The State of Western Australia v Malone
[2015] WASCA 188
•16 SEPTEMBER 2015
THE STATE OF WESTERN AUSTRALIA -v- MALONE [2015] WASCA 188
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 188 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:185/2014 | 5 AUGUST 2015 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 16/09/15 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Total effective sentence imposed by the sentencing judge set aside Respondent resentenced | ||
| D | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA DANIEL MARTIN MALONE |
Catchwords: | Criminal law State appeal against sentence Respondent convicted on 15 counts of possession of cannabis with intent to sell or supply and one count of attempting to possess cannabis with intent to sell or supply Total estimated weight of the cannabis involved in the offending about 330 kg Total estimated street value of the cannabis about $2.9 million Total effective sentence of 4 years 3 months' immediate imprisonment Totality principle |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(4) Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(1), s 34(1)(a), s 34(2)(a) |
Case References: | Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186 Bowman v The Queen (1993) 69 A Crim R 530 Brown v The State of Western Australia [2008] WASCA 48 CMB v Attorney General (NSW) [2015] HCA 9; (2015) 89 ALJR 407 Day v The Queen [2001] WASCA 284; (2001) 127 A Crim R 403 Eacott v The State of Western Australia [2009] WASCA 112 Fazari v The Queen (Unreported, WASCA, Library No 960651, 14 November 1996) Giglia v The State of Western Australia [2010] WASCA 9 Kennedy v The Queen (Unreported, WASCA, Library No 980145, 3 April 1998) Lester v The State of Western Australia [2011] WASCA 128 Marshall v The State of Western Australia [2015] WASCA 156 Nguyen v The State of Western Australia [2009] WASCA 8 Noble v The Queen [2003] WASCA 83 Poole v The Queen [1999] WASCA 46; (1999) 106 A Crim R 459 R v Lyon [2001] WASCA 120; (2001) 121 A Crim R 440 Rodi v The State of Western Australia [No 2] [2014] WASCA 233 Smith v The State of Western Australia [2010] WASCA 176 The State of Western Australia v Khasay [2014] WASCA 58 The State of Western Australia v Thompson [2014] WASCA 108 Trajkoski v The State of Western Australia [2008] WASCA 130 Wheeler v The Queen [No 2] [2010] WASCA 105 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- MALONE [2015] WASCA 188 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
DANIEL MARTIN MALONE
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MARTINO CJDC
File No : IND 464 of 2013
Catchwords:
Criminal law - State appeal against sentence - Respondent convicted on 15 counts of possession of cannabis with intent to sell or supply and one count of attempting to possess cannabis with intent to sell or supply - Total estimated weight of the cannabis involved in the offending about 330 kg - Total estimated street value of the cannabis about $2.9 million - Total effective sentence of 4 years 3 months' immediate imprisonment - Totality principle
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(1), s 34(1)(a), s 34(2)(a)
Result:
Appeal allowed
Total effective sentence imposed by the sentencing judge set aside
Respondent resentenced
Category: D
Representation:
Counsel:
Appellant : Mr J McGrath SC
Respondent : Ms V Amidzic
Solicitors:
Appellant : Director of Public Prosecutions (WA)
Respondent : Amidzic Legal
Case(s) referred to in judgment(s):
Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186
Bowman v The Queen (1993) 69 A Crim R 530
Brown v The State of Western Australia [2008] WASCA 48
CMB v Attorney General (NSW) [2015] HCA 9; (2015) 89 ALJR 407
Day v The Queen [2001] WASCA 284; (2001) 127 A Crim R 403
Eacott v The State of Western Australia [2009] WASCA 112
Fazari v The Queen (Unreported, WASCA, Library No 960651, 14 November 1996)
Giglia v The State of Western Australia [2010] WASCA 9
Kennedy v The Queen (Unreported, WASCA, Library No 980145, 3 April 1998)
Lester v The State of Western Australia [2011] WASCA 128
Marshall v The State of Western Australia [2015] WASCA 156
Nguyen v The State of Western Australia [2009] WASCA 8
Noble v The Queen [2003] WASCA 83
Poole v The Queen [1999] WASCA 46; (1999) 106 A Crim R 459
R v Lyon [2001] WASCA 120; (2001) 121 A Crim R 440
Rodi v The State of Western Australia [No 2] [2014] WASCA 233
Smith v The State of Western Australia [2010] WASCA 176
The State of Western Australia v Khasay [2014] WASCA 58
The State of Western Australia v Thompson [2014] WASCA 108
Trajkoski v The State of Western Australia [2008] WASCA 130
Wheeler v The Queen [No 2] [2010] WASCA 105
1 McLURE P: I agree with Buss JA.
2 BUSS JA: This is a State appeal against sentence.
3 The respondent was charged on indictment with numerous drug offences.
4 Counts 1 to 15 inclusive alleged that on various dates between 18 October 2012 and 23 January 2013, at Wembley, the respondent had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act).
