Tirkot v The State of Western Australia - [2018] WASCA 41

No judgment structure available for this case.

[2018] WASCA 41

JURISDICTION

: SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION

CORAM

: TIRKOT -v- THE STATE OF WESTERN

AUSTRALIA [2018] WASCA 41

: BUSS P

BEECH JA
HALL J

HEARD

: 22 FEBRUARY 2018

: 4 APRIL 2018

DELIVERED

FILE NO/S

BETWEEN

: CACR 150 of 2017

: CANDICE DIANNE TIRKOT

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction

Coram

: DISTRICT COURT OF WESTERN AUSTRALIA

: PARRY DCJ

File Number

: IND 751 of 2016

Catchwords:

Criminal law and sentencing - Appellant pleaded guilty to 23 drug offences most

of which were offering to sell a prohibited drug - Offence of offering to sell

Page 1

[2018] WASCA 41

2,000 MDMA tablets - Whether sentence of 3 years 10 months' imprisonment

manifestly excessive - Whether total effective sentence of 4 years 10 months'

imprisonment infringed first limb of the totality principle

Legislation:

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

Result:

Application for extension of time to appeal refused

Leave to appeal on grounds 1 - 4 refused

Appeal dismissed

Category: D

Representation:

Counsel:

Appellant

: Mr K Robson

Respondent : Mr L M Fox

Solicitors:

Appellant

: Evangel Legal

Respondent : Director of Public Prosecutions (WA)

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

Bahn v The State of Western Australia [2008] WASCA 40

Birch v The State of Western Australia [2011] WASCA 101

Chikonga v The State of Western Australia [2017] WASCA 34

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

Hobby v The State of Western Australia [2009] WASCA 108

Kaokula v The State of Western Australia [2016] WASCA 198

Kershaw v The State of Western Australia [2014] WASCA 111; (2014) 66

MVR 551

Labrook v The State of Western Australia [2016] WASCA 127

Le v The Queen [2004] WASCA 214; (2004) 147 A Crim R 269

Lesay v The State of Western Australia [2011] WASCA 154

Page 2

[2018] WASCA 41

R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554

Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR

508

Russell v The State of Western Australia [No 2] [2010] WASCA 159

Ruvinovski v The State of Western Australia [2013] WASCA 204

Salkilld v The State of Western Australia [2017] WASCA 168

The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A

Crim R 198

The State of Western Australia v Doyle [2017] WASCA 207

The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A

Crim R 302

The State of Western Australia v Johnson [2010] WASCA 187

Tirkot v Director of Public Prosecutions [2018] WASCA 42

TXT v The State of Western Australia [2012] WASCA 28; (2012) 220 A Crim

R 266

Veen v The Queen (No 2) (1988) 164 CLR 465

Vu v The Queen [2006] NSWCCA 188

Wong v The Queen (2001) 207 CLR 584

Zohdy v The State of Western Australia [2014] WASCA 141

Page 3

[2018] WASCA 41

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT:

Introduction

1

The appellant was convicted of 23 drug offences: 13 counts of offering

to sell or supply MDMA; eight counts of offering to sell or supply

methylamphetamine; one count of possession of MDMA with intent to

sell or supply; and one count of attempting to possess MDMA with

intent to sell or supply. She was sentenced to a total effective sentence

of 4 years 10 months' immediate imprisonment.

2

She appeals against her sentence on five grounds. In our opinion, none

of the grounds of appeal have merit, and the appeal must be dismissed.

The offences and the sentences imposed

3

The offences with which the appellant was charged and the sentence

imposed in relation to each offence are summarised in the table below.

Count

1

Date

Offence

Sentence

17 March 2015

Offer to sell or supply a

prohibited drug to another

2 months

(concurrent)

(unknown quantity of MDMA

pills)

2

3

4

5

28 March 2015

14 April 2015

Offer to sell or supply a

prohibited drug to another

12 months

(cumulative)

(1.75g of methylamphetamine)

Offer to sell or supply a

prohibited drug to another

6 months

(concurrent)

(between 50 - 100 MDMA pills)

Offer to sell or supply a prohibited 6 months

drug to another

(concurrent)

(between 50 - 100 MDMA pills)

Offer to sell or supply a prohibited 2 months

drug to another

(concurrent)

(unknown quantity of MDMA

pills)

Page 4

[2018] WASCA 41

JUDGMENT OF THE COURT

6

7

Between

14 - 17 April 2015 drug to another

Offer to sell or supply a prohibited 46 months

(head

sentence)

(2,000 MDMA pills)

17 April 2015

24 April 2015

25 April 2015

8 May 2015

Offer to sell or supply a prohibited 2 months

drug to another

(concurrent)

(2 MDMA pills)

8

Offer to sell or supply a prohibited 4 months

drug to another

(concurrent)

(0.5g of methylamphetamine)

9

Offer to sell or supply a prohibited 9 months

drug to another

(concurrent)

(200 MDMA pills)

10

11

12

13

14

15

Offer to sell or supply a prohibited 4 months

drug to another

(concurrent)

(50 MDMA pills)

15 May 2015

16 May 2015

19 May 2015

20 May 2015

Offer to sell or supply a prohibited 2 months

drug to another

(concurrent)

(4 MDMA pills)

Offer to sell or supply a

prohibited drug to another

12 months

(concurrent)

(1.75g of methylamphetamine)

Offer to sell or supply a

prohibited drug to another

9 months

(concurrent)

(200 MDMA pills)

Offer to sell or supply a

prohibited drug to another

12 months

(concurrent)

(1.75g of methylamphetamine)

Offer to sell or supply a

prohibited drug to another

2 months

(concurrent)

