Towler v The State of Western Australia

[2018] WASCA 141

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   TOWLER -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 141

CORAM:   BUSS P

MAZZA JA

ALLANSON J

HEARD:   4 APRIL 2018

DELIVERED          :   10 AUGUST 2018

FILE NO/S:   CACR 165 of 2017

BETWEEN:   ROHAN PAUL TOWLER

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   STEVENSON DCJ

File Number            :   IND 1445 of 2016

Catchwords:

Criminal law - Appeal against sentence - Possession of methylamphetamine with intent to sell or supply - 13.9 g of methylamphetamine having a purity of 69% - Appellant convicted after trial - Sentence of 4 years' immediate imprisonment - Manifest excess

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a)

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	Mr J A Scholz

Solicitors:

Appellant	:	Patti Chong Lawyer
Respondent	:	Director of Public Prosecutions (WA)

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

Barton v The State of Western Australia [2016] WASCA 196

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

Bui v The State of Western Australia [2014] WASCA 168

Cant v The State of Western Australia [2009] WASCA 188

Cartwright v The State of Western Australia [2010] WASCA 4

Chu v The State of Western Australia [2012] WASCA 135

Dann v The State of Western Australia [2006] WASCA 254

Dao v The State of Western Australia [2007] WASCA 237

Formica v The State of Western Australia [2013] WASCA 237

JM v The State of Western Australia [2015] WASCA 40

Karakuyu v The State of Western Australia [2012] WASCA 75

Le v The State of Western Australia [2014] WASCA 120

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Lum v The State of Western Australia [2016] WASCA 145

Lynch v The State of Western Australia [2011] WASCA 243

Moreton v The State of Western Australia [2011] WASCA 258

The State of Western Australia v Hunter [2014] WASCA 87

The State of Western Australia v Littlefair [2013] WASCA 177

Tran v The State of Western Australia [2016] WASCA 37

JUDGMENT OF THE COURT:

1. This is an appeal against sentence.

2. The appellant was charged on indictment with one count which alleged that on 25 September 2015, at Mandurah, he had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act).

3. On 8 June 2017, the appellant was convicted, after a trial in the District Court before Stevenson DCJ and a jury, of the count.

4. On 25 July 2017, the trial judge sentenced the appellant to 4 years' immediate imprisonment, backdated to 28 March 2017.  A parole eligibility order was made.

5. The sole ground of appeal alleges that the sentence of 4 years' immediate imprisonment was manifestly excessive.  On 1 October 2017, Mazza JA referred the application for leave to appeal to the hearing of the appeal.  

6. We would refuse leave to appeal and dismiss the appeal.  Our reasons are as follows.

The facts and circumstances of the offending

1. The facts and circumstances of the offending, as found by the trial judge in his sentencing remarks, are as follows.

2. On 25 September 2015, police executed a search warrant at residential premises known as 8 Truarn Street, Mandurah in relation to a former occupant of the premises.  The appellant was present when the police arrived.  He assisted the police with their initial inspection of the premises.  The appellant identified a bedroom where he had been staying for about the past two weeks.  The police officers told the appellant that he was free to stay or leave.  The appellant said he had to go to work and asked if he could collect some clothes.  The police officers told him that he could collect the clothes. 

3. The appellant entered his bedroom and collected some clothes and a black sunglasses case.  He wrapped the clothes around the sunglasses case.  A police officer asked the appellant whether a green backpack, found by police in a laundry or study, belonged to him.  The appellant replied that it was not his backpack.  However, the appellant then put his clothes and the black sunglasses case into the backpack.  A police officer told the appellant that it would be necessary for the police to search the backpack before he left the house.

4. The police, upon searching the backpack, found that the black sunglasses case contained a clipseal bag with 13.9 g of methylamphetamine having a purity of 69%.  The police also located a glass smoking implement in the backpack.  The trial judge was satisfied that the implement was used for smoking cannabis.  The backpack also contained the appellant's New Zealand passport and a credit card.

5. After the police discovered the methylamphetamine, the appellant identified an Apple mobile telephone and a Huawei mobile telephone, both of which were subscribed to him.  Messages downloaded from the mobile telephones established that the appellant had used the telephones to deal in methylamphetamine for a period up to 25 September 2015.