5 Count 16 alleged that between 1 January 2013 and 2 February 2013, at Perth, the respondent attempted to possess a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the Act.
6 The maximum penalty for each of counts 1 to 15 inclusive is 10 years' imprisonment or a fine of $20,000 or both. See s 34(2)(a) read with s 34(1)(a) of the Act. The maximum penalty for count 16 is also 10 years' imprisonment or a fine of $20,000 or both. See s 33(1) and s 34(2)(a) read with s 34(1)(a) of the Act.
7 The respondent was convicted, as charged, upon his pleas of guilty.
8 On 7 October 2014, the sentencing judge, Martino CJDC, sentenced the respondent to 4 years 3 months' immediate imprisonment on each count. All of the individual sentences were ordered to be served concurrently. The total effective sentence was therefore 4 years 3 months' immediate imprisonment. His Honour backdated the sentence to 6 October 2014. A parole eligibility order was made.
The ground of appeal
9 The sole ground of appeal alleges that the total effective sentence infringed the first limb of the totality principle.
10 The State does not allege that the sentencing judge made any express errors.
11 On 23 December 2014, Mazza JA granted leave to appeal.
The facts and circumstances of the offending
12 The facts and circumstances of the offending were, in summary, as follows.
13 In 2012 the Western Australian police commenced an investigation into an interstate cannabis trafficking syndicate which was carrying on business from South Australia. The syndicate supplied large quantities of cannabis to people in Western Australia and Queensland. The syndicate operated solely through the respondent in connection with the supply of cannabis in Western Australia. The respondent ordered significant quantities of cannabis from the syndicate on an almost weekly basis. The cannabis, which was grown hydroponically, was sent by courier to the respondent.
14 Counts 1 to 15 inclusive (being the counts alleging possession of cannabis with intent to sell or supply it to another) concerned 15 separate and distinct offences committed between 18 October 2012 and 23 January 2013. On each occasion the respondent received a significant quantity of cannabis from the syndicate.
15 Count 16 (being the count alleging an attempt to possess cannabis with intent to sell or supply it to another) concerned an offence committed between 1 January 2013 and 2 February 2013. On this occasion the respondent did not receive the cannabis because he had been arrested and the police intercepted the box containing the drug.
16 The quantity of cannabis received by the respondent on each occasion varied. In some cases, it was about 10 kg and, on others, about 40 kg. The respondent then on-sold the cannabis through his associates. One associate was Daniel Said, who acted as an intermediary in certain transactions for various Western Australian customers. Mr Said's partner, Nichola Cooper, assisted him occasionally by collecting boxes containing cannabis.
17 The total estimated weight of the cannabis involved in counts 1 to 16 inclusive was about 330 kg. It had an estimated street value of about $2.9 million. These estimates appear to have been conservative.
18 The respondent paid for the cannabis by sending large amounts of cash to the syndicate through the Australia Post system. The police identified 14 occasions on which the respondent sent money to the syndicate. On eight of these occasions the amounts were able to be established and they ranged between $90,050 and $199,230. Overall, the respondent sent well in excess of $800,000 to the syndicate in payment for the cannabis he had received.
19 The respondent made limited admissions when he was questioned by police.
The expert reports before the sentencing judge
20 The information before the sentencing judge included a report dated 26 September 2014 from Naomi Oliver, a clinical and forensic psychologist, a report dated 3 October 2014 from Tanya Chiplin, a counselling psychologist, and a pre-sentence report dated 30 September 2014.
21 Ms Oliver made the following comments:
(a) The respondent described his childhood as 'horrendous'. He was bullied at school and had a 'punishing mother'.
(b) The respondent was raised in a dysfunctional family environment. He lived in a caravan in mining towns while he was at primary school.
(c) As a result of 'living poorly' and being bullied as a child, the respondent appears to have been motivated in his current offending 'to provide a better life for his children'.
(d) The respondent has 'limited remorse and insight' and is unable to perceive the impact that his offending would have had on others.
(e) The respondent told Ms Oliver that 'alcohol is his biggest problem as there are always negative consequences such as anger, and aggressive and violent behaviour'. He used cannabis for a six-month period when he was 18. He also experimented with other illicit drugs but they did not appeal to him. The respondent had not used cannabis for about seven or eight years.
(f) The respondent's problems with anger management may be 'a potential treatment complication'. His interest in and motivation to engage in treatment was 'somewhat below average'. He told Ms Oliver that he was 'satisfied with himself the way he is and that there is little need for changes in his behaviour'. The respondent may be 'somewhat defensive and reluctant to discuss [personal] problems' and he may have 'initial difficulty in placing trust in a treating professional'. As a result, 'the treatment process would … be fairly challenging'.