(unknown quantity of MDMA

pills)

16

20 May 2015

Offer to sell or supply a

prohibited drug to another

6 months

(concurrent)

(between 50 - 100 MDMA pills)

Page 5

[2018] WASCA 41

JUDGMENT OF THE COURT

17

18

19

20

21

23

24

Between

20 - 23 May 2015

Offer to sell or supply a

prohibited drug to another

12 months

(concurrent)

(1.75g of methylamphetamine)

21 May 2015

22 May 2015

25 May 2015

27 May 2015

Offer to sell or supply a

prohibited drug to another

4 months

(concurrent)

(0.5g of methylamphetamine)

Offer to sell or supply a

prohibited drug to another

12 months

(concurrent)

(1.75g of methylamphetamine)

Offer to sell or supply a

prohibited drug to another

6 months

(concurrent)

(between 50 - 100 MDMA pills)

Offer to sell or supply a

prohibited drug to another

4 months

(concurrent)

(0.5g of methylamphetamine)

Possession of a prohibited drug

with intent to sell or supply

2 months

(concurrent)

(2.11g of MDMA)

Attempted possession of a

5 months

prohibited drug with intent to sell (concurrent)

or supply

(21g of MDMA)

The facts

4

5

The primary facts of the appellant's offending were not in doubt before

the sentencing judge and are not in dispute before this court.

1

On 27 May 2015, the vehicle the appellant was driving was stopped by

police. The appellant was arrested and her mobile telephone seized and

analysed. Analysis of the mobile telephone revealed the offences the

subject of counts 1 to 21.

1

The summary that follows is taken primarily from the judge's outline at ts 48 - 50, white AB 80 - 82.

Page 6

[2018] WASCA 41

JUDGMENT OF THE COURT

6

The appellant offered to sell or supply MDMA on 13 occasions

between 17 March 2015 and 22 May 2015 in various quantities at

various prices. These offers were summarised by the sentencing judge

as follows:

(1)

In three cases, an unspecified number of pills:

(a)

(b)

once at a price of $16 per pill (count 1); and

twice for an unspecified price (counts 5 and 15).

(2)

(3)

(4)

(5)

2 pills at $20 each (count 7).

4 pills at $40 each (count 11).

50 pills at an unspecified price (count 10).

In four cases, selling or supplying between 50 and 100 pills,

namely:

(a)

50 pills at $17 each, 75 pills at $16 each or 100 pills at

$15 each (count 4);

(b)

(c)

(d)

$14 per pill (count 3);

$18 per pill (count 16); and

at an unspecified price (count 20).

(6)

(7)

In two cases, offering to sell or supply 200 pills:

(a)

(b)

at a price of $14 per pill (count 9); and

at $17.50 per pill (count 13).

2,000 pills at $12.50 per pill (count 6).

2

7

The appellant offered to sell methylamphetamine on eight occasions

between 25 March 2015 and 28 May 2015. There were five offers to

3

sell half-balls, that is 1.75 g, at a price ranging from $700 to $900

(counts 2, 12, 14, 17 and 19). There were three offers to sell

half-weights, that is .5 g, at an unspecified price (counts 8, 18 and 21).

2

3

White AB 81.

White AB 80.

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[2018] WASCA 41

JUDGMENT OF THE COURT

8

The text messages containing the offers to sell or supply the

half-weights indicated that the recipient of the offer was an ongoing

client who was buying on credit or was otherwise aware of the price

that would be charged by the appellant.

4

9

During the search of the appellant's vehicle, police found a plastic bag

on the front passenger seat floor. Inside the plastic bag was a white

bottle containing six capsules. The capsules contained MDMA powder

with a total weight of 2.11 g. That was the subject of count 23, the

count of possession of MDMA with intent to sell or supply. When

questioned by police, the appellant said that the capsules belonged to a

friend.

10

11

When police searched the appellant's bedroom they located a clipseal

bag containing 78 off-white round tablets bearing a rabbit logo with a

total weight of 21 g. The tablets contained fluoroamphetamine with a

purity of 27%. That was the subject of count 24, the count of attempt to

possess MDMA with intent to sell or supply.

5

The police also located, in the appellant's suitcase at her home, a set of

digital scales, a box of clipseal bags, a tick list, a clipseal bag with a

broken capsule containing MDMA powder at a weight of .16 g, a bag

containing one MDMA tablet with a weight of .22 g and a clipseal bag

containing .75 g of fluoroamphetamine.

6

The appellant's personal circumstances

12

13

14

In her submissions to this court, the appellant accepted the accuracy

7

and fairness of the judge's outline of her personal circumstances. They

may be summarised as follows.

The appellant was 20 at the time the offences were committed and 22 at

the time of sentencing. She is an intelligent and articulate young

woman who had performed well at school.

The appellant attended private schools, performing well academically

and being well-accepted by her peers and teachers. She completed high

school in 2011.

4

5

6

7

White AB 81.

White AB 81 - 82.

White AB 82.

Appellant's submissions [20].

Page 8

[2018] WASCA 41

JUDGMENT OF THE COURT

15

The appellant comes from, and has, a strong, supportive and loving

family. The sentencing judge referred in some detail to references from

the appellant's mother and sister.

16

The appellant suffered the loss of her father, whom she idolised, to

throat cancer. After a period of remission, he was diagnosed with an

aggressive form of throat cancer in 2014 and passed away in 2016. The

appellant played a significant role in supporting him and her mother.

17

After leaving school, the appellant became caught up with drug users

although she did not become a drug user herself. She became pregnant

to a violent and abusive man who subsequently abandoned her and the

child. The appellant's child, a girl, was born in 2013. She is a loving

mother, although the sentencing judge noted that she committed the

offences during her child's life.

