Trang v The State of Western Australia
[2010] WASCA 44
•9 MARCH 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TRANG -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 44
CORAM: OWEN JA
WHEELER JA
NEWNES JA
HEARD: 4 FEBRUARY 2010
DELIVERED : 9 MARCH 2010
FILE NO/S: CACR 111 of 2009
BETWEEN: PHUOC DAT TRANG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GROVES DCJ
File No :IND 1031 of 2009
Catchwords:
Criminal law - Sentencing - One count of possession of heroin with intent to sell or supply (4.73 g) - Two counts of possession of heroin, one of possession of methylamphetamine, one of possession of MDMA and one of possession of cash reasonably suspected of having been obtained unlawfully - Whether sentence of 4 years' imprisonment offended totality principle
Legislation:
Nil
Result:
Appeal allowed
Sentences set aside
Appellant resentenced to total term of 3 years and 4 months' imprisonment
Category: D
Representation:
Counsel:
Appellant: Mr S Vandongen
Respondent: Mr D Dempster
Solicitors:
Appellant: Andrew Maughan & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bellissimo v The Queen (1996) 84 A Crim R 465
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Garrett v The State of Western Australia [2006] WASCA 279
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Sinagra‑Brisca v The Queen [2004] WASCA 68
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
OWEN & WHEELER JJA: This is an appeal against sentences imposed by a District Court Judge on 6 August 2009. The appellant pleaded guilty to one count of possession of a prohibited drug with intent to sell or supply and five counts of possession of various prohibited drugs and unlawfully gained property. He was sentenced to a total of 4 years' immediate imprisonment.
Background
The appellant entered a fast track plea of guilty to one count on an indictment; namely, possession of heroin with intent to sell or supply. He also pleaded guilty to five charges set out in a notice under s 32 of the Sentencing Act 1995 (WA); namely, two counts of possessing heroin, one count of possessing methylamphetamine, one count of possessing MDMA and one count of possessing cash ($1,720) reasonably suspected of having been obtained unlawfully. The relevant facts for each of the charges are as follows.
At about 12.30 pm on 1 November 2008, police officers stopped a car in which the appellant was a passenger. The car was searched and next to the appellant on the rear seat the police found a crate which had a towel and pillowcase on the bottom and a young puppy sitting in it. The crate was also found to contain a small package of white coloured powder, discovered to be heroin (the sole count on the indictment). The package contained 4.73 grams of heroin with a purity of 51%. The appellant admitted to purchasing 15 grams of heroin two days earlier.
At the same time the police also found a mobile phone containing messages relating to the sale of prohibited drugs. They also found on the appellant's person $1,720 in cash. It appears the cash was from the sale of heroin (charge 15027 in the s 32 notice).
At about 2.55 pm on 14 October 2008 police executed a search warrant at some residential premises. In a rear bedroom where the appellant had been sleeping police officers discovered 0.46 grams of heroin (charge 14211 in the s 32 notice) and 11 MDMA tablets weighing approximately 2.49 grams (charge 14212 in the s 32 notice).
At 2.50 pm on 29 October 2008 the appellant's car was stopped and searched in a car park. Police discovered two plastic bags containing approximately 1.95 grams and 0.7 grams of methylamphetamine (charge 68394 in the s 32 notice) and a plastic bag containing approximately 3.9 grams of heroin in the vehicle (charge 68395 in the s 32 notice).
The sentencing remarks and the sentence
The sentencing judge commenced by noting the seriousness of offences involving the sale or supply of drugs. His Honour then turned to the personal circumstances of the appellant. He was then aged 38 years, had a significant entrenched drug use habit, admitted to having previously been a heroin dealer (apparently to pay off drug debts), and still had considerable drug debts. The appellant had a court history comprising a variety of offences, including convictions for possession of illicit substances and heroin.
The sentencing judge referred to the pre‑sentence report and noted that the appellant had come to Australia under refugee status and had had minimal employment. From this his Honour inferred that the appellant had supported himself by participating in the drug trade. Further, the author of the pre‑sentence report said that the appellant had shown a lack of responsibility and had little remorse for the offences he had committed. His Honour then noted that the appellant had pleaded guilty to the charges at the earliest possible opportunity and referred to character references provided by the appellant's partner and a man for whom the appellant had worked for a short period. The sentencing judge then made the following points about the appellant and the offences:
1.The appellant was a 'user-dealer' of drugs and had sold drugs to support his own habit and to support a lifestyle that avoided any other form of remunerative work. His role was that of 'user‑dealer'.