(g) The respondent gave Ms Oliver the following explanation for his offending:
According to [the respondent], his involvement with selling cannabis began before 2009 when somebody asked him to do a favour and to seek cannabis for him. He advised that at that time he also had difficulties in the paying [of] the rent and his bills, and that the profit made from selling cannabis to that person allowed him to achieve this and more. [The respondent] stated that from that time on he began to become more involved and ran it like a business. He also advised that he began to have a sense of power, as money brought with it power and conveyed that in the year prior to being caught he made a profit of $30,000 to $60,000 a week.
(h) The respondent minimised his offending behaviour. He said:
It is only weed (cannabis). I don't see it as a bad thing. I wouldn't do harder stuff and I don't see it as like the other stuff. I don't feel guilty or bad.
(i) The respondent told Ms Oliver that, since being arrested for the offences, he had been in stable employment since December 2013 and had been earning 'approximately $9,000 gross a week for 34 weeks'.
(j) Testing revealed that the respondent has 'global intellectual functioning … in the Low Average range and … verbal comprehension … in the Borderline range' (original emphasis). However, the respondent's 'perceptual reasoning abilities' were 'in the Average range' (original emphasis).
(k) In summary, the test results reflected that the respondent has 'an impaired capacity to communicate ideas and [understand] problems, although [he] has average abilities in assessing problems, organising his thoughts, and developing and testing solutions'.
(l) The test results had to be viewed with caution because of the 'limited resources' available to Ms Oliver and the risk that the results could have been influenced by factors such as anxiety. Also, the 'validity indexes' of the tests administered by Ms Oliver indicated that the respondent 'may not have answered in a completely forthright manner as his responses indicated defensiveness about particular shortcomings as well as an exaggeration of certain problems'.
22 Ms Chiplin said in her report:
(a) The respondent commenced therapy with Ms Chiplin, on his own initiative, on 20 September 2013. He commenced therapy after he was charged with the offences in question.
(b) The respondent has three young children from a previous relationship. He has a 'close and supportive relationship' with his former partner, and they enjoy co-parenting their children.
(c) The respondent has three health problems. First, he has hemochromatosis. This is a chronic disorder that requires regular monitoring by blood tests to maintain his health. Secondly, he has ankylosing spondylitis, which is a form of inflammatory arthritis that attacks the joints of the spine. He requires various therapies to manage this condition including acupuncture, physiotherapy, deep tissue massage and an invasive dry needling technique. Thirdly, he has a heart condition that results in him experiencing atrial fibrillation. This is a chronic condition which requires ongoing medical treatment.
(d) The offending behaviour appears to have arisen from the respondent's drive to maintain confidence and a sense of personal power through the accumulation of money. Further, the respondent stated that he had a strong desire to support his former partner and young children financially.
(e) The respondent has a tendency to 'binge drink', but has begun to make efforts to limit his alcohol consumption. He also has 'issues' with steroid use.
(f) The respondent has a prior criminal record including eight counts for possession of steroids. The steroid offences are linked directly to the respondent's compulsion to maintain his physical appearance.
(g) The respondent has worked consistently in the community since he left school. He has been employed in the construction and mining industries and, while being treated by Ms Chiplin, was working for a deep hydro blasting company.
(h) During his therapeutic sessions with Ms Chiplin, the respondent 'reflected upon a sense of remorse and shame particularly due to the impact his actions will have upon his children'.
(i) After a dysfunctional upbringing, the respondent developed 'seemingly positive adaptive strategies including physical fitness and entrepreneurial skills that seemed to improve his self-esteem and life'. However, the underlying drive for the strategies was based on 'insecurity and fear' and this drive appears to have become a compulsion 'resulting in him taking risks that have resulted in him now facing criminal charges'.
23 The author of the pre-sentence report said the respondent admitted that he had earned up to $10,000 a week from the sale of cannabis. The author then noted that this admission contradicted the respondent's earlier statement to Ms Oliver that he had made a profit of $30,000 to $60,000 a week.
The sentencing judge's sentencing remarks
24 The sentencing judge recounted the facts and circumstances of the offending and said each count was a manifestation of the respondent's ongoing criminal behaviour.
25 His Honour accepted that the respondent was dealing with one person in South Australia and that he did not realise the person was part of a syndicate.
26 The respondent supplied the cannabis he acquired to Mr Said, who in turn distributed the drug in Western Australia.
27 The respondent was dealing with 'very, very significant amounts of money' and 'very valuable cannabis' (ts 48).
28 The respondent's pleas of guilty were entered after he was committed to the District Court for trial, but at an early stage in the District Court proceedings. His Honour allowed a discount of 15%, pursuant to s 9AA of the Sentencing Act 1995 (WA), on the head sentence he would otherwise have imposed for each offence.
29 The sentencing judge said that the respondent's culpability and responsibility for the distribution of the cannabis in Western Australia was greater than that of Mr Said. The respondent had access to the source of the drug in South Australia and he was at a higher level in the drug distribution network than Mr Said.
