The State of Western Australia v Fleming

[2010] WASCA 162

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- FLEMING [2010] WASCA 162

CORAM:   OWEN JA

BUSS JA
MAZZA J

HEARD:   23 JUNE 2010

DELIVERED          :   5 AUGUST 2010

FILE NO/S:   CACR 140 of 2009

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Appellant

AND

CHRISTOPHER GERARD FLEMING
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :KENNEDY CJDC

File No  :IND 1001 of 2009

Catchwords:

Criminal law - Sentencing - Possession of a prohibited drug with intent to sell or supply to another - Assaulting a public officer - Total effective sentence of 2 years' immediate imprisonment - State appeal against sentence - Sentence manifestly inadequate - Respondent re-sentenced

Legislation:

Nil

Result:

Leave to appeal granted on ground 2, but refused on ground 1
Appeal allowed
Respondent re-sentenced

Category:    B

Representation:

Counsel:

Appellant:     Mr J McGrath

Respondent:     Mr S B Watters

Solicitors:

Appellant:     Director of Public Prosecutions (WA)

Respondent:     Malcolm J Ayoub

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

Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49

Dixon v The State of Western Australia [2006] WASCA 255

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Quinn v The State of Western Australia [2006] WASCA 99

1. OWEN JA:  I agree with Buss JA.

2. BUSS JA: The respondent was convicted in the District Court, on his plea of guilty, on one count of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (count 1 on the indictment) and one count of assaulting a public officer who was then performing a function of his office or employment, contrary to s 318(1)(d) of the Criminal Code (WA) (count 2 on the indictment).

3. Kennedy CJDC imposed individual sentences as follows:

   (a)count 1:     2 years' immediate imprisonment;

   (b)count 2:     12 months' immediate imprisonment.

4. Her Honour ordered the sentences to be served concurrently.  The total effective sentence was therefore 2 years' immediate imprisonment.  She ordered that the terms of imprisonment commence on 15 September 2009, being the date of the sentencing hearing and disposition.  A parole eligibility order was made.

5. The sentencing judge also ordered that the sentences she had imposed be served concurrently with a term of immediate imprisonment that the respondent was then serving. 

6. The State appeals to this court against the sentencing decision.

The circumstances of the offending

1. On 23 December 2008, at 11.10 pm, police observed the respondent walking on Julia Street, Waikiki.  The police called on him to stop.  The respondent ignored this instruction and ran towards 11 Julia Street, which was a known 'drug house'.

2. Police chased the respondent and confronted him on the porch of the house at 11 Julia Street.  The respondent called out to the occupants of the house to open the door.  When confronted by the police, the respondent became very agitated and defensive.  He attempted to evade them.

3. Police responded by attempting to detain the respondent.  A violent struggle ensued.  For about five minutes, the respondent attempted to barge his way past the police.  He twisted his body violently, and he kicked out and punched at them.

1. Police instructed the respondent repeatedly to cease resisting and to comply with their demands.  He refused.  The respondent struck one of them on the head and kicked him in the stomach.  The police officer suffered cuts and bruises.  The respondent attempted to punch the other police officer, but did not actually strike him. 

2. During the struggle, the respondent removed a cylinder‑shaped plastic clipseal bag from his groin area.  He placed the bag on an upturned wooden table.  Police seized the bag.  Its contents were analysed.  The bag contained 100.6 g of a substance with 4% methylamphetamine and 5% pseudoephedrine.

3. When police searched the respondent they located two other plastic clipseal bags.  They contained dimethyl sulfone, a known cutting agent.  One bag had 8.99 g and the other 3.53 g. 

The existing sentence being served by the respondent when he was sentenced for these offences

1. When the respondent was sentenced for these offences on 15 September 2009, he was serving an existing sentence of 14 months' imprisonment for a variety of offences including reckless driving, failing to stop, driving without a licence and possession of prohibited drugs.  The existing sentence commenced on 23 December 2008 and did not expire until 22 February 2010.  He became eligible for parole on 23 July 2009, but had not been released.