2.The offences were committed on three separate occasions. Some were committed after he had been charged with earlier offences.
3.Each sentence had been reduced for the appellant's early pleas of guilty and other mitigating circumstances (minimal though they were).
4.A significant portion of the drugs the subject of the count on the indictment (possession with intent to sell or supply) may have been for the appellant's own use.
In relation to the overall sentence that was to be imposed, the sentencing judge made this comment:
Each separate occasion was a different transaction and so there will be some cumulation of sentences, and to accommodate the totality principle some sentences will be made to be served concurrently.
His Honour then proceeded to announce the sentences for each of the charges. The total sentence imposed was 4 years' immediate imprisonment, made up as set out in the table which follows. The sentence was backdated to commence on 31 July 2009 and the appellant was made eligible for parole.
| Count 1 on the indictment | Possessing 4.73 grams (51% pure) of heroin with intent to sell or supply | Guilty | 2 years (head sentence) |
| Summary – section 32 notice | |||
| Charge 14211 | Possessing 0.46 grams of heroin | Guilty | 8 months - cumulative |
| Charge 14212 | Possessing MDMA (11 tablets, 2.49 grams) | Guilty | 8 months - concurrent |
| Charge 15027 | Possessing $1720 cash, suspected of being unlawfully obtained | Guilty | 8 months - concurrent |
| Charge 68394 | Possessing 2.65 grams of methylamphetamine | Guilty | 16 months - concurrent |
| Charge 68395 | Possessing 3.9 grams of heroin | Guilty | 16 months -cumulative |
Ground of appeal
The single ground of appeal, as drafted in the appellant's case and in respect of which leave to appeal had previously been granted, was as follows:
1.The learned sentencing judge erred in the exercise of his sentencing discretion by imposing a sentence that was manifestly excessive in all the circumstances, including the offending conduct viewed as a whole and with insufficient regard to matters personal to the appellant.
Particulars
1.1The appellant was a 38 year old who came to Australia as a refugee facing language difficulties and lack of training.
1.2The appellant was in a stable relationship and acted as father-figure for the 7 month old child of his partner.
1.3The appellant has a significant entrenched drug habit.
1.4The appellant had taken steps to commence rehabilitation.
1.5The appellant entered early pleas of guilty to the charges.
1.6Sentencing authorities suggest that the sentence imposed by the learned sentencing judge was above the range commonly imposed for like offending.
However, when the appeal came on for hearing counsel for the appellant advised the Court that the ground did not accurately reflect the true nature of appellant's complaint. The gravamen of the challenge was that the overall sentence of 4 years' imprisonment offended the first limb of the totality principle; namely that the 4 year term was disproportionate to the total criminality of the offending conduct. Counsel made it clear that the appellant was not:
(a)alleging any specific error of fact or law;
(b)challenging any of the individual sentences; or
(c)relying on the second limb of the totality principle (that the sentence was relevantly crushing).
It seems that the particulars encompass most of the circumstances that the appellant wishes the Court to consider in relation to the totality argument.
While it should not be necessary, we will take this opportunity to remind those participating in the appellate jurisdiction of the obvious principle that care needs to be taken to ensure that grounds of appeal are drafted to reflect the real import of the challenge. While the totality principle and a complaint of manifest excess have some elements in common, they serve different purposes. A challenge to the length of a total sentence for multiple offences that depends on an inference of implied error should be based on a breach of the totality principle. The manifest excess principle applies to a challenge, again usually alleging implied error, to an individual sentence: Garrett v The State of Western Australia [2006] WASCA 279 [11] (McLure JA).
Disposition of the appeal
In our view the sentencing judge was correct to conclude that apart from the early guilty pleas there were very few factors weighing in the appellant's favour. The appellant's offending conduct was undoubtedly serious even though he was a 'user‑dealer' and had obtained a portion of the drugs for his own use.
It is, we think, unnecessary to review the cases on which the appellant and the respondent relied in support of their respective contentions that the sentences imposed were outside or within the range of sentences commonly imposed for like offences. While not departing from what we have said about the need, when considering the totality principle, to concentrate on the overall term rather than the individual sentences, it cannot be said that the term of 2 years for the offence of possessing heroin with intent to sell or supply is in any way objectionable. It is necessary to bear that sentence in mind because it is the head sentence to which other terms were accumulated. It has to be borne in mind that the charges in the s 32 notice that relate to drugs were of simple possession. That is a less serious offence than possessing drugs with intent to sell or supply. The maximum penalty for the simple possession offences is 2 years' imprisonment. Bearing that in mind, the sentences of 16 months' imprisonment for simple possession of 3.9 grams of heroin and of 2.65 grams of methylamphetamine (following a fast track plea of guilty) is very high.