30 The respondent was born on 21 October 1980. He was aged 31 or 32 at the time of the offending and was 33 when sentenced.
31 His Honour noted the respondent's prior criminal record. His previous offences had been punished by the imposition of fines. They did not involve serious criminality.
32 The sentencing judge referred to the respondent's dysfunctional upbringing and Ms Oliver's report. His Honour said he 'accept[ed] Ms Oliver's conclusions' (ts 50). He elaborated:
(a) the results of the tests administered by Ms Oliver had to be 'expressed and viewed with caution' for the reasons articulated by Ms Oliver in her report (ts 50 - 51);
(b) the respondent's 'intellectual ability in certain significant areas is significantly less than many people in the population' (ts 51);
(c) attempting to reduce the respondent's 'risk factors [in relation to reoffending] may be difficult to achieve, although appropriate intervention may mitigate this risk' (ts 51);
(d) the organisation of the respondent's offending 'involved significant skills' but, nevertheless, the respondent has an 'intellectual disability' which has 'an impact on [his] ability to understand the seriousness of [his] offending behaviour' (ts 51);
(e) that intellectual disability was 'a relevant factor in the sentencing exercise' in that it reduced the respondent's moral culpability, but it was also a factor 'relevant to personal deterrence, because attempting to reduce [the respondent's] risks [of reoffending] may be difficult to achieve' (ts 51);
(f) his Honour accepted, on the basis of Ms Chiplin's report, that the respondent had been 'engaged actively in the [therapeutic] process' since September 2013, and his Honour also accepted that the respondent was 'motivated never to engage in [similar] offending behaviour due to the impact of [his] actions on [his] family particularly [his] children' (ts 52); and
(g) his Honour took into account the respondent's 'intellectual functioning' in deciding on the sentencing outcome, but 'notwithstanding that factor' his Honour remained of the view that general deterrence was a relevant sentencing factor although the respondent's 'intellectual functioning' mitigated 'the need for general deterrence' (ts 53).
33 As I have mentioned, the State does not allege that the sentencing judge made any express errors. In particular, the State does not challenge any of his Honour's findings of fact.
The sentencing of the related offenders
34 It is necessary to set out details of the sentencing of the related offenders because, if the State's appeal is allowed, it will be necessary to have regard to the parity principle or the principle of equal justice in resentencing the respondent.
35 Two related offenders, Wess McRobb and Keaton McRobb, are brothers. They were charged on indictment with three counts in the case of Mr Wess McRobb, and two counts in the case of Mr Keaton McRobb. Both of them were convicted, as charged, after a trial in the District Court before Keen DCJ and a jury.
36 Count 1 alleged that between 2 January 2013 and 31 January 2013, at South Lake, Mr Wess McRobb had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act.
37 Count 2 alleged that between 16 January 2013 and 31 January 2013, at South Lake, Mr Wess McRobb and Mr Keaton McRobb had in their possession a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act.
38 Count 3 alleged that between 1 January 2013 and 31 January 2013, at Perth, Mr Wess McRobb and Mr Keaton McRobb conspired together to sell or supply a prohibited drug, namely cannabis, to another or others, contrary to s 6(1)(c) read with s 33(2) of the Act.
39 The maximum penalty for count 3 is 20 years' imprisonment or a fine of $75,000 or both. See s 34(1)(b) read with s 33(2) of the Act.
40 On 23 March 2015, Keen DCJ imposed individual sentences on Mr Wess McRobb as follows. As to count 1, 2 years' immediate imprisonment; as to count 2, 4 years' immediate imprisonment; and as to count 3, 4 years' immediate imprisonment. His Honour reduced the sentence he would otherwise have imposed on count 1 from 4 years' immediate imprisonment to 2 years' immediate imprisonment in the application of the totality principle (ts 964 - 965). His Honour ordered that the sentences for counts 1 and 2 be served cumulatively and that the sentence for count 3 be served concurrently. The total effective sentence was therefore 6 years' imprisonment. A parole eligibility order was made.
41 On 23 March 2015, Keen DCJ sentenced Mr Keaton McRobb to 3 years 6 months' immediate imprisonment on count 2 and 4 years' immediate imprisonment on count 3. The sentences were ordered to be served concurrently. The total effective sentence was therefore 4 years' immediate imprisonment. A parole eligibility order was made.
42 The facts and circumstances of the offending, as found by Keen DCJ, were, in summary, as follows.
43 During 2012 and 2013 cannabis was being imported into Western Australia from South Australia. The importation was achieved by packaging the drugs into cardboard boxes, which were then sent by courier from South Australia to Western Australia. Upon arrival in Perth, the boxes were delivered to premises in Wembley.
