Wade v The State of Western Australia

[2022] WASCA 68

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   WADE -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 68

CORAM:   BUSS P

MITCHELL JA

HEARD:   15 JUNE 2022

DELIVERED          :   21 JUNE 2022

FILE NO/S:   CACR 23 of 2022

BETWEEN:   RYAN ADAM WADE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   BOWDEN DCJ

File Number            :   IND 1584 of 2021

Catchwords:

Criminal law - Drug offences - Sentencing - Possession of 9.71 g of methylamphetamine with intent to sell or supply it to another - Possession of $112,750 cash reasonably suspected of being unlawfully obtained - Whether sentence imposed for possession of methylamphetamine with intent is manifestly excessive - Whether total effective sentence infringes the first limb of the totality principle

Legislation:

Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Result:

Leave to appeal refused
Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant	:	J S Yeap
Respondent	:	No appearance

Solicitors:

Appellant	:	Tang Law
Respondent	:	Director of Public Prosecutions (WA)

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

Croxford v The State of Western Australia [2021] WASCA 159

Haasy v The State of Western Australia [2010] WASCA 207

Kabambi v The State of Western Australia [2019] WASCA 44

Nguyen v The State of Western Australia [2019] WASCA 56

Pearman v The State of Western Australia [2021] WASCA 106

JUDGMENT OF THE COURT:

Summary

1. The appellant appeals against the sentences imposed on the following two counts on the same indictment:

   1.Possession of a prohibited drug (namely a total of 9.71 g of methylamphetamine) with intent to sell or supply it to another; contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).

   2.Possession of $112,750 that was reasonably suspected of having been unlawfully obtained; contrary to s 417(1) of the Criminal Code (WA).

2. The appellant received a sentence of 2 years 3 months' immediate imprisonment on count 1, and a sentence of 15 months' immediate imprisonment on count 2.  The sentences were ordered to be served cumulatively, resulting in a total effective sentence of 3 years 6 months' immediate imprisonment.  The appellant was made eligible for parole.  The sentence was backdated to 22 February 2022 to take account of time spent in custody on remand.

3. The appellant now appeals against his sentences on two grounds.  Ground 1 contends that the sentence for count 1 was manifestly excessive.  Ground 2 contends that the total effective sentence of 3 years 6 months' immediate imprisonment infringes the first limb of the totality principle.

4. For the following reasons, neither ground of appeal has any reasonable prospect of succeeding.  Leave to appeal should be refused on both grounds and the appeal should be dismissed.

Circumstances of offending

1. At 6.45 am on 26 August 2020, police executed a search warrant at the appellant's Kewdale residence, at which his brother and partner were also present.  During the search, police located:

   1.$2,000 cash wrapped in an elastic band and 2.99 g of methylamphetamine, both found in a black bag in the lounge room;

   2.0.43 g of methylamphetamine in a rear room of the house; and

   3.6.29 g of methylamphetamine and $110,750 in cash stored in cryovac packages in a large black protein container buried under pavers in the backyard.

   The total quantity of methylamphetamine seized was 9.71 g.  The total amount of cash seized was $112,750.

2. An encrypted cypher mobile phone was located in the lounge room.  Smoking implements, a cryovac machine and associated packaging were found in the rear room. 

3. The appellant admitted that the items found inside the house, other than the mobile phone, were his.

4. The appellant was going to use some of the 9.71 g of methylamphetamine, share some with other people and sell some of that methylamphetamine.  The appellant was 'warehousing' the money found in the backyard, which was destined for other people.  The appellant was not sentenced on the basis that the money was the proceeds of his own sale of methylamphetamine.

Personal circumstances

1. The appellant was 31 years old at the time of sentencing.  He had a dysfunctional childhood after his father committed suicide when the appellant was very young.  His mother subsequently lived an unsettled nomadic lifestyle.  The appellant lived between his mother's care and foster care from the age of 6 months.  He left school in year 8 and started living by himself in a caravan park at the age of 13 years.

2. The appellant completed an apprenticeship in the ceiling and wall fixing industry, which he commenced at the age of 17 years.  He completed a certificate in business management at the age of 22 years.  The appellant had a good history of full-time employment and had been in a stable relationship for about 3 years prior to sentencing.

3. The appellant had used methylamphetamine sporadically from a relatively young age, and at times consumed up to 1.7 g of methylamphetamine per day.  He had a significant prior criminal record.  It included convictions for possession of cannabis and methylamphetamine with intent to sell or supply it to another, and possession of cash reasonably suspected of being unlawfully obtained, in 2018.  The appellant was sentenced to a total effective sentence of 1 year 10 months' immediate imprisonment in respect of those offences.

Sentencing judge's approach

1. The sentencing judge allowed a discount under s 9AA of the Sentencing Act 1995 (WA) of 20% in respect of count 1, and 25% in respect of count 2.