The grounds of appeal

1. There are three grounds of appeal.  They read:

   1.The learned sentencing judge erred in law by making findings of fact in respect of count (1) for which there was no supporting evidence, namely that:

   (a)the methylamphetamine 'wasn't worth a great deal at all because it was 4 per cent';

   (b)if the respondent 'tried to sell this stuff at 4 per cent' he would 'end up getting killed'; and

   (c)the methylamphetamine was 'certainly usable' by the respondent and his 'mates'.

   2.The learned sentencing judge erred in law by imposing a sentence in respect of count (1) that was manifestly inadequate, in that the sentence:

   (a)was outside the range of sentences customarily imposed for such offending;

   (b)failed to adequately reflect the serious nature of the offence, given the quantity of the drug involved; and

   (c)failed to adequately reflect the need for general deterrence.

   3.The learned sentencing judge erred in law in her application of the totality principle and, consequently, in failing to order that the term in respect of count (2) be served cumulatively on the sentence imposed for count (1).

2. On 18 December 2009, Wheeler JA granted leave to appeal on ground 3 and referred the application for leave to appeal on grounds 1 and 2 to the hearing of the appeal.

3. It is convenient to deal, first, with ground 2, then ground 3 and, finally, ground 1.

Ground 2 of the appeal

1. A ground of appeal which alleges that a sentence is manifestly inadequate asserts the existence of an implicit error.

2. It is necessary, of course, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

3. The maximum penalty for the offence of possession of a prohibited drug with intent to sell or supply it to another, being count 1, is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the Misuse of Drugs Act.

4. In Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49, Miller AJA reviewed the sentencing authorities in relation to cases involving the possession of quantities of methylamphetamine with intent to sell or supply to another. His Honour said, relevantly:

   In cases involving smaller quantities of methylamphetamine (between 3 grams and 65 grams), sentences (where appropriate converted in accordance with the post-transitional provisions) have ranged from between 2 and 5 years.  Most cases involved pleas of guilty.  Examples from the last 10 years are:  Vodanovic v The Queen, unreported; CCA SCt of WA; Library No 960056; 9 February 1996 (24.5 grams of 2 per cent purity ‑ 2 years); Bellissimo (1996) 84 A Crim R 465 (20.8 grams of 6 per cent purity ‑ 3 years 10 months); Leonard v The Queen, unreported; CCA SCt of WA; Library No 990152; 29 March 1999 (sale of 22.4 grams of 8.5 per cent purity amphetamines ‑ 3 years 4 months); Nelis v The Queen [2000] WASCA 194 (three counts of selling and/or possession, including 54.75 grams of unknown purity ‑ 4 years 8 months); Marchesano (2000) 116 A Crim R 237 (41.1 grams of 20 per cent purity and 1.36 grams of 20 per cent purity ‑ 2 years 4 months); Watt v The Queen [2000] WASCA 354 (6.74 grams of between 18 ‑ 22 per cent purity ‑ 2 years 8 months); R v Weston [2000] WASCA 389 (41.77 grams of unknown purity ‑ 1 year 8 months, suspended for 2 years); Mishal v The Queen [2001] WASCA 328 (20 grams of 2 per cent purity ‑ 2 years); R v Hafner [2002] WASCA 211 (attempted sale or supply of 21.2 grams of 36 per cent purity ‑ 4 years); Vogel v The Queen [2002] WASCA 261 (3.8 grams of 11 per cent purity and 2.86 grams of 37 per cent purity ‑ 2 years); Marker v The Queen (2002) 135 A Crim R 55 (two counts, one of 53.9 grams of 41 per cent purity and one of 0.1 gram of 59.3 per cent purity respectively ‑ 4 years 5 months); Hiron v The Queen [2003] WASCA 310 (over 120 Grams of varying purity in three counts leading to a total term of 4 years 8 months' imprisonment); Hollingsworth v The Queen [2004] WASCA 73 (9.2 grams of between 3 ‑ 5 per cent purity ‑ 2 years, but concurrent with other offences and cumulative on sale of 29 grams of methylamphetamine, making a total of 5 years); Schlenka v The Queen [2004] WASCA 142 (12.7 grams of 47 per cent purity ‑ 1 year 8 months' imprisonment); Samuel v The State of Western Australia [2004] WASCA 154 (6.25 grams of 25 per cent purity ‑ 2 years, suspended for 2 years); Le v The Queen (2004) 147 A Crim R 269 (two counts involving methylamphetamine of respectively 6.94 grams of 81 per cent purity and 27.9 grams of 83 per cent purity ‑ 2 years 1 month and 4 years 2 months cumulative); Wong v The State of Western Australia [2004] WASCA 286 (26 grams of 6 per cent purity ‑ 2 years 6 months, but cumulative with other sentences); Colangelo v The State of Western Australia [2004] WASCA 294 (53.32 grams of varying purity ‑ 4 years, but cumulative with other sentences); Olomi v The State of Western Australia [2004] WASCA 304 (64.48 grams with purity unknown ‑ 2 years 8 months, cumulative on other sentences, but concurrent with a parole term); Pepper v Western Australia (2005) 30 WAR 447 (3.5 grams of 56 ‑ 62 per cent purity ‑ 2 years, cumulatively with other sentences); and Samuels v The State of Western Australia (No 2) [2006] WASCA 222 (23.5 grams of 34 per cent purity ‑ 5 years) [41].