44 The present respondent, Daniel Malone, was the 'primary importer' into Western Australia.
45 The boxes contained cannabis which had been cryo-packed in one pound lots. Each box held about 10 kg of the drug.
46 As to count 1, on 3 January 2013 the present respondent collected two boxes from the Wembley premises. He then delivered one of the boxes to Mr Wess McRobb's home in South Lake. Keen DCJ was satisfied that the box would have contained about 10 kg of cannabis.
47 As to count 3, on 6 January 2013 Mr Wess McRobb left Western Australia to travel for an extended holiday of about six weeks in South America. Before he travelled to South America, Mr Wess McRobb made an agreement with Mr Keaton McRobb that Keaton would, in Mr Wess McRobb's absence, look after and run Mr Wess McRobb's business of selling cannabis.
48 Keen DCJ was satisfied that, before his departure, Mr Wess McRobb prepared and gave Mr Keaton McRobb a document that was headed 'Routine' on one side and 'Money' on the other. The document contained instructions from Mr Wess McRobb to Mr Keaton McRobb as to how to run the drug business. The document listed nine customers. The document also referred to the distribution of cannabis in various quantities, namely pound lots, at different prices depending upon the particular customer. The price was described within a range between $4,400 and $4,800 per pound. The document also stated, '[n]eed to keep turnover at min 40 wk try for 44'. The document stated under the heading 'Money':
You Can Pull out $3K/wk + Stash.
Put the rest back into the system.
Always check where the money in the system is up to. Just Base the return on $300.
I expect it should be near 100 000 by the time I get back.
49 Keen DCJ said it was 'by no means clear' from this document 'how much profit [Mr Wess McRobb was] making' and his Honour 'would not be prepared to speculate on this' (ts 959).
50 As to count 2, during the subsistence of the conspiracy alleged in count 3, and while Mr Wess McRobb was overseas, Ms Cooper (to whom I have referred at [16] above), met the present respondent at the Wembley premises at the request of Mr Said (to whom I have referred at [16] above). On 17 January 2013, Ms Cooper collected two boxes (each box containing about 10 kg of cannabis) from the present respondent. She delivered them to Mr Wess McRobb's home in South Lake. Mr Wess McRobb had procured Mr Keaton McRobb to possess the cannabis in the boxes with a common intent to sell or supply it to another or others while Mr Wess McRobb was overseas.
51 Mr Wess McRobb knew Mr Said. They worked together from time to time and socialised from time to time. Mr Said and Ms Cooper knew the present respondent and his partner and they socialised from time to time.
52 Mr Wess McRobb was a dealer in cannabis who had a number of customers. He took possession of cannabis in one pound packages and sold them to his customers at prices between $4,400 and $4,800 per pound. Mr Wess McRobb carried on his drug dealing business purely for commercial purposes. The business involved 'not insignificant amounts of money' (ts 956).
53 Keen DCJ was satisfied that Mr Wess McRobb's level in the drug distribution hierarchy was below that of the present respondent, but was 'still substantial'. Mr Wess McRobb was 'clearly more than just a street dealer in cannabis' (ts 956).
54 Keen DCJ found that Mr Wess McRobb was 'not far removed from the source of [the] drugs in South Australia'. The extent of his drug dealing business was demonstrated by the fact that, when Mr Keaton McRobb was arrested, he was in possession of about $70,000 cash. His Honour was satisfied that the money came from Mr Wess McRobb's drug dealing business and that Mr Keaton McRobb was collecting money on Mr Wess McRobb's behalf during his absence overseas. His Honour was unable to determine how much of the cash of about $70,000 was profit and how much was ultimately to be returned to the syndicate in South Australia. However, his Honour said it was 'clear' from the document which Mr Wess McRobb had prepared and given to Mr Keaton McRobb that Mr Wess McRobb was 'dealing in fairly large quantities of cannabis' (ts 958 - 959).
55 Keen DCJ commented that the document had 'all the language and all the hallmarks of an established drug distribution business rather than one that merely arose from the delivery on 3 January [2013]', the subject of count 1 (ts 963). However, he could 'put it no higher than it creates a suspicion' (ts 963).
56 Mr Wess McRobb was aged 27 at the time of the offending and was 29 when sentenced. He was a carpenter and joiner and had run his own construction business for seven years. He did not take any prohibited drugs and he did not have any prior convictions.
57 Mr Keaton McRobb was aged 25 at the time of the offending and was 27 when sentenced. At the time of the offending he was working as a draftsman for a design company. He had been in that employment for about four years. He had a record of prior convictions for minor offences, mainly traffic matters.
58 Neither Mr Wess McRobb nor Mr Keaton McRobb showed any remorse. They continued to deny their guilt.
59 The related offenders, Mr Said and Ms Cooper, were each convicted, on his or her plea of guilty in the District Court before Bowden DCJ, on one count of possession of a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act.