18

19

The appellant completed the first year of an online university course in

law. She subsequently completed a personal trainer certificate and a

beauty therapy certificate.

8

The sentencing judge had regard to the psychological report that was

before him. The appellant was diagnosed with depression in 2012. The

author of the report considers that the appellant experienced a modest

level of depression and a significant level of underlying anxiety. He

also considers that the appellant has the personality characteristic

referred to as perfectionism and some elements of obsessive

compulsive disorder. Further, the appellant has a dependant personality

disorder with a high degree of need for nurturing, acceptance and

approval, making her particularly susceptible to the influence of others.

9

20

21

The appellant was kidnapped and then threatened by people involved in

drug dealing. The judge did not accept the submission of counsel for

the appellant that this was the catalyst for her involvement in the drug

trade. The judge found that the appellant was involved in the drug

trade in a major way well before she was kidnapped and threatened.

10

The judge accepted what had been said in the reports before him that

the appellant has an insight into her offending, has taken responsibility

for her actions and understands the damage caused by her offending.

11

8

9

White AB 84.

White AB 85.

10

White AB 85 - 86, 92.

White AB 86.

11

Page 9

[2018] WASCA 41

JUDGMENT OF THE COURT

The judge also accepted that the appellant is genuinely remorseful and

12

was at a low risk of future offending.

13

The sentencing remarks

22

Given the grounds of appeal, it is necessary to outline only some of

his Honour's careful and comprehensive sentencing remarks.

The commercial nature of the appellant's offending

23

Before the sentencing judge, counsel for the appellant submitted that

she was not engaged in commercial drug dealing. The sentencing judge

rejected that submission. The judge did not accept that the appellant

was dealing in drugs solely or even principally for the benefit of her

drug dealer acquaintances. Rather, the judge found that the appellant

was seeking to make money out of drug dealing. His Honour found

14

that the appellant was a commercial drug dealer, operating at the higher

end of the scale, well above street level. Within a two-month period,

15

the appellant offered to sell or supply drugs for a total price exceeding

$42,400. This figure excludes the unknown quantities of MDMA pills,

the subject of counts 1, 5 and 15, and the three half-weights, the subject

of counts 8, 16 and 21. In addition, the appellant was in possession or

attempted possession of 78 pills weighing 21 g.

16

24

There is no challenge on appeal to these findings.

Aggravating factors

25

The judge identified the following aggravating factors:

1.

The appellant was a commercial drug dealer operating at the

higher end of the scale, well above street level. The amount of

drugs offered for sale was significant, offering in excess of

2,856 MDMA pills over a two-month period, including 2,000

pills in one case and 200 pills on two occasions. Further, the

appellant offered more than 10 g of methylamphetamine for sale

or supply over a two-month period. That indicated that the

appellant had access to large quantities of prohibited drugs,

12

13

14

15

16

White AB 90.

White AB 86.

White AB 92.

White AB 83.

Page 10

[2018] WASCA 41

JUDGMENT OF THE COURT

selling to other drug dealers who then on-sold them to drug

users or other drug dealers for sale to drug users.

17

2.

3.

The appellant was dealing regularly over an extended period of

time, offering prohibited drugs for sale or supply on average

once every two to three days over a two-month period.

18

The appellant offered to sell or supply drugs for over $42,400,

and was selling drugs in order to make money.

19

Mitigating factors

26

The judge identified a number of significant mitigating factors:20

1.

The appellant's plea of guilty, for which he gave a 10% discount

on each of the offences, apart from count 24 for which there

was a 25% discount.

21

2.

The appellant's genuine remorse and insight into the destructive

effect of the drugs that she was dealing in.

3.

4.

5.

The appellant's good record and prior good character.

The appellant's youth.

The appellant's diagnosis of depression and other emotional and

psychological factors associated with her father's illness.

6.

7.

The appellant's susceptibility to the influence of others.

The fact that the offences occurred two years ago and there has

been no subsequent wrongdoing on her part.

8.

The appellant's low risk of reoffending.

27

His Honour then proceeded to carefully identify the competing

sentencing considerations. As the appellant does not challenge any

22

aspect of what his Honour said in these respects, it is not necessary to

outline his Honour's remarks.

17

18

19

20

21

22

White AB 89.

White AB 90.

White AB 90 - 91.

White AB 79 - 80.

White AB 92 - 95.

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[2018] WASCA 41

JUDGMENT OF THE COURT

Disposition

28

29

His Honour then imposed the individual sentences set out in the table

earlier in these reasons. Having done so, his Honour considered

questions of concurrency and cumulation. We will outline his Honour's

remarks in that regard in the course of dealing with grounds 3 and 4.

In short, his Honour imposed a total effective sentence of 4 years

10 months' imprisonment, ordering that the sentences imposed on

count 6 (3 years 10 months) and count 2 (12 months) be cumulative on

each other, and all other sentences be concurrent on those sentences and

each other.

30

His Honour gave careful consideration to whether the term of

imprisonment should be suspended, given the appellant's excellent

antecedents, youth, good prospects of rehabilitation and other

mitigating factors.

23

He concluded that suspension of the term would

be wholly inappropriate considering the serious elements of the

appellant's offending, including its scale, commercial character and the

period of time over which it occurred. There is and could be no

challenge on appeal to that conclusion.

Grounds of appeal

The appellant's grounds of appeal are as follows:

31

1.

The learned sentencing judge erred in imposing a total sentence

disproportionate to the overall criminality, having regard to the

circumstances of the offending, her personal circumstances and

sentencing standards.

2.

