Trajkoski v The State of Western Australia
[2018] WASCA 176
•12 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TRAJKOSKI -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 176
CORAM: BUSS P
BEECH JA
HEARD: 23 AUGUST 2018
DELIVERED : 12 OCTOBER 2018
FILE NO/S: CACR 257 of 2017
BETWEEN: TONI TRAJKOSKI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : IND 836 of 2015 and IND 185 of 2016
Catchwords:
Criminal law and sentencing - Offences of possessing with intent methylamphetamine and heroin, selling methylamphetamine and cultivating cannabis - Whether total effective sentence of 10 years 6 months' imprisonment infringed first limb of totality principle
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)
Result:
Leave to appeal on ground 1 refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr S B Watters |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Gary Rodgers Barrister & Solicitor |
| Respondent | : | The Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Nguyen v The State of Western Australia [2017] WASCA 35
Oziewicz v The State of Western Australia [2018] WASCA 81
The State of Western Australia v Johnson [2010] WASCA 187
JUDGMENT OF THE COURT:
Introduction
The appellant was convicted of seven drug offences involving methylamphetamine, heroin and cannabis. He was sentenced to a total effective sentence of 10 years 6 months' imprisonment.
The appellant seeks leave to appeal against this total effective sentence on the single ground that it offends the first limb of the totality principle. For the reasons that follow, in our opinion, there is no merit in this ground of appeal. Consequently, leave to appeal must be refused and the appeal dismissed.
The charges and the sentences imposed
The appellant was convicted of charges on two separate indictments: indictment 836 of 2015 (the 2015 indictment) and indictment 185 of 2016 (the 2016 indictment). He pleaded guilty to all five counts on the 2015 indictment. He was convicted, after trial, of both counts on the 2016 indictment.
The offences on each indictment, and the sentence imposed for each of them, are set out in the table below.
| The 2015 indictment | ||
| Count | Offence | Sentence |
| 1 | Sale of prohibited drug contrary to s 6(1)(c) of the Misuse of Drugs Act (methylamphetamine) | 15 months' immediate imprisonment (concurrent) |
| 2 | Sale of prohibited drug contrary to s 6(1)(c) of the Misuse of Drugs Act (methylamphetamine) | 2 years 6 months' immediate imprisonment (head sentence) |
| 3 | Possession with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act (heroin) | 9 months' immediate imprisonment (concurrent) |
| 4 | Possession with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act (heroin) | 12 months' immediate imprisonment (concurrent) |
| 5 | Cultivation of a prohibited plant with intent to sell or supply contrary to s 7(1)(a) of the Misuse of Drugs Act (cannabis) | 9 months' immediate imprisonment (concurrent) |
| The 2016 indictment | ||
| Count | Offence | Sentence |
| 1 | Possession with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act (methylamphetamine) | 4 years' immediate imprisonment (cumulative) |
| 2 | Possession with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act (heroin) | 4 years' immediate imprisonment (cumulative) |
The facts
The judge sentenced the appellant following his conviction, after his trial, on the charges on the 2016 indictment. At the trial, the appellant made admissions as to the facts of the charges on the 2015 indictment, to which he had pleaded guilty. Other evidence was adduced concerning those offences. In sentencing the appellant, the judge made findings of fact concerning all seven of the appellant's offences. These findings are summarised below.
Offending the subject of the 2015 indictment
The appellant's offending came to light in the course of a police investigation into the suspected drug activities of others.
Count 1: On 23 July 2014, the appellant sold 13.86 g of methylamphetamine of 73 ‑ 76% purity to an undercover police operative who paid $7,000 in cash.[1]
[1] ts 825.
Count 2: A week later, the appellant sold 55.56 g of methylamphetamine of 72 ‑ 73% purity to the same undercover police operative who paid $25,000.[2]
[2] ts 825.
Count 3: On 13 August 2014, the appellant was searched by police. Seven small clipseal bags containing 2.09 g of heroin of 76% purity was found in a bag that had been worn by the appellant. There was also more than $7,000 in cash in the bag.[3]
[3] ts 825.
Count 4: The same day, the appellant was taken to a police station where he was strip‑searched. A clipseal bag containing 8.33 g of heroin of 65% purity was found in the appellant's underwear.[4]
[4] ts 825.
Count 5: On 21 November 2014, at a unit in Girrawheen, the appellant cultivated cannabis through a hydroponic set‑up involving 12 cannabis plants and nine clones.[5]
[5] ts 825.
The judge found that, in July 2014, the appellant had regular access to, and had been otherwise dealing in, quantities of drugs similar to the weights that he sold to the undercover police operative.[6] The appellant indicated to the undercover police operative that he would be able to regularly provide further quantities of methylamphetamine of a similar weight. Further, the appellant indicated that he knew the price of heroin was between $35,000 ‑ 40,000 for 1 1/2 oz.[7]
[6] ts 825 ‑ 826.