60 The facts and circumstances of the offending, as found by Bowden DCJ, were, in summary, as follows.
61 The offence committed by Mr Said occurred between 10 October 2012 and 31 January 2013. During that time, Mr Said obtained orders for cannabis from Mr Wess McRobb and Mr Keaton McRobb. Mr Said then requested boxes of cannabis from the present respondent, who in turn liaised with the syndicate in South Australia. During the period in question, Mr Said was involved in passing on between six and 10 boxes of cannabis, weighing, in total, about 60 kg to 100 kg.
62 The offence committed by Ms Cooper took place on 17 January 2013. She met with the present respondent who gave her two boxes of cannabis weighing, in total, about 20 kg. She took the boxes to Mr Wess McRobb's home in South Lake. She placed them at the side of the house for Mr Keaton McRobb to collect and on-sell the cannabis.
63 Both Mr Said and Ms Cooper collected money from Mr Wess McRobb and Mr Keaton McRobb. They gave the money to the present respondent. Mr Said would be paid $200 per pound, or $4,400 per box, of cannabis.
64 Mr Said was aged 29 and Ms Cooper was 34 at the time of sentencing. Each of them had a good work record in the community.
65 Bowden DCJ accepted that Ms Cooper's offence was committed on instructions from Mr Said and that she was significantly less culpable than him. She pleaded guilty at the first opportunity, had no criminal history and was unlikely to reoffend. She received no payment for her role, but knew that her partner, Mr Said, was receiving money. On 16 August 2013, his Honour sentenced Ms Cooper to 18 months' immediate imprisonment.
66 Mr Said became involved in cannabis dealing as a result of a gambling addiction. He applied the money he received from drug dealing in or towards repayment of his gambling debts. Mr Said had a number of prior convictions, mainly for traffic offences. All of the prior convictions had been dealt with by the Magistrates Court and were minor in nature. Upon his arrest, he cooperated with police and admitted his offending conduct. Mr Said pleaded guilty at the first opportunity. On 16 August 2013, Bowden DCJ sentenced him to 3 years 9 months' immediate imprisonment.
The merits of the ground of appeal
67 The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear 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 a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
68 The severity or leniency of individual sentences is relevant in evaluating whether a total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA, McLure P & Pullin JA agreeing).
69 In Lester v The State of Western Australia [2011] WASCA 128, McLure P (Newnes JA & Hall J agreeing) reviewed a number of cases in which this court or the Court of Criminal Appeal considered sentences imposed for offences involving the possession of cannabis with intent to sell or supply or the cultivation of cannabis with intent to sell or supply. The cases reviewed by her Honour included R v Lyon [2001] WASCA 120; (2001) 121 A Crim R 440; Day v The Queen [2001] WASCA 284; (2001) 127 A Crim R 403; Noble v The Queen [2003] WASCA 83; Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186; Brown v The State of Western Australia [2008] WASCA 48; Trajkoski v The State of Western Australia [2008] WASCA 130; Nguyen v The State of Western Australia [2009] WASCA 8; and Eacott v The State of Western Australia [2009] WASCA 112. See also Bowman v The Queen (1993) 69 A Crim R 530; Fazari v The Queen (Unreported, WASCA, Library No 960651, 14 November 1996); Kennedy v The Queen (Unreported, WASCA, Library No 980145, 3 April 1998); Poole v The Queen [1999] WASCA 46; (1999) 106 A Crim R 459; and Rodi v The State of Western Australia [No 2] [2014] WASCA 233.
70 I have read and considered the cases I have mentioned. It is unnecessary to repeat the relevant facts and circumstances or the sentences imposed. It is sufficient to note that none of the cases is comparable to the present case. The overall objective criminality of the respondent in the present case, measured partly by the total weight and total value of the cannabis the subject of his offending; partly by the number of counts and the duration of his offending; partly by the profit he made from the transactions the subject of his offending; and partly by his level in the drug distribution hierarchy, significantly exceeds the overall objective criminality, measured in the same manner, of each of the offenders in the cases I have mentioned.
71 Neither counsel for the State nor counsel for the respondent was able to refer the court to any previous cases which are comparable to the respondent's overall offending. My own research has not revealed any such cases in the reported and unreported decisions of this court and the Court of Criminal Appeal.
72 In Day, decided in 2001, Steytler J (Miller J relevantly agreeing) made the following comments about the range of sentences commonly imposed for offences involving the cultivation of cannabis plants with intent to sell or supply cannabis to another:
This Court has, more recently, taken a more serious view of the threat which the trade in cannabis poses than has previously been the case. (See Kennedy v R unreported; CCA SCt of WA; Library No 980145; 3 April 1998, per Malcolm CJ at 13 and 14). That fact, together with the increasing prevalence of commercial trafficking in cannabis, requires that there be some firming up of the sentences imposed on offenders who fall into the category of drug traffickers. (See R v Lyon [2001] WASCA 120 at [36] per Anderson J, with whom the other members of the Court were in agreement). That being so, it should not be assumed that the existing range of sentences continues to provide a reliable guide [38].