5. I should also refer to Dixon v The State of Western Australia [2006] WASCA 255. The offender in Dixon pleaded guilty to one count of possession of methylamphetamine with intent to sell or supply (comprising 56.17 g with a purity ranging between 4% and 6%), one count of possession of ecstasy with intent to sell or supply (being 19.3 g with a purity ranging between 21% and 25%) and one count of possession of LSD (being 0.02 g).  The sentencing judge imposed 3 years 2 months' imprisonment on the methylamphetamine count, 1 year 3 months' imprisonment on the ecstasy count and 3 months' imprisonment on the LSD count.  The sentences were ordered to be served cumulatively, resulting in a total effective sentence of 4 years 8 months.  The offender was made eligible for parole.  This court dismissed the offender's appeal against sentence.

6. In the present case, although the purity of the drug was low (the purity of methylamphetamine for the purposes of street dealing ordinarily being about 8% ‑ 10%), the quantity was about 50 times in excess of the quantity triggering the presumption of an intention to sell or supply (s 11 of the Misuse of Drugs Act) and more than three times the quantity required for the making of a drug trafficker declaration.  No doubt, the pseudoephedrine was intended by the manufacturer or processor of the substance to increase its impact on the user. 

7. It is apparent from the quantity of the substance in the respondent's possession (100.6 g), and his possession of a known cutting agent, that the respondent was involved in the distribution of methylamphetamine into the community as a street level dealer.

8. The respondent was born on 14 July 1958.  He was aged 50 years at the time of offending and 51 years when he was sentenced.  He has a reasonably extensive prior record of offending.  Although most of the prior offending was for motor vehicle traffic offences, he did have some recent prior convictions for possession of prohibited drugs, namely, heroin, amphetamine and cannabis.  Accordingly, he did not have the benefit of youth or the absence of a prior criminal record as mitigating circumstances.  It is true that the respondent pleaded guilty to the offences in question, but the plea was not at the earliest opportunity.

9. It is well‑established that the major sentencing considerations for offences of dealing in methylamphetamine are general and personal deterrence.  The weight of the drug is not, generally, the chief factor to be taken into account in fixing sentence, but it is of importance.  Other matters of relevance include the nature and level of the offender's participation in drug dealing, and whether the offending was committed solely for commercial gain.  The degree of purity is often regarded as significant because it is indicative of the offender's place in the drug dealing hierarchy.  Matters personal to the offender will almost always be a very limited consideration, but they are not completely irrelevant.