In the passage from the sentencing remarks that we have set out above his Honour indicated that he proposed to accumulate some of the terms because the offences were committed on separate occasions. He also indicated that he was aware of the need to look at the total sentence but that totality considerations would be accommodated by making some sentences concurrent. There is no indication that his Honour applied the other method that is sometimes utilised in adjusting sentences for the totality principle; namely, by reducing the length of an individual sentence below that which he would otherwise have imposed.
The drugs the subject of charges 14211 and 14212 were found in the same room during one search of the premises. The offending material the subject of charges 68394 and 68395 was found in the same car during the one search of the vehicle. Although they were different drugs, their relatively small quantities, the role they played in the appellant's business as a user-dealer and the timing and circumstances of their discovery leave open the application of the 'one transaction' principle. Accordingly, it would have been open for the sentencing judge to have applied the principle and, accordingly, to have made terms for the counts within each of the two sets of offences concurrent. The comment we have just made is peculiar to the facts of this case and we should not be taken as saying that different types of drugs found in the same location at the same time will, without more, render applicable the one transaction principle: see Sinagra‑Brisca v The Queen [2004] WASCA 68 [27] ‑ [30] (Wheeler JA). In this case, by making the effective terms of 8 months (charges 14211 and 14212) and 16 months (charges 68394 and 68395) each cumulative on the 2 year term for the count in the indictment there is little or no practical recognition of totality considerations in relation to those sentences. That being so, the use of concurrency to reflect the need to tailor an overall sentence that is proportionate to the criminality of the offending conduct is to be found largely in the 8 month term for charge 15027.
In our view, the order for accumulation of the terms for what we have described as the two sets of offences in the s 32 notice compels the inference that the sentencing judge gave insufficient attention to the overall sentence that he was imposing. The overall term does not reflect the distinction between the offences of possession with intent to sell or supply and the charges of simple possession laid against a person accepted by the sentencing judge as being one with an entrenched drug habit. Nor does it reflect the combined effect of the terms imposed for the various offences or sets of offences. We believe that it has resulted in an overall term that is disproportionate to the total criminality of the appellant's conduct. The ground of appeal has been made out.
Resentencing the appellant
It is unnecessary to repeat what has already been said in order to explain the sentences that we think should now be imposed. They are:
(a)for the single count on the indictment: 2 years' immediate imprisonment;
(b)for charge 68395 in the s 32 notice: 16 months' immediate imprisonment to be served cumulatively upon the 2 year term for the single count on the indictment;
(c)for charge 14211 in the s 32 notice: 8 months' immediate imprisonment to be served concurrently with all other terms;
(d)for charge 14212 in the s 32 notice: 8 months' immediate imprisonment to be served concurrently with all other terms;
(e)for charge 15027 in the s 32 notice: 8 months' immediate imprisonment to be served concurrently with all other terms; and
(f)for charge 68394 in the s 32 notice: 16 months' immediate imprisonment to be served concurrently with all other terms.
The total effective term is, therefore, immediate imprisonment for 3 years and 4 months backdated to commence on 31 July 2009. The appellant will be eligible for parole. This means that he will be required to serve 20 months before being considered for release on parole.
Conclusion
The appellant has already been granted leave to appeal. We would allow the appeal, set aside the sentences imposed by the sentencing judge and resentence the appellant in the manner set out in the preceding section.
NEWNES JA: On 31 July 2009, in the District Court, the appellant pleaded guilty, on a fast track plea, to one count of possession of heroin with intent to sell or supply and to five offences contained in a s 32 notice. He was sentenced to a total effective term of 4 years' imprisonment, with eligibility for parole.
On 6 October 2009, the appellant was granted leave to appeal on the ground contained within the appellant's case. That ground alleges that the total sentence was manifestly excessive. On the hearing of the appeal, counsel for the appellant advised that the complaint was that the total sentence was disproportionate to the overall offending.
Background
On 14 October 2008, police executed a search warrant at a house in a Perth suburb. A female associate of the appellant resides at the house. In a bedroom which the appellant used periodically, police found 0.46 g of heroin in a small clear plastic bag and 11 MDMA tablets weighing approximately 2.49 g in a small clipseal bag.