The learned sentencing judge erred by not imposing a lower

penalty for the appellant's offers to sell or supply than for her

possession with intent to sell or supply or her attempted

possession with intent to sell or supply.

3.

4.

5.

The learned sentencing judge erred in applying the 'one

transaction rule' incorrectly.

The learned sentencing judge erred in failing to explain what

was concurrent or cumulative in the 23 sentences.

The learned sentencing judge erred by not imposing a lower

sentence than 46 months' imprisonment on count 6.

23

White AB 98 - 100.

Page 12

[2018] WASCA 41

JUDGMENT OF THE COURT

32

33

34

Leave to appeal was granted on ground 5, and the application for leave

on the other grounds was referred to the hearing of the appeal.

24

While not happily worded, ground 5 may be taken to assert that the

sentence on count 6 was manifestly excessive.

25

The appellant requires an extension of time to appeal. Her appeal was

filed a little over four months late. The appellant has sworn an affidavit

seeking to explain the delay. Broadly speaking, the appellant says the

delay arose from her limited financial resources and her initial focus

being not on this appeal against sentence but, instead, on her appeal

against a declaration made that she was a drug trafficker.

26

35

In the circumstances, whether an extension of time should be granted

will be significantly influenced by the merits of the appeal, to which we

now turn.

Sentence appeal - general principles

36

The following principles are well-established:

(1)

Sentencing is a discretionary exercise. An appellate court can

intervene only if the appellant demonstrates either an express or

implied material error. Express error involves acting on a

wrong principle, for example by mistaking the law or facts or

taking into account an irrelevant matter. Implied error arises

where the end result is so unreasonable or unjust that the court

must conclude that a substantial wrong has occurred. Thus, an

appellate court cannot substitute its own opinion for that of the

sentencing court merely because the appellate court would have

exercised a sentencing discretion differently.

(2)

In order to determine whether a sentence for an individual

offence is manifestly excessive, the offence should be viewed in

light of (1) the maximum sentence prescribed by law for the

crime; (2) the standards of sentencing customarily imposed with

respect to it; (3) the place that the criminal conduct occupies in

the scale of seriousness of crimes of that type; and (4) the

offender's personal circumstances.

24

25

26

Order of Mazza JA, 22 August 2017.

Appeal ts 7.

See Tirkot v Director of Public Prosecutions [2018] WASCA 42.

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[2018] WASCA 41

JUDGMENT OF THE COURT

(3)

The first limb of the totality principle requires that the total

effective sentence imposed on an offender who has committed

multiple offences bears a proper relationship to the overall

criminality involved in all of the offences (including any

offences for which the offender is still serving, or is yet to

serve, a term of imprisonment), viewed in their entirety, having

regard to all relevant facts and circumstances including those

referable to the offender personally (for example, the

desirability of accommodating any wish to rehabilitate), all

relevant sentencing factors and the total effective sentences

imposed in comparable cases.

(4)

The range of sentences customarily imposed for a crime does

not establish the range of a sound exercise of the sentencing

discretion. Sentences customarily imposed in comparable cases

provide a yardstick or reference point for ensuring broad

consistency in sentencing, bearing in mind the scope for

significant variations in relevant sentencing factors and that

there is no single correct sentence. What is important is the

unifying principles which sentences imposed in comparable

cases reveal and reflect.

(5)

(6)

When this court dismisses an appeal against sentence and when

it resentences on a successful appeal, its decision does not fix

the upper or lower limit of the range.

Where there is a challenge on totality grounds, the severity of a

sentence imposed on an individual count generally falls to be

assessed in light of the sentences imposed in respect of the other

counts and its contribution to the total effective sentence. A

relatively heavy individual sentence (that is not manifestly

excessive) may be softened by an order that it be served

concurrently with sentences imposed in relation to the other

counts. A relatively light sentence (that is not manifestly

inadequate) may, as a practical matter, have increased severity

if it is ordered to be served cumulatively. The real question is

whether the total effective sentence is unreasonable or plainly

unjust.

37

As ground 4 asserts an ambiguity in the sentencing judge's explanation

of the structuring of the sentence, it is convenient to begin with that

ground.

Page 14

[2018] WASCA 41

JUDGMENT OF THE COURT

Ground 4: which sentences were cumulative and which concurrent?

38

Ground 4, and the submissions in support of it, asserts that the judge

failed to make clear the structure of the 23 sentences which he imposed.

For the reasons below, there is no merit in this complaint.

39

After referring to the totality principle, the sentencing judge stated that

the appellant's overall criminality was best reflected by ordering that

the term of 46 months on count 6 be served cumulatively with the term

of 12 months imposed in relation to count 2 and that the terms of

imprisonment in relation to all of the other counts be served

concurrently with each other. His Honour stated that this resulted in a

27

total effective sentence of 58 months or 4 years and 10 months'

imprisonment.

28

40

The appellant submits that the sentencing process was ambiguous and

thereby miscarried because the judge did not specify whether the

sentences on the balance of the counts were cumulative on, or

concurrent with, the sentences on counts 2 and 6. The appellant

contends that this miscarriage requires the appellant to be resentenced.

29

It is obvious that the other sentences were made to be concurrent with

counts 2 and 6, as well as with each other. There is no other sensible

reading of his Honour's language. Further, that is what his Honour

ordered, as revealed by the Certificate of Final Outcome.

30

41

The appellant also points out that in the course of referring to the

totality principle, the sentencing judge stated that the appellant's

individual sentences add up to 14 years and 11 months or 179 months,

whereas those sentences in fact add up to 181 months.