2. After referring to the circumstances of the offences and the appellant's personal circumstances, the sentencing judge noted the significance of personal and general deterrence as sentencing considerations for this kind of offending. The judge noted that the appellant conceded that a term of imprisonment was the only appropriate disposition. His Honour then imposed the individual sentences referred to at [2] above. In ordering that the sentences be served cumulatively, the sentencing judge observed:[1]

   The total sentence should be no more than is necessary to achieve the aims that I've referred to, but must also adequately reflect the criminality displayed in the offending and bearing in mind your personal circumstances.

   [1] Sentencing ts 30.

General principles

1. The general principles governing appeals on the ground of manifest excess and breach of the first limb of the totality principle are well established.  They were summarised in Kabambi v The State of Western Australia.[2] 

   [2] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

2. The general principles for sentencing for offences against s 6(1)(a) of the Misuse of Drugs Act are also well established.  As the court noted in Nguyen v The State of Western Australia:[3]

   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 organisation, 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.

   [3] Nguyen v The State of Western Australia [2019] WASCA 56 [22].

Disposition

1. There is no merit in the appellant's contention that the sentence of 2 years 3 months' immediate imprisonment in respect of count 1 was manifestly excessive.  The individual sentence represents only 9% of the available maximum term of imprisonment.  The only significant mitigating factors were the appellant's plea of guilty and his deprived childhood.  His serious criminal record showed that he was not of prior good character, and prior convictions for similar offences elevated the significance of personal deterrence as a sentencing consideration. 

2. Further, the sentence imposed on the appellant is broadly consistent with customary sentencing standards for drug offences of the present kind.  The appellant's written submissions refer to only two prior decisions of this court: Croxford v The State of Western Australia,[4] and Pearman v The State of Western Australia.[5]  Croxford, in which this court resentenced the offender to 8 months' immediate imprisonment, is distinguishable by reason of the very different circumstances of the offence and the offender (who suffered from an acquired brain injury).  The sentence of 2 years 4 months' immediate imprisonment upheld in Pearman, and the range of sentences imposed in cases referred to in Pearman, is broadly consistent with the individual sentence for count 1 in the present case.  In any event, manifest excess is not demonstrated by making a close comparison of the circumstances in one or two other cases.

   [4] Croxford v The State of Western Australia [2021] WASCA 159.

   [5] Pearman v The State of Western Australia [2021] WASCA 106.

3. In oral submissions, counsel for the appellant also referred to the decision of this court in Haasy v The State of Western Australia.[6]  In that case the offender pleaded guilty to 3 counts of possession of methylamphetamine with intent to sell or supply it to another.  Significantly, the purity of the drug was very low (2% - 10%), the offender was only 25 years old, he had no previous convictions of possession of a prohibited drug with intent to sell or supply it to another and there was no evidence to suggest that the offender was making any profit by way of dealing beyond what he required to support his habit and repay his drug debts.  The individual sentence imposed by this court on resentencing for count 2 in Haasy, which concerned 9.54 g of methylamphetamine with a purity of only 5%, was 2 years 3 months' immediate imprisonment.  There is nothing in the decision in Haasy which suggests that the individual sentence imposed on the appellant for count 1 in this matter was manifestly excessive.

   [6] Haasy v The State of Western Australia [2010] WASCA 207.

4. Nor is there any merit in the contention that the decision to make the sentence for count 2 cumulative upon the sentence for count 1 is unreasonable or plainly unjust.  While the offences were detected at the same time, the possession of the methylamphetamine concerned a separate criminal activity to the possession of the cash.  The appellant was in possession of the methylamphetamine for the purpose of using and distributing the drug.  He was sentenced on the basis that the money buried in his backyard was not his and was not the product of his drug dealing.  Rather, the appellant was storing money reasonably suspected of being the result of drug distribution by other persons.  The amount being stored was over $110,000.  Given the qualitatively different nature and order of the criminality involved in the two offences, at least some accumulation of the sentences was appropriate.

5. Counsel for the appellant sought to rely on the decision in Haasy in support of her totality argument.  That decision does not assist in the determination of ground 2, as the case did not concern the possession of a large quantity of cash reasonably suspected of having been unlawfully obtained in addition to drug possession offences.

6. Having regard to:

   1.the maximum penalties for the appellant's offences;

   2.the overall criminality involved in the commission of those offences viewed in their entirety;

   3.the aggravating and mitigating circumstances (including the pleas of guilty); and

   4.all relevant sentencing factors (including the imperative to provide general deterrence and proper punishment),

   a total effective sentence of 3 years 6 months' immediate imprisonment bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances (including those referable to the appellant personally).

7. The total effective sentence of 3 years 6 months' immediate imprisonment did not infringe the first limb of the totality principle.  It was not unreasonable or plainly unjust.  Inferred error has not even arguably been established.

Orders

1. For the above reasons, neither ground of appeal has any reasonable prospect of succeeding.  The appropriate orders are:

   1.Leave to appeal is refused on both grounds of appeal.

   2.The appeal is dismissed.

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

JB

Associate to the Honourable Justice Mitchell

21 JUNE 2022