On 29 October 2008, police stopped a vehicle which was driving into the car park at the Burswood Casino. While searching the vehicle they located two clipseal bags containing approximately 1.95 g and 0.7 g of methylamphetamine respectively and one clipseal bag containing
approximately 3.9 g of heroin. The appellant told police that the vehicle was his.
On 12 November 2008, police stopped a car in which the appellant was a passenger. The car was searched and police found a vegetable crate which contained a towel and pillowcase and a very young puppy. A package wrapped in plastic and hidden under the towel was found to contain 4.73 g of heroin with a purity of 51%. The appellant told police that he had purchased about 15 g of heroin from an acquaintance two days previously.
The appellant was also found to have in his possession a mobile phone containing messages relating to the sale of prohibited drugs and to be in possession of $1,720 in cash. The appellant gave police conflicting accounts of how he came by the money.
The appellant subsequently entered a fast track plea of guilty to one count of possession of heroin with intent to sell or supply (4.73 g with 51% purity) and five charges contained in a notice under s 32 of the Sentencing Act 1995 (WA), those being two counts of possession of heroin, one count of possession of methylamphetamine, one count of possession of MDMA and one count of possession of cash reasonably suspected of having been obtained unlawfully.
Sentencing remarks
The sentencing judge had before him a pre‑sentence report which set out the appellant's background and personal history. The appellant was 38 years of age at the time of the offences. He had come to Australia in 1990 as a refugee. He had had minimal employment since his arrival and his Honour observed that from the appellant's history and criminal record it appeared that he had supported himself by selling and distributing drugs. The appellant had an entrenched drug habit and had used money derived from drug trafficking to support that habit. His Honour described the appellant as a 'user‑dealer', who sold drugs to support his own habit and to support a lifestyle that did not involve any other form of remunerative work.
The sentencing judge concluded that the appellant had not accepted responsibility for his actions and had shown little regret for his offending. His Honour noted that the appellant had failed to take up previous opportunities to deal with his drug problem and that even when the appellant had attended the interview for the pre‑sentence report he was under the influence of drugs. His Honour also noted that the appellant had prior convictions for possession of heroin, and for offences involving violence which the appellant had explained were committed on behalf of a drug dealer to pay off the appellant's drug debts.
His Honour took into account the appellant's early plea of guilty. He also noted that at the time of sentencing the appellant had been in a relationship with his partner for some time and had taken on a fatherly role for his partner's seven month old child, but his Honour pointed out that the personal circumstances of the appellant, and the personal references he had put before the court, were not of significant mitigatory weight in offences of this nature.
In relation to the count of possession of heroin with intent to sell or supply, his Honour accepted that a significant portion of the 4.73 g may have been for the appellant's own use.
The sentencing judge imposed a sentence of 2 years' imprisonment on the count of possession of heroin with intent to sell or supply. On the charges contained in the s 32 notice his Honour imposed the following sentences:
(a)possession of heroin (0.46 g), 8 months' imprisonment to be served cumulatively;
(b)possession of MDMA (11 tablets, 2.49 g), 8 months' imprisonment to be served concurrently;
(c)possession of $1,720 in cash reasonably suspected of being unlawfully obtained, 8 months' imprisonment to be served concurrently;
(d)possession of methylamphetamine (2.65 g), 16 months' imprisonment to be served concurrently;
(e)possession of heroin (3.9 g), 16 months' imprisonment to be served cumulatively.
The total effective sentence was therefore 4 years' imprisonment. It was backdated to commence on 31 July 2009 and the appellant was made eligible for parole.
The ground of appeal
The appellant relied on the following ground of appeal, for which leave to appeal had previously been granted:
1.The learned sentencing judge erred in the exercise of his sentencing discretion by imposing a sentence that was manifestly excessive in all the circumstances, including the offending conduct viewed as a whole and with insufficient regard to matters personal to the appellant.
Particulars
1.1The appellant was a 38 year old who came to Australia as a refugee facing language difficulties and lack of training.
1.2The appellant was in a stable relationship and acted as father‑figure for the 7 month old child of his partner.
1.3The appellant has a significant entrenched drug habit.
1.4The appellant had taken steps to commence rehabilitation.
1.5The appellant entered early pleas of guilty to the charges.
1.6Sentencing authorities suggest that the sentence imposed by the learned sentencing judge was above the range commonly imposed for like offending.