31

While that is

so, this immaterial mathematical slip did not have, and could not have

had, any effect on his Honour's exercise of discretion. His Honour

referred to the sum of the individual sentences in order to make the

obvious and correct point that, if all sentences were to be imposed

cumulatively, the resultant sentence would be disproportionate to the

overall offending in the case. In that context, whether the numerical

sum of the individual sentences was 179 months or 181 months was,

self-evidently, of no moment.

27

28

29

30

31

White AB 97 - 98.

White AB 98.

Appellant's submissions [61] - [66].

White AB 46 - 50.

Appellant's submissions [57].

Page 15

[2018] WASCA 41

JUDGMENT OF THE COURT

42

For these reasons, we would refuse leave to appeal in respect of

ground 4.

Ground 3: the 'one transaction rule'

43

Ground 3 asserts that the sentencing judge erred in applying the one

transaction rule incorrectly.

44

45

For the reasons that follow, the ground is entirely without merit.

As the appellant's submissions acknowledge, the one transaction 'rule'

is not a rule. It is no more than a rule of thumb designed to assist

judges to ensure that the total sentence imposed for offences which

occur close in time or in a spree is proportionate to the offender's

overall criminality.

32

The real question is one of totality; whether the

total sentence properly reflects the overall criminality of the offender's

offending, having regard to all the circumstances and the offender's

personal circumstances.

Thus, as the appellant rightly concedes, if

33 34

the total effective sentence did not infringe the totality principle, for

practical purposes it would not matter whether the sentencing judge had

erred in the manner submitted in ground 3. As explained below, the

totality principle was not infringed.

46

In any event, whether ground 3 is viewed as a stand alone ground or as

a factor in relation to the totality ground, insofar as ground 3 asserts

that the judge incorrectly applied the one transaction rule, it has no

merit. A series of offers to sell drugs to different people on different

days over a period of about two months is not a single continuing

episode that would engage the one transaction rule. Of course, the

overall criminality of the conduct must be evaluated in giving effect to

the totality principle, but that is a question of totality, the subject of

ground 1, not the one transaction rule.

47

48

For these reasons, we would refuse leave to appeal in respect of

ground 3.

In both written and oral submissions, counsel dealt with grounds 1, 2

and 5, together. We infer that this is because the appellant considers

the contention made in ground 2 - that offences of offering to sell

necessarily carry lower sentences than 'completed' offences such as

32

R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [28]; Lesay v The State of Western Australia

[2011] WASCA 154 [21]; Salkilld v The State of Western Australia [2017] WASCA 168 [84].

33

34

R v Faithfull [28]; Lesay [21]; Salkilld [84].

Appellant's submissions [49].

Page 16

[2018] WASCA 41

JUDGMENT OF THE COURT

selling or possession with intent to sell or supply - is a central element

of each. Consequently, it is convenient to deal next with ground 2.

Ground 2: sentences for offences of offering to sell

49

The appellant emphasises that the vast majority of her offences were

offers to sell, not sales or offences of possession with intent to sell or

supply. The thrust of ground 2 is captured in the appellant's submission

that 'a sale of prohibited drugs must always be more serious than an

offer to sell because the harm to the buyer is more serious than it is to

an offeree'. The appellant cites the decision of this court in Le v The

35

in support of this proposition.

Queen

36

50

51

For the reasons that follow, the submission must be rejected.

The starting point is that the maximum penalty for an offence of

offering to sell is the same as the maximum for offences of possession

with intent to sell or supply, and offences of selling or supplying.

37

That starting point in itself provides a significant obstacle to the

universal proposition advanced by the appellant. Another obstacle

arises from the character of the sentencing process. Sentencing requires

attention to, and a synthesis of, a range of factors and circumstances,

not all of which point in the same direction, so as to arrive at a sentence

which takes account of them all.

38

This may explain why attempts to

advance universal propositions, grading the seriousness of different

species of offences which carry the same maximum penalty, by

reference to a single factor, have often been rejected.

39

In those cases,

the response has been that no one factor is controlling; rather, all the

circumstances must be considered. The same position seems to us to

apply here.

52

The seriousness of any offence against s 6 of the Misuse of Drugs Act

1981 (WA) must be evaluated by reference to all of the circumstances

of the offending. The appellant's universal proposition as to the

comparative seriousness of an offence of offering to sell and an offence

of selling cannot be accepted. While it is generally of some relevance

that an offence of offering to sell does not involve the supply of drugs,

'its relevance will depend upon the reason the offer did not come to

35

36

37

38

39

Appellant's submissions [28].

Le v The Queen [2004] WASCA 214; (2004) 147 A Crim R 269 [143].

Misuse of Drugs Act 1981 (WA), s 34(1)(a).

Veen v The Queen (No 2) (1988) 164 CLR 465, 476; Wong v The Queen (2001) 207 CLR 584 [75].

See, for example, Wong [67] - [72]; Kaokula v The State of Western Australia [2016] WASCA 198 [62];

Chikonga v The State of Western Australia [2017] WASCA 34 [26].

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[2018] WASCA 41

JUDGMENT OF THE COURT

fruition'.

40

Indeed, that observation proceeds on the assumption that the

offer did not come to fruition. While in an offence of offering to sell, it

cannot be assumed that the offer came to fruition in the form of a sale,

equally it cannot necessarily be assumed that the offer did not result in

a sale. The position may simply be unknown.

53

Many factors will be relevant in assessing the seriousness of an offence

of offering to sell a prohibited drug. Among the factors that will often

be relevant are:

41

(a)

(b)

(c)

(d)

(e)

(f)

The terms of the offer, in particular as to the quantity of a drug,

its price, etc.

Whether a particular offer is an isolated one or whether it occurs

in the context of an ongoing supply of prohibited drugs.