6. In addition, the police located other drug‑related paraphernalia in the premises occupied by the appellant, including washed clipseal bags in his bedroom and unused clipseal bags in other parts of the premises.  Also, there were four sets of electronic scales in the premises, including one set next to the appellant's laptop computer.

The trial judge's sentencing remarks and the appellant's personal circumstances and antecedents

1. The trial judge incorporated into his sentencing remarks the facts and circumstances of the offending which we have recounted.

2. His Honour said that the three‑day trial had been conducted 'reasonably efficiently' by the defence.  Also, the appellant had cooperated, initially, with the police when the search warrant was executed.

3. The appellant was a user of methylamphetamine as well as a dealer.

4. Although the appellant was to be sentenced only for the offence of which he had been convicted, the offence was committed in the context of ongoing dealings by the appellant in significant quantities of methylamphetamine.

5. The appellant was born on 20 July 1984.  He was aged 31 at the time of the offending and was 33 when sentenced.

6. The appellant had a prior criminal record including prior convictions for possession of a prohibited drug (amphetamine) and possession of drug paraphernalia.  The other prior convictions comprised traffic‑related offences.  The appellant had not previously been sentenced to a term of imprisonment.

7. The appellant was born in New Zealand.  His childhood, education and work history were unremarkable.  He has strong support from his mother and brother, both of whom live in New Zealand.  The appellant has a strong work ethic.

8. The trial judge made these findings in relation to the appellant's offending:

   I find that there was a commercial element to your engagement in the drug culture and the commission of the offence for which you are to be sentenced … 

   Therefore, although it is not possible to discern with any degree of accuracy the extent to which you were making money from the commission of the offence on this occasion it would appear that you were heavily engage[d] in the trade in supplying to your peers and others methylamphetamine.  It would appear that you were dealing in significant quantities … 

   But I reiterate that you are to be sentenced only for the offence for which you have been convicted, namely the possession of 13.9 grams at 69 per cent with intent to sell or supply it [to] others (ts 234).

9. His Honour said that the appellant did not evince any remorse or insight in relation to his offending, at least until after his conviction.

10. The trial judge accepted that 'there is an element in [the appellant's] behaviour and character which is good in the sense that [the appellant is] … hardworking, [kind‑hearted] and always positive and helping others in need unconditionally' (ts 235).

11. His Honour was of the view that the risk of the appellant reoffending was very low and that he would 'when the opportunity presents itself, live in the community, obtain employment and otherwise make a positive contribution having learnt a lesson in life' (ts 235).

12. The trial judge noted that defence counsel had conceded, properly, that the only appropriate sentence was a term of immediate imprisonment.  His Honour added that he was satisfied, positively, that there was no basis upon which any term of imprisonment could be suspended.

The appellant's submissions

1. Counsel for the appellant submitted that the appellant's drug dealing was not committed 'solely' for commercial gain.  There was merely a 'commercial element' to his offending.  The appellant's personal circumstances were of 'some' mitigating value.  According to counsel, having regard to a number of previous sentencing decisions, the sentence of 4 years' immediate imprisonment imposed on the appellant was, in all the relevant circumstances, manifestly excessive.

The merits of the appeal

1. A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error.  It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

2. When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases.  A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases.  Nevertheless, each case turns on its own particular facts and circumstances.  Sentencing ranges can provide only general guidance.  The limits of the guidance afforded by comparable cases are flexible rather than rigid.  A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive.  The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case.  Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

3. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

4. The discretion conferred on sentencing judges is, of course, of fundamental importance.  This court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.  See Lowndes v The Queen.[1] 

   [1] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).

5. At the material time, the maximum penalty for the offence of possessing methylamphetamine with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, was 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the MD Act.

6. The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence.  The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance.  Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organization, or generally, and whether the offending was committed for commercial gain.  The degree of purity is often regarded as significant.  Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. 