[7] ts 826.
The appellant admitted that he was higher in the chain of distribution than the other two people involved in facilitating the transaction. Further, the appellant admitted that his share of the proceeds for count 1 was all of the $7,000 received and, for count 2, all of the $25,000 received.[8]
Offending the subject of the 2016 indictment
[8] ts 826.
The judge found that the facts in relation to the two counts, the subject of the 2016 indictment, were as follows.
On 20 November 2014, police conducted a search of the appellant's residence. In the ceiling, police located a blue clipseal sandwich bag with packages inside it, a pink clipseal sandwich bag wrapped with elastic bands and a clear clipseal bag containing a ball about the size of a tennis ball, wrapped in white tape.[9]
[9] ts 828.
Within these bags was:
(1)133 g of methylamphetamine of 64 - 85% purity, the subject of count 1; and
(2)175 g of heroin of 84 - 88% purity, the subject of count 2.[10]
[10] ts 828.
Police also located $39,900 in cash. When the appellant was arrested on 21 November 2014, a further $21,050 was found in the appellant's girlfriend's handbag.[11] The judge was satisfied beyond reasonable doubt that the vast majority of both sets of cash was the proceeds of the appellant's drug dealing.[12]
[11] ts 829.
[12] ts 829.
In the course of their search, police found a number of other items reflecting the paraphernalia associated with a drug dealing operation. These included an inventory list, different types of clipseal bags, multiple sets of electronic scales, thousands of rubber bands, two torch stun guns, quantities of designer jewellery, watches, perfume and clothing, mobile phones and electronic devices such as laptops and iPads.[13] The premises had a sophisticated closed‑circuit television security surveillance system.[14]
[13] ts 829.
[14] ts 829.
Personal circumstances
At the time of sentencing, the appellant was 46 years of age. He has a daughter who was then 12. The appellant expressed concerns for how his incarceration would affect his daughter.[15] However, as the judge observed, such concerns did not inhibit his drug dealing in 2014.[16]
[15] ts 829.
[16] ts 829.
The appellant has a long history of drug and other offending. He had received separate prior terms of imprisonment for burglary in 1993, armed robbery in 1994, possession of drugs with intent to sell or supply in 1999, possession of heroin and amphetamine with intent to sell or supply in 2000, possession of heroin with intent to sell or supply in 2001 and 2002, further drug possession offences in 2002 and 43 offers to sell or supply drugs in 2010.[17]
[17] ts 827 - 828.
The judge described the appellant as a functioning drug addict who had been a drug user for many years.[18]
[18] ts 829 - 830.
Sentencing remarks
The judge found that:
(1)the appellant was, in November 2014, a 'professional drug dealer for commercial gain specialising in methylamphetamine and heroin and had been for some time';[19]
(2)the appellant was towards the top of any hierarchy;[20] and
(3)the appellant had materially benefited to a significant extent from his drug dealing.[21]
[19] ts 829.
[20] ts 830.
[21] ts 830.
The offences on the 2016 indictment were committed while the appellant was on bail for counts 3 and 4 of the 2015 indictment. The judge described the commission of those offences while on bail as a 'seriously aggravating factor showing a flagrant disregard for the law'.[22]
[22] ts 830.
The judge said that he would discount the individual head sentences for the counts on the 2015 indictment, on account of the appellant's pleas of guilty to those offences, pursuant to s 9AA of the Sentencing Act 1995 (WA). For counts 1 and 2 the discount was 15%. For counts 3, 4 and 5 the discount was 25%.[23]
[23] ts 830.
The judge set out well‑established principles relevant to the sentencing of those who have committed serious drug offences.[24] The judge observed that the appellant's prior criminal record did not aggravate his offending. However, the judge found that the appellant's record of drug offending, together with this offending, meant that the need to deter the appellant personally was 'very much at the forefront of [the judge's] mind'.[25]
[24] ts 830 ‑ 831.
[25] ts 831.
The judge referred to the totality principle,[26] and observed that he had accommodated the totality principle by making sentences on the 2015 indictment concurrent with each other. Further, the judge said that for each of the counts on the 2015 indictment, he had imposed a term of imprisonment that was shorter than if he had been sentencing for a single offence. His Honour then imposed the sentences set out in the table at [4] above.
[26] ts 831 ‑ 832.
Ground of appeal
The sole ground of appeal is that the total effective sentence of 10 years 6 months' imprisonment offends the first limb of the totality principle.
The appellant's submissions
The appellant submits that the total effective sentence imposed on him does not bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to all of the relevant facts and circumstances, including those referable to the offender personally.[27]
[27] Appellant's submissions [31] ‑ [32].