Whether, and if so, the extent to which the offer is motivated by

reasons of commercial gain or greed.

Whether the offeror, at all material times, had the intention to

fulfil the offer.

Whether the offeror had the capacity to fulfil the offer to

supply.

Whether the offeror attempts to fulfil the order. If not, whether

any failure to perform was the result of a decision by the person

concerned not to supply or whether it was due to some

intervening or extraneous circumstances.

54

What was said by this court in Le v The Queen does not assist the

appellant. In Le v The Queen, one of the grounds of appeal alleged

that the sentence imposed on one of the counts was manifestly

excessive because there was no actual transaction, rather an offer to

sell, but the judge had sentenced on the same basis as an actual sale.

This court rejected the ground, finding that the judge had not made the

error asserted by the ground. Rather, the judge had evidently taken into

account that the offer to sell had not been completed by an actual sale.

42

Nothing said in Le v The Queen supports a universal proposition that,

40

41

Bahn v The State of Western Australia [2008] WASCA 40 [38].

The State of Western Australia v Doyle [2017] WASCA 207 [32], quoting Vu v The Queen [2006]

NSWCCA 188 [89].

Le v The Queen [143].

42

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[2018] WASCA 41

JUDGMENT OF THE COURT

in all cases, an offence of offering to sell must attract a lesser sentence

than an offence of selling.

55

For these reasons, we would refuse leave to appeal in respect of

ground 2.

Ground 5 - manifest excess

56

The appellant did not articulate submissions specifically directed to her

contention, in ground 5, that the sentence of 3 years 10 months'

imprisonment on count 6 was manifestly excessive. Rather, her

complaint in that regard was wrapped up with her contention, in

ground 2, as to the lesser seriousness of an offence of offering to sell or

supply. Her submissions also emphasised the mitigating factors in the

appellant's favour, including her youth, good record (including since

the offences were committed), remorse and insight, and low risk of

reoffending.

57

58

For the reasons that follow, we are not persuaded that the sentence

imposed on count 6 was manifestly excessive.

The judge imposed a sentence of 3 years 10 months' imprisonment.

The maximum penalty for the offence is 25 years' imprisonment or a

$100,000 fine or both.

59

On the judge's unchallenged findings of fact, the appellant's offence in

count 6 had a number of serious features:

(1)

Her offer was to sell a very significant quantity of MDMA,

namely 2,000 tablets. She offered to sell them at $12.50 per

tablet, thus for a total price of $25,000.

(2)

Although the appellant did not have stock of MDMA when she

offered to sell 2,000 tablets, she evidently had access to large

amounts of drugs in that she was able to get two quotes from

two suppliers for 2,000 pills on the same day.

43

(3)

(4)

The appellant intended to fulfil her offer, but agreement on

price was not reached.

Count 6 was not an isolated offence. Rather, it occurred in the

context of a persistent and ongoing commercial drug operation.

43

White AB 82.

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[2018] WASCA 41

JUDGMENT OF THE COURT

(5)

The offence was committed as part of commercial drug dealing

by the appellant, operating at the higher end of the scale, well

above street level. The appellant was offering to sell to other

44

drug dealers, who would then on-sell.

60

61

The appellant's plea of guilty was entered very late. Perhaps somewhat

generously, the sentencing judge allowed a discount of 10% for that

plea in relation to count 6.

There is no doubt that the appellant had a number of mitigating factors

in her favour. However, in sentencing for drug dealing offences,

matters personal to the offender have less significance than might

otherwise be the case. Regrettably, the commission of drug dealing

offences by young offenders exhibiting some or all of prior good

character, early guilty plea, remorse, family support, positive steps

towards rehabilitation and no significant risk of reoffending, is all too

common.

45

The following principles are well established. The major

sentencing considerations for offences of dealing or trafficking in

dangerous drugs of addiction are general and personal deterrence. The

quantity of the drugs in question is not generally the chief factor to be

taken into account, but it is a matter of importance. In part, that is

because it can be presumed that the greater the quantity the greater the

harm which may be done to the community. 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 personal gain are highly significant. Matters personal to

the offender are not irrelevant, but will almost always be given a

reduced weight.

62

Until recently, this court had not been called upon to decide whether an

individual sentence for offering to sell or supply a prohibited drug was

manifestly inadequate or manifestly excessive.

46

Thus, there is not a

pool of reasonably comparable cases against which to measure the

sentence. That in itself does not prevent this court from considering

and determining whether the sentence imposed was manifestly

inadequate.

47

44

45

White AB 83.

See, for example, the cases discussed in The State of Western Australia v Johnson [2010] WASCA 187

[25] and in The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198 [26].

46

The first such decision is The State of Western Australia v Doyle [2017] WASCA 207.

47

The State of Western Australia v Doyle [36]; Gaskell v The State of Western Australia [2018] WASCA 8

[23], [143].

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[2018] WASCA 41

JUDGMENT OF THE COURT

63

In The State of Western Australia v Doyle, this court upheld a State

appeal on grounds, among others, of the manifest inadequacy of

individual sentences imposed for offering to sell or supply a prohibited

drug. The youthful offender, who received a 25% discount for guilty

pleas, was resentenced to a term of immediate imprisonment of 3 years

on each of three offences of offering to sell or supply 2,000 tablets of

MDMA. While one sentencing decision falls well short of establishing

a customary range of sentence, bearing in mind the 25% discount given

in Doyle as against the appellant's 10% discount for her guilty plea, this

court's resentencing in Doyle does not sit easily with the appellant's

contention that her sentence of 3 years 10 months' immediate

imprisonment was manifestly excessive.