7. We have had regard to the sentencing dispositions in a range of cases including Dann v The State of Western Australia;[2] Bosworth v The State of Western Australia;[3] Dao v The State of Western Australia;[4] Cant v The State of Western Australia;[5] Cartwright v The State of Western Australia;[6] Lynch v The State of Western Australia;[7] Moreton v The State of Western Australia;[8] Karakuyu v The State of Western Australia;[9] Chu v The State of Western Australia;[10] The State of Western Australia v Littlefair;[11] Formica v The State of Western Australia;[12] The State of Western Australia v Hunter;[13] Le v The State of Western Australia;[14] Bui v The State of Western Australia;[15] JM v The State of Western Australia;[16] Tran v The State of Western Australia;[17] Barton v The State of Western Australia;[18] Lum v The State of Western Australia; [19] and the cases cited in those decisions.  We have also had regard to other cases cited by counsel for the appellant and counsel for the State.

   [2] Dann v The State of Western Australia [2006] WASCA 254.

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

   [4] Dao v The State of Western Australia [2007] WASCA 237.

   [5] Cant v The State of Western Australia [2009] WASCA 188.

   [6] Cartwright v The State of Western Australia [2010] WASCA 4.

   [7] Lynch v The State of Western Australia [2011] WASCA 243.

   [8] Moreton v The State of Western Australia [2011] WASCA 258.

   [9] Karakuyu v The State of Western Australia [2012] WASCA 75.

   [10] Chu v The State of Western Australia [2012] WASCA 135.

   [11] The State of Western Australia v Littlefair [2013] WASCA 177.

   [12] Formica v The State of Western Australia [2013] WASCA 237.

   [13] The State of Western Australia v Hunter [2014] WASCA 87.

   [14] Le v The State of Western Australia [2014] WASCA 120.

   [15] Bui v The State of Western Australia [2014] WASCA 168.

   [16] JM v The State of Western Australia [2015] WASCA 40.

   [17] Tran v The State of Western Australia [2016] WASCA 37.

   [18] Barton v The State of Western Australia [2016] WASCA 196.

   [19] Lum v The State of Western Australia [2016] WASCA 145.

8. The appellant's offending was serious.  It involved the possession, with intent to sell or supply, of 13.9 g of methylamphetamine with a high degree of purity.  The appellant was a dealer as well as a user of the drug.  There was a 'commercial element' to the commission of the offence.  Dealers in prohibited drugs who are also addicted to the drugs are not treated more leniently merely because the motive for their dealing is the need for money to finance their addiction.  So, whether the appellant intended to sell or supply the methylamphetamine in question to obtain revenue or reduce a drug debt is of no mitigatory significance.  It still involves selling or supplying prohibited drugs for a commercial purpose.  See Chu v The State of Western Australia.[20]

   [20] Chu v The State of Western Australia [2012] WASCA 135 [33] (Mazza JA; Buss JA agreeing).

9. The appellant was aged 31 at the time of the offending and was 33 when sentenced.  He was not youthful or inexperienced for sentencing purposes.

10. As we have mentioned, the appellant had a prior criminal record including prior convictions for possession of a prohibited drug (amphetamine) and possession of drug paraphernalia.  The fact that the previous sentences did not achieve the purpose for which they were imposed did not aggravate the seriousness of his current offending. 

11. As the trial judge appreciated, the appellant was only to be punished for his current offending.  However, the fact that the appellant had been dealing in significant quantities of prohibited drugs for some time demonstrated that the current offence was not an isolated incident or an aberration by a person who was otherwise of good character.

12. Although the appellant was entitled to proceed to trial, he could not claim the mitigation that a plea of guilty would have brought.

13. His Honour found that there was some mitigation in the appellant's personal circumstances.  However, as we have mentioned, matters personal to an offender in a case of this kind will almost always be subsidiary considerations.  The appellant did not evince any remorse or insight in relation to his offending, at least until after his conviction.

14. The principal sentencing factors were appropriate punishment and personal and general deterrence.

15. In our opinion, the sentence of 4 years' immediate imprisonment is broadly consistent with reasonably comparable cases.  After evaluating the sentence, in the context of the maximum penalty, the facts and circumstances of the offending, the standards of sentencing customarily observed, the place which the appellant's offending occupies on the relevant scale of seriousness and all mitigating factors, we are satisfied that the sentence was not unreasonable or plainly unjust.  The existence of error is unable to be inferred from the sentencing outcome. 

16. The ground of appeal fails.

Conclusion

1. We would refuse leave to appeal because the sole ground of appeal lacks merit.  The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

DR
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE BUSS

10 AUGUST 2018