In particular, the appellant submits that there should have been some concurrency of the sentences imposed for the two counts on the 2016 indictment.[28]
[28] Appellant's submissions [41]; appeal ts 2.
Disposition
The following general 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)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 those, if any, in respect of 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 (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(3)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.
(4)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.
(5)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 heavy individual sentence (which 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 (which 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.
The approach to sentencing for offences against s 6(1) of the Misuse of Drugs Act 1981 (WA) is well established. The principal sentencing considerations for offences of dealing or trafficking in dangerous drugs are general and personal deterrence. Generally, the weight of the drugs is not the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. The degree of purity is often regarded as significant. That is because it can be presumed that the greater the quantity and the purity, the greater the harm which may be done to the community. Other matters of importance include 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 commercial gain. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
As McLure P noted in The State of Western Australia v Johnson:[29]
It is the experience of the courts that illicit drugs cause or materially contribute to a very significant proportion of the criminal offences committed in this State, either as a result of users acting under their influence or because of the need to finance or secure a supply of drugs. There are often strong financial incentives to deal in prohibited drugs. Further, significant public resources are devoted to the difficult task of detecting and apprehending persons involved in the supply and distribution of illicit drugs. It is for these reasons that in sentencing for offences under s 6(1) of the Act, significant weight is given to general deterrence with the consequence that mitigating circumstances personal to the offender, including age and good character, are accorded less weight.
[29] The State of Western Australia v Johnson [2010] WASCA 187 [17].
The appellant's offending had many serious elements:
(1)He committed seven offences, six of which have a maximum penalty of 25 years' imprisonment.[30]
(2)The offences were committed on five separate occasions, spanning a period of almost four months.
(3)His offences involved more than 200 g of methylamphetamine and more than 185 g of heroin.
(4)The drugs possessed by the appellant were of a high purity, reflecting the appellant's position towards the upper end of the hierarchy.
(5)The appellant possessed, at his home, all the usual paraphernalia associated with a drug dealing business. Further, the appellant was in possession of large amounts of cash. The judge found that the vast majority of the cash was the proceeds of the appellant's drug dealing.
(6)The judge's characterisation of the appellant as a professional drug dealer for commercial gain was amply justified.
(7)The appellant's commission of the offences the subject of the 2016 indictment while he was on bail for counts 3 and 4 of the 2015 indictment was rightly characterised by the sentencing judge as a serious aggravating factor.
(8)For all the reasons given by the sentencing judge, personal deterrence loomed large in sentencing the appellant.
[30] Section 34(1)(aa) of the Misuse of Drugs Act 1984 (WA).
There is no merit in the appellant's assertion that the failure to order some concurrency between the two offences the subject of the 2016 indictment reveals implied error. The question of whether the sentences for those two offences should have been wholly cumulative should not be viewed in isolation. Rather, the question of totality directs attention to the overall criminality of all of the offences committed by the offender, viewed in their entirety. The offences, the subject of the 2015 indictment, were themselves serious and could have justified a total effective term of imprisonment substantially more than 2 years 6 months.
The question for this court is not whether it was open to the judge to have ordered partial concurrency of the two offences on the 2016 indictment so as to produce a lesser total effective sentence, nor whether we would have so ordered. The appellant must establish that not to have done so reveals implied error. In other words, the result must be unreasonable or plainly unjust, so that the appellate court is driven to conclude that there has been some misapplication of principle. The appellant's submissions fall well short of establishing that.
Taking into account:
(1)the facts and circumstances of the appellant's offences, considered as a whole, including the serious features referred to in [33] above;
(2)the maximum penalties for the appellant's offences;
(3)the appellant's personal circumstances;
(4)all relevant sentencing factors; and
(5)to the extent that they provide assistance, the total effective sentences imposed in reasonably comparable cases;[31]
it cannot be said, and it is not reasonably arguable, that the total effective sentence imposed on the appellant reveals implied error. The sentence of 10 years 6 months' imprisonment bears a proper relationship to the overall criminality involved in the appellant's offending, viewed in its circumstances as a whole, and taking into account his personal circumstances. It reflects a sound exercise of discretion. Thus, error cannot be inferred from the outcome.
[31] See, for example, Oziewicz v The State of Western Australia [2018] WASCA 81 and Nguyen v The State of Western Australia [2017] WASCA 35 and the cases referred to in those cases.
For these reasons, we would refuse leave to appeal on the sole ground of appeal.
Conclusion
For these reasons we would make the following orders:
1. Leave to appeal on the sole ground be refused.
2. 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 THE HONOURABLE JUSTICE BEECH12 OCTOBER 2018
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