months' imprisonment was upheld on appeal. In relation to the last count, the Court of Appeal noted that whilst the purity of the drug was relatively low and the appellant had pleaded guilty, the offence was 'seriously aggravated by the fact that it was committed while the appellant was on bail on other drug‑related charges'.

3. In RP v The State of Western Australia [2010] WASCA 75, the appellant entered a fast track plea of guilty to one count of possession of MDMA with intent to sell or supply it to another, being 593 MDMA tablets weighing 149.18 g. A sentence of 34 months' imprisonment was upheld on appeal. In addition to a fast track plea of guilty, the appellant had provided assistance to the authorities.

Merits of the appeal

1. The principles applicable to an appeal against sentence are well established and have recently been summarised in Wilson.  This is a case in which it is contended that an implied error has occurred.  Bearing in mind that the imposition of sentences involves the exercise of a discretion, error can only be established by demonstrating that the sentence was not one that could be reached by a judge properly exercising that discretion.

2. In my view, having regard to the cases referred to, it is not apparent that the sentence imposed in this case did not bear a proper relationship to the overall criminality involved.  Reference to the quantities and purities of drugs involved in other cases does not necessarily adequately reflect the range of sentencing factors that produced the sentences in those cases. 

3. In any event, the purity and therefore the value of the methylamphetamine in this case was significant.  The fact that the appellant showed little insight into his offending or enthusiasm for change was relevant.  It was also significant that the appellant committed the present offences whilst on parole for similar offences.  His persistence and evident lack of regard for the law heightened the need for personal deterrence.

Conclusion

1. In my view, it has not been demonstrated that the aggregate sentence of 8 years imposed in this case reflects any error in sentencing discretion.  I would grant an extension of time but dismiss the appeal.