73 Similarly, in Lester, decided in 2011, McLure P said:
The court has since 2001 repeatedly stated that it takes a more serious view of the threat the cannabis trade poses to society and the increased prevalence of it. The risk correlation between the use of cannabis and mental illness and progression to harder drugs is a familiar theme in sentencing materials in more recent times.
Deterrence is the main sentencing consideration for dealing in prohibited drugs, including cannabis, and matters personal to the offender are accorded correspondingly less weight. In the past five years at least there has been a tangible, incremental firming up in the sentences imposed for dealing in other types of prohibited drugs. That is not obviously so in the sentencing of offenders for dealing in cannabis, notwithstanding the identified need [21] - [22].
- I agree with her Honour's observations.
74 The effect of a mental disorder, intellectual disability or psychological difficulties (falling short of insanity and which have not been self-induced) on the moral blameworthiness or culpability of an offender is variable. It depends upon the nature, effect and severity of the condition and its symptoms. An offender who seeks to rely on a mental disorder, intellectual disability or psychological difficulties as a factor which reduces his or her moral blameworthiness or culpability must prove on the balance of probabilities that the condition impaired his or her functioning to such an extent as to reduce the moral blameworthiness or culpability of the offending behaviour. However, although a mental disorder, intellectual disability or psychological difficulties (falling short of insanity and which have not been self-induced) will often tend to diminish moral blameworthiness or culpability and, consequently, tend to diminish the otherwise appropriate sentence, it may in some circumstances have other effects. For example, the existence of a causal connection between the mental disorder, intellectual disability or psychological difficulties, on the one hand, and the offending behaviour, on the other, might reduce the importance of general deterrence but increase the importance of personal deterrence or the need to protect the public. A sentencing factor may be relevant in a number of respects and not affect the sentencing outcome because the factor weighs both positively and negatively in the balance. See, generally, Wheeler v The Queen [No 2] [2010] WASCA 105 [5] - [10] (McLure P, Newnes JA agreeing); The State of Western Australia v Khasay [2014] WASCA 58 [36] - [41] (Buss JA, Pullin & Mazza JJA agreeing); and Marshall v The State of Western Australia [2015] WASCA 156 [90] - [95] (Buss JA).
75 In Smith v The State of Western Australia [2010] WASCA 176, I reviewed various provisions of the Prisons Act 1981 (WA) and the Prisons Regulations 1982 (WA) in relation to the provision of medical treatment for prisoners. I noted (McLure P & Mazza J agreeing):
First, the chief executive officer of the department of the Government principally assisting the Minister in the administration of the Prisons Act (the Department) is under a duty to ensure that medical care and treatment is provided to the appellant in prison. Secondly, a medical officer is bound, on the request of the chief executive officer, to examine and treat the appellant if he requires medical care and treatment. Thirdly, the chief executive officer is empowered to give written permission for the appellant to be absent from prison for a period specified, and for a reason described, in an absence permit. An absence permit may be given by the chief executive officer for the appellant to be admitted to the Frankland Centre at Graylands Hospital or to any other authorised hospital for the purpose of the treatment of his psychiatric illness. Fourthly, if the chief executive officer were to give an absence permit in relation to the appellant, the chief executive officer may give the permit subject to conditions or restrictions for the purpose of protecting the safety and interests of the public [68].
76 In the present case, the respondent's overall offending was, no doubt, very serious. His offending was not fleeting or impulsive. It was premeditated, planned, sustained and repetitive. He established and maintained a major wholesale drug dealing enterprise. It flourished under his stewardship. He played a crucial role in a cross-border operation and his offending only ceased when his activities were thwarted by the police. The quantities of cannabis he acquired and supplied were very substantial and the amount of cash he received and transferred was very large. It was, on his admissions to Ms Oliver and the author of the pre-sentence report, a very lucrative venture. This remains true even if the admission of profitability made to the author of the pre-sentence report is the more accurate version. The respondent committed the offences purely for commercial motives. This was an aggravating factor for sentencing purposes. See The State of Western Australia v Thompson [2014] WASCA 108 [25] (McLure P, Buss & Mazza JJA agreeing).
77 The respondent's reasonably favourable antecedents were not irrelevant, but such matters are accorded less weight in sentencing for offences of this kind.
78 The respondent is, of course, only to be punished for the offences with which he was charged and to which he pleaded guilty. That is, he is not to be punished for other offences he may have committed but with which he was not charged.
79 The sentencing judge appears to have attached significant weight to what his Honour described as the respondent's diminished 'intellectual ability in certain significant areas' compared to 'many people in the population' (ts 51). However, there were a number of important and undisputed countervailing objective facts and observations by Ms Oliver.