10. I am satisfied that, notwithstanding the low level of purity in the present case, the sentence of 2 years' imprisonment imposed by the sentencing judge was not merely lenient, but manifestly inadequate.  In particular, error should be inferred as a result of the length of the sentence (2 years' imprisonment) being significantly and unjustifiably less than the length of sentences customarily imposed for comparable offending (that is, possession, with intent to sell or supply, of a comparable quantity of methylamphetamine with a comparable level of purity) and on offenders whose personal antecedents were similar to or better than the respondent's.

11. Ground 2 has been made out.

Ground 3 of the appeal

1. A complaint that a sentencing judge has infringed the totality principle involves an allegation of inferred error.

2. The totality principle applies where an offender is to be sentenced for multiple offences or where he or she is serving a term of imprisonment, at the time of sentencing, for another offence.  Also, the totality principle may have application, in some limited circumstances, by way of analogy, where an offender has already served a term of imprisonment imposed for a prior offence.

3. In the present case, the State relies on that aspect of the totality principle which requires the total effective sentence to bear a proper relationship to the overall criminality involved in all the relevant offences, viewed in their entirety, and after having regard to the circumstances of the case, including those referable to the offender personally.

4. As I have mentioned, in the present case the sentencing judge imposed a sentence of 12 months' immediate imprisonment for the offence of assaulting a public officer who was then performing a function of his office or employment (being count 2).

5. At the material time, the maximum penalty for contravening s 318(1) of the Criminal Code was 10 years' imprisonment.

6. In Quinn v The State of Western Australia [2006] WASCA 99, McLure JA reviewed the sentences which have been imposed under s 318(1). Her Honour noted (Roberts-Smith JA & Buss JJA agreeing) that the authorities endorsed the principle that the safety of police officers lawfully carrying out their duties is a matter of prime importance and that the courts regard attacks on police as a serious breach of the law [19].

7. In the present case, the State does not complain about the individual sentence imposed for count 2.  Its assertion is that the sentencing judge infringed the totality principle by failing to make the sentence for count 2 cumulative on the sentence for count 1.

8. Although, in the present case, the offence of possessing methylamphetamine with intent to sell or supply (count 1) and the offence of assaulting a public officer (count 2) had a temporal connection, they were separate and distinct offences.  Each offence involved serious criminal behaviour.  In my opinion, the sentencing judge's decision to make the sentence for assaulting a public officer wholly concurrent with the sentence for possessing methylamphetamine with intent to sell or supply was plainly unreasonable, and failed adequately to reflect the respondent's overall criminality.  The seriousness of the offending against the public officer was not appropriately marked as a result of the sentences being made wholly concurrent.  I emphasise that, in forming this view, I have taken into account the fact that when the respondent was sentenced at first instance he was serving an existing sentence of 14 months' immediate imprisonment, with parole eligibility, that the existing sentence commenced on 23 December 2008, and that he had not been released on parole.

9. Ground 3 has been made out.

Ground 1 of the appeal

1. It is unnecessary, in the circumstances, to deal with ground 1.

The result of the appeal and the re‑sentencing of the respondent

1. Leave to appeal should be granted on ground 2, but refused on ground 1.  The appeal should be allowed and the sentencing decision of the sentencing judge should be set aside.  This court has the materials necessary to re‑sentence the respondent.  The seriousness of the offending requires the imposition of terms of immediate imprisonment.  No other sentencing option is open.

1. For the offence of possession of methylamphetamine with intent to sell or supply (count 1), I would impose a sentence of 3 years' immediate imprisonment.

2. The overall criminality of the respondent's offending would be properly reflected by a total effective sentence of 3 years 6 months' immediate imprisonment.  Solely for the purposes of achieving a just outcome on totality (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26]), the sentence of 12 months' imprisonment for the offence of assaulting a public officer (count 2) should be reduced to 6 months' immediate imprisonment.

3. The sentence for count 2 should be cumulative upon the sentence for count 1. The sentence for count 1 should be taken to have commenced on 15 September 2009.  The total effective sentence is therefore 3 years 6 months' immediate imprisonment.

4. The respondent should remain eligible for release on parole.  He will be eligible for release upon having served 21 months calculated from 15 September 2009.

5. MAZZA J:  I agree with Buss JA.