The appellant's submissions
On the hearing of the appeal, counsel for the appellant said the appeal was under the first limb of the totality principle, that is, that the total sentence was disproportionate to the overall criminality involved. It was not contended that the sentence was crushing. Nor was there any challenge to any individual sentence.
In argument, counsel for the appellant acknowledged, quite properly, that on the indictable offence the personal circumstances of the appellant, while not irrelevant, were not of great weight: see Bellissimo v The Queen (1996) 84 A Crim R 465; Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107. He suggested, however, that they were of greater weight in relation to the s 32 notice offences.
It was submitted that, having regard to the sentences customarily imposed for such offences, even if the appellant had been in possession of the total amount of the drugs involved in all of the offences (11.74 g) with intent to sell or supply, that would not have warranted a sentence of 4 years' imprisonment. In fact, most of the drugs were for the appellant's own use. The s 32 notice offences accounted for 7.01 g and the sentencing judge had accepted that a portion of the 4.73 g on the indictable offence were for the appellant's own use.
The s 32 notice offences were simple possession offences, even though some of the quantities were over the presumptive amount. The maximum penalty for those offences was 2 years' imprisonment. The sentence of 16 months' imprisonment on two of the offences was very severe. On the basis that there was a reduction of approximately 25% for the guilty plea, the sentence was near the top of the range for offences of this type. While it was an aggravating factor that the appellant had committed some of the offences while on bail, that simply reflected the fact that he was a hopeless addict.
When considered in the above light, the overall sentence of 4 years' imprisonment was disproportionate to the total criminality involved in the offending.
The disposition of the appeal
The only question on the appeal is whether the total effective sentence of 4 years' imprisonment for all of the offences was disproportionate to the overall offending. The appellant did not challenge any of the individual sentences, although, as I have mentioned, it was submitted that the sentences for at least two of the s 32 notice offences were very severe. Counsel for the State, while not endorsing that description, accepted that those sentences were high but argued that the total sentence of 4 years' imprisonment was not disproportionate.
It must be said at the outset that the appellant's offending was serious and his antecedents were not good. The appellant was convicted of six offences. The indictable offence is one of such seriousness that, exceptional cases apart, it will inevitably result in a term of immediate imprisonment: Bellissimo v The Queen (1996) 84 A Crim R 465. There were no exceptional circumstances in this case. And as the sentencing judge pointed out, the various offences were committed on three separate occasions and some were committed after the appellant had been charged with earlier offences and was on bail.
Apart from the appellant's plea of guilty, which the sentencing judge took into account, there was not a great deal by way of mitigation. The appellant was a drug user and it was accepted that part of the heroin the subject of the indictable offence was for his own use. He is a 'user/dealer' who, as the sentencing judge observed, has relied upon his drug dealing to support his own drug habit and to relieve him of the obligation of finding other paid work.
The appellant's age was not a mitigatory factor. He was 38 years of age at the time of the offending. While the appellant does not have any prior convictions for offences involving the sale or supply of drugs, his record is by no means unblemished. He has five prior convictions for drug offences, including a conviction for possession of heroin, and he has convictions for offences involving violence which he committed for a drug dealer as a form of payment for his own drug debts.
As the sentencing judge observed, it appeared from the pre‑sentence report that the appellant has a minimising attitude towards his offending. He does not accept responsibility for his actions and has shown little remorse. The appellant continued to use heroin after he was charged with these offences and presented at the interview for the pre‑sentence report while under the influence of heroin. It is evident too that the appellant persisted in dealing in drugs despite having been charged with some of these offences.
While the appellant says he has now engaged with the Next Step programme to address his drug problem, this has come at a very late stage. It appears from the pre‑sentence report that, despite his long involvement with drugs, he has previously evinced little inclination to attempt to overcome it. A parole order in 2006 was cancelled after the appellant recorded 10 positive urinalysis results, for a variety of illicit substances, from 13 supplied samples. He also failed to take up a drug programme to which he had been referred.
It is well‑established that in an appeal against sentence, an appellate court may not intervene simply because it would have exercised the sentencing discretion differently from the sentencing judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. It may intervene if there is a material error of fact or law. Error may be inferred if the result is unreasonable or unjust: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325.
The total effective term of 4 years' imprisonment is a heavy sentence but I am not persuaded that the sentencing judge was in error in imposing it. In the circumstances, I do not consider that the sentence can be said to be disproportionate to the appellant's overall offending.
Conclusion
I would dismiss the appeal.
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