64

Taking into account:

(1)

(2)

(3)

the maximum penalty of 25 years' imprisonment or a $100,000

fine or both;

the seriousness of the appellant's offence, including the features

to which we have referred at [59] above;

the place the appellant's offence occupies on the scale of

seriousness of offences of this kind;

(4)

(5)

the appellant's personal circumstances;

the mitigating factors to which the sentencing judge referred;

and

(6)

all relevant sentencing factors;

we are not persuaded that the sentence of 3 years 10 months' immediate

imprisonment was unreasonable or plainly unjust. The sentence

imposed was commensurate with the seriousness of the offending.

Error cannot be inferred from the outcome.

65

For these reasons, ground 5 fails.

Ground 1: totality

66

One major strand of the appellant's claim of breach of the totality

principle is her contention, by ground 2, that offences of offering to sell

necessarily attract lower sentences than offences of sale or possession

with intent to sell or supply. We have rejected that contention in

dealing with ground 2. In support of her contention that the total

Page 21

[2018] WASCA 41

JUDGMENT OF THE COURT

effective sentence infringed the first limb of the totality principle, the

appellant also points to her youth, her good record both before and after

this offending, and the fact that the sentence imposed amounted to

about a quarter of her life at the time of sentencing. Further, the

48

appellant points to what she characterises as comparable cases.

49

67

68

We have set out at [53] some factors that will often be relevant in

determining the seriousness of offences of offering to sell a prohibited

drug. Consideration of those factors in this case demonstrates the

serious nature and extent of the appellant's offending.

On the judge's unchallenged findings, factors (a) to (e) all tended to

reinforce the seriousness of the appellant's offences of offering to sell

or supply prohibited drugs, while factor (f) was unknown and thus

neutral. The appellant offered to sell more than 2,850 MDMA pills and

more than 10 g of methylamphetamine for prices totalling more than

$42,000.

50

The offers were made in the context of an ongoing and

persistent commercial drug operation. The offers were motivated by

commercial gain. The appellant was a commercial drug dealer,

operating at the higher end of the scale, well above street level. Often

at least, she was offering to sell to dealers, not to users.

clearly intended to fulfil her offers, at least whenever agreement on

price was reached. While it is true, as the appellant submits, that in

51

The appellant

52

the case of offers of large quantities, the appellant was offering tablets

she did not then have, the judge found that the appellant had access to

large quantities of drugs, especially MDMA.

53

In relation to count 6,

the judge found that, although the appellant did not have stock of

MDMA when she offered to sell 2,000 pills, she was able to get two

quotes from two suppliers for 2,000 pills on the same day.

54

69

There were mitigating factors in the appellant's favour, including those

that the appellant has emphasised in her submissions. However, our

observations at [61] as to the lesser weight ordinarily to be given to

personal factors in sentencing for drug dealing offences apply again

here.

48

49

50

51

52

53

54

Appellant's submissions [24], appeal ts 8 - 9.

Appellant's submissions [29] - [40].

White AB 89 - 90.

White AB 89.

Appellant's submissions [28].

White AB 82.

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[2018] WASCA 41

JUDGMENT OF THE COURT

70

Very few of the cases to which the appellant points are of any real

assistance as reasonably comparable cases. The cases relied on by the

appellant can be placed into two groups. The first group involve

55

first-instance sentencing decisions on drug offences under

Commonwealth law. For two reasons, these are of no assistance. First,

cases from the Commonwealth sphere, with different sentencing

regimes and different sentencing principles, are of no material

assistance in discerning whether sentences for offences under the

Misuse of Drugs Act reveal implied error. Secondly, consistency in

sentencing is assessed by reference to the decisions of this court, rather

than by reference to decisions of judges at first instance.

56

71

The second group of cases on which the appellant relies57

are decisions

of this court concerning offences under the Misuse of Drugs Act. Most

of those decisions provide only very limited assistance as comparators

because of the differences in the circumstances of the offending, the

offender, or both. In that regard, the following observations, which are

not exhaustive, may be made:

(1)

In TXT v The State of Western Australia, the ultimate total

58

effective sentence of 2 1/2 years' imprisonment reflected a 50%

discount for police cooperation, as well as the discount for a

plea of guilty at the earliest reasonable opportunity.

(2)

The State of Western Australia v Baldini involved only three

59

counts, two of which involved offences against s 6(1) of the

Misuse of Drugs Act. The quantities of drugs involved were

considerably less than the present case. The offender in Baldini

was found to be dealing at street level. The offender also

voluntarily disclosed information that led to one of his charges.

That in itself was mitigating.

60

61

(3)

Zohdy v The State of Western Australia concerned only two

62

counts, to which the offender entered fast-track pleas of guilty.

The sentencing judge observed that the offender was a 'foolish

55

56

Appellant's submissions [29] - [32].

Kershaw v The State of Western Australia [2014] WASCA 111; (2014) 66 MVR 551 [161]; Salkilld v

The State of Western Australia [2017] WASCA 168 [66].

57

58

59

60

61

62

Appellant's submissions [35] - [40].

TXT v The State of Western Australia [2012] WASCA 28; (2012) 220 A Crim R 266.

The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198.

Baldini [30].

Baldini [33].

Zohdy v The State of Western Australia [2014] WASCA 141.

Page 23

[2018] WASCA 41

JUDGMENT OF THE COURT

and immature person' who was 'partly driven by blind loyalty to

her partner'.

63

(4)

(5)

Ruvinovski v The State of Western Australia involved a

64

conspiracy to sell or supply 1.25 kg of methylamphetamine with

a purity ranging between 68% and 70%. Consequently, it

provides no assistance as a comparator.