80 First, the respondent has worked consistently in the community since leaving school. He has been employed in the construction and mining industries and has worked as a high pressure water blasterer. Indeed, after he was arrested for the current offending he secured stable and remunerative employment. Secondly, the facts and circumstances of the respondent's offending demonstrated that he was capable of carrying on a thriving business for a lengthy period. Thirdly, although the tests administered by Ms Oliver indicate that the respondent has 'an impaired capacity to communicate ideas and [understand] problems', he has 'average abilities in assessing problems, organising his thoughts, and developing and testing solutions'. Plainly, the respondent was able to use these abilities in the successful establishment and maintenance of his drug dealing enterprise. Fourthly, the results of the tests administered by Ms Oliver must be approached with caution for the reasons given by her. In particular, according to the 'validity indexes', the respondent 'may not have answered in a completely forthright manner as his responses indicated defensiveness about particular shortcomings as well as an exaggeration of certain problems'. Fifthly, the respondent did not have a mental disorder or an intellectual disability that could reasonably be characterised as serious or significant. He was able to function reasonably well in regular employment in the community, in interpersonal relations within his family and among his friends and in carrying on his drug dealing business.
81 There was some limited mitigation arising from the sentencing judge's unchallenged finding that the respondent has an 'intellectual disability' which has 'an impact on [his] ability to understand the seriousness of [his] offending behaviour' (ts 51). However, that factor was decisively outweighed by the countervailing matters to which I have referred.
82 The respondent had the mitigation of his pleas of guilty and his prior criminal record was not of any significance for sentencing purposes. The respondent eventually evinced some remorse and shame and, on his own initiative, commenced and persevered with psychotherapy under the care of Ms Chiplin.
83 There is no reason to suppose that the respondent's health problems cannot be satisfactorily dealt with in a custodial setting.
84 In my opinion, the total effective sentence of 4 years 3 months' imprisonment for the charges was not of a severity appropriate in all the circumstances of the offences. The length of the sentence was not commensurate with the seriousness of the overall offending.
85 I am satisfied, after evaluating all relevant facts and circumstances and all relevant sentencing factors (including all matters of mitigation), that the total effective sentence does not bear a proper relationship to the criminality involved in all of the offences, viewed together. This is the only conclusion reasonably open. The proper exercise of the sentencing judge's discretion required some accumulation of the individual sentences in order to mark the very serious nature of the respondent's overall offending and to reflect the important sentencing considerations of personal and general deterrence. Error by his Honour should be implied or inferred, based on the first limb of the totality principle, from the sentencing outcome.
86 The ground of appeal has been made out.
The result of the appeal and the resentencing of the respondent
87 I would allow the appeal.
88 Counsel for the respondent did not submit that the discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) should be exercised. The respondent does not, of course, bear an onus to establish that the residual discretion should be exercised in his favour. Rather, it is incumbent on the State to negate any reason why the residual discretion of this court not to interfere should be exercised. See CMB v Attorney General (NSW) [2015] HCA 9; (2015) 89 ALJR 407 [33] - [34] (French CJ & Gageler J), [66] (Kiefel, Bell & Keane JJ).
89 In my opinion, there is no basis, in the present case, for invoking the discretion. The total effective sentence imposed by the sentencing judge was substantially less than the sentence open on a proper exercise of the sentencing discretion. Appealable error has been very clearly established. This court's intervention is necessary to ensure the preservation of proper sentencing standards for the offences in question.
90 This court has the material necessary to resentence the respondent.
91 The individual sentences imposed by his Honour for counts 1 to 15 inclusive should not be disturbed. I would, however, in the application of the totality principle, reduce the individual sentence for count 16 from 4 years 3 months' immediate imprisonment to 3 years 3 months' immediate imprisonment. His Honour's order for concurrency must be set aside.
92 The respondent's objective criminality and moral culpability were materially greater than the objective criminality and moral culpability of each of the related offenders. The respondent was directly involved in a cross-border operation in which he was the sole Western Australian contact for the South Australian based drug syndicate. He was entrusted with ordering, receiving and distributing vast quantities of cannabis. He was also entrusted with collecting and transferring to the syndicate very large sums of money derived from drug dealing. He was handsomely rewarded for his efforts. The respondent's level in the drug dealing hierarchy was significantly higher than that of each of the related offenders.
93 After taking into account the maximum penalties, the facts and circumstances of the offences and all other relevant sentencing factors (including matters of mitigation and the parity principle or principle of equal justice as between the respondent and the related offenders), I would impose a total effective sentence of 7 years 6 months' imprisonment. The individual sentence for count 1 (4 years 3 months) and the new individual sentence for count 16 (3 years 3 months) should be served cumulatively on each other. The individual sentences for the other counts should be served concurrently with each other and concurrently with the individual sentence for count 1.
94 The new total effective sentence of 7 years 6 months' imprisonment should be taken to have taken effect on 6 October 2014. The respondent remains eligible for parole. He will be eligible to be considered for release on parole when he has served 5 years 6 months calculated from 6 October 2014.
95 MAZZA JA: I agree with Buss JA.
17
19
2