Bahn v The State of Western Australia involved significantly

65

more serious offences for which a significantly higher sentence

was imposed. The offences were (1) conspiracy to sell or

supply 2 kg of methylamphetamine; (2) offering to sell 10,000

tablets of MDMA; and (3) supplying 1 kg of heroin. It provides

no assistance as a comparator.

72

73

The other cases relied on by the appellant are dealt with below.

For the purposes of comparison, it should be noted that MDMA is to be

treated as seriously, for the purposes of sentencing, as

methylamphetamine, heroin and cocaine.

66

74

75

The other cases referred to by the parties include the following.

In Birch v The State of Western Australia,67

the offender pleaded

guilty to eight drug offences for which she was sentenced to a total

effective sentence of 8 years' imprisonment. The offender was 29 years

old. She had a prior criminal history, but, apart from an offence of

possession of cannabis, had not previously been convicted of a drug

offence. The offender was characterised as a significant dealer in

ecstasy for profit.

68

76

77

In Labrook v The State of Western Australia,69

the offender received a

total effective sentence of 4 years 10 months' immediate imprisonment

for three counts of offering to sell methylamphetamine with a total

weight of 32.5 g, to which he pleaded guilty.

In Rossi v The State of Western Australia,70

the offender was

sentenced after a plea of guilty to a total effective sentence of 8 years'

63

64

65

66

67

68

69

70

Zohdy [19].

Ruvinovski v The State of Western Australia [2013] WASCA 204.

Bahn v The State of Western Australia [2008] WASCA 40.

The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 [111].

Birch v The State of Western Australia [2011] WASCA 101.

Birch [36] - [37].

Labrook v The State of Western Australia [2016] WASCA 127.

Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508.

Page 24

[2018] WASCA 41

JUDGMENT OF THE COURT

imprisonment for 16 drug-related offences, including (1) two offences

of possession with intent to sell or supply of amounts totalling about 60

g of methylamphetamine; (2) five offences of offering to sell

methylamphetamine in amounts totalling 37 g; and (3) an offence of

selling 6.98 g of methylamphetamine.

78

In Hobby v The State of Western Australia,71

the offender pleaded

guilty to 20 drug offences. Nineteen were counts of offering to sell or

supply a prohibited drug, variously MDMA, methylamphetamine and

cannabis. The other offence was possession of methylamphetamine

with intent to sell or supply. The offers were to sell, in total, more than

140 g of cannabis, more than 552 MDMA tablets and more than

173.75 g of methylamphetamine.

72

The most serious of these offences

was an offer to sell 470 MDMA tablets, for which the offender was

sentenced to a term of 3 years' immediate imprisonment.

offender's appeal on totality grounds was dismissed.

The

79

In Russell v The State of Western Australia [No 2],73

after

resentencing on appeal, the offender received a total effective sentence

of 6 years' imprisonment for seven counts in an indictment of offering

to sell, selling or attempting to possess various quantities of MDMA or

methylamphetamine and numerous drug related charges in a notice

under s 32 of the Sentencing Act. The offender pleaded guilty on the

fast-track and was not motivated solely by commercial motives.

74

80

Consideration of the cases referred to by the parties provides no support

for a conclusion that the total effective sentence imposed on the

appellant in this case is so high as to reveal implied error. In our

opinion, accounting for the scale, persistence and commercial character

of the appellant's offending, the total effective sentence of 4 years

10 months' immediate imprisonment imposed is broadly consistent with

the sentencing outcomes in other cases with some comparable features,

including those to which we have referred.

81

After taking into account:

(a)

(b)

the maximum penalties for the offences;

the circumstances and criminality of the appellant's overall

offending, including the features summarised at [68] above;

71

72

73

74

Hobby v The State of Western Australia [2009] WASCA 108.

Hobby [8].

Russell v The State of Western Australia [No 2] [2010] WASCA 159.

Russell [14].

Page 25

[2018] WASCA 41

JUDGMENT OF THE COURT

(c)

(d)

(e)

the appellant's personal circumstances;

all relevant sentencing factors; and

general sentencing patterns for offending of this kind;

it is not reasonably arguable that the total effective sentence of 4 years

10 months' immediate imprisonment infringed the first limb of the

totality principle. In our view, the total effective sentence imposed was

commensurate with the overall seriousness of the offending having

regard to all relevant circumstances and all relevant sentencing factors.

Error by the sentencing judge cannot be implied from the sentencing

outcome.

82

For these reasons, we are not satisfied that ground 1 has reasonable

prospects of success. Consequently, we would refuse leave to appeal in

respect of ground 1.

Conclusion

83

84

Given our views on the lack of merit of the appellant's grounds of

appeal, we would refuse to grant an extension of time to appeal.

For the reasons set out above, we would make orders to the following

effect:

1.

2.

3.

The application for an extension of time to appeal be refused.

Leave to appeal on grounds 1, 2, 3 and 4 be refused.

The appeal be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of

the Supreme Court of Western Australia.

LW

RESEARCH ASSOCIATE/ORDERLY TO BEECH JA

4 APRIL 2018

Page 26

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Citations

Tirkot v The State of Western Australia [2018] WASCA 41

Most Recent Citation

Tirkot v The Director of Public Prosecutions (WA) [2018] WASCA 42

Cases Citing This Decision

18

The State of Western Australia v Harris [2022] WADC 64

Searle v The State of Western Australia [2023] WASCA 129

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

Cases Cited

27

Statutory Material Cited

1

Bahn v The State of Western Australia [2008] WASCA 40

Birch v The State of Western Australia [2011] WASCA 101

Chikonga v The State of Western Australia [2017] WASCA 34