Wickham v The State of Western Australia - [2010] WASCA 73

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WICKHAM -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 73

CORAM: McLURE P
OWEN JA
JENKINS J

HEARD: 24 MARCH 2010

DELIVERED : 28 APRIL 2010

FILE NO/S: CACR 139 of 2009

BETWEEN: JASON WICKHAM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :SLEIGHT DCJ
File No  :IND 198 of 2009, IND 417 of 2009

Catchwords:

Criminal law - Appeal against sentence - Possession with intent to sell or supply ‑ Totality principle not infringed

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr P J Urquhart
Respondent: Mr G J Huggins

Solicitors:

Appellant: Philip Urquhart
Respondent: Director of Public Prosecutions (WA)

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

Borbil v The State of Western Australia [2007] WASCA 24
Bosworth v The State of Western Australia [2007] WASCA 144
Marker v The Queen [2002] WASCA 282
The State of Western Australia v BLM [2009] WASCA 88
The State of Western Australia v Higgins [2008] WASCA 157
The State of Western Australia v Wickham [2009] WASCA 137
Trang v The State of Western Australia [2010] WASCA 44

McLURE P: I agree with Jenkins J.
OWEN JA: I agree with Jenkins J.
JENKINS J: The appellant pleaded guilty to two counts of possession of MDMA with intent to sell or supply and one count of possession of methylamphetamine with intent to sell or supply. On 21 September 2009, he was sentenced to a total of 3 years 6 months' imprisonment and made eligible for parole. He appeals against his sentence.

Grounds for appeal

At the hearing of the appeal the appellant was granted leave to rely on the following ground of appeal:
1.The learned sentencing Judge erred in imposing a total effective sentence of 3 1/2 years imprisonment which infringed the totality principle, having regard to the overall criminality involved in the various offences viewed in their entirety and in all the circumstances of the case, including those referable to the Appellant personally.
Particulars
(a)the Appellant had entered fast track pleas of guilty;
(b)the Appellant had a drug habit at the time of the offending and was a 'user-dealer';
(c)the Appellant had made significant progress in his rehabilitation since pleading guilty; and
(d)sentencing authorities indicate that the total effective sentence imposed was above the range commonly imposed for like offending, particularly when regard is had to the minimum custodial periods of sentences established by that range.

Background

On 24 February 2009 the appellant pleaded guilty in the District Court to three charges contained in two indictments. Indictment 198 of 2009 (the first indictment) contained one count which alleged that on 3 May 2008 the appellant possessed MDMA with intent to sell or supply. Indictment 417 of 2009 (the second indictment) contained two charges. The first charge alleged that on 15 July 2008 the appellant possessed MDMA with intent to sell or supply and the second charge

alleged that on the same date and at the same place the appellant possessed methylamphetamine with the intent to sell or supply.

On the same date the appellant was sentenced on the first indictment to 12 months' imprisonment, on count 1 on the second indictment to 2 years' imprisonment and on count 2 on the same indictment to 12 months' imprisonment. The sentencing judge ordered that the two sentences on the second indictment be served cumulatively on one another and cumulatively on the sentence on the first indictment, making a total of 4 years' imprisonment. The sentencing judge then suspended the sentence for a period of two years.
The respondent appealed the sentence and this court allowed the appeal on 21 July 2009: The State of Western Australia v Wickham [2009] WASCA 137. The charges were remitted to the District Court to be dealt with by a different judge according to law.
In determining the State's appeal against the sentence, this court found that an error had occurred because the sentencing judge had failed to make a finding about the appellant's intent in relation to the quantity of methylamphetamine the subject of count 2 on the second indictment. The court found that such a finding was required, as an assertion had been made by counsel for the appellant that that quantity was partly for his personal use and partly for supply to his friends. The court held that the sentence in relation to count 2 on the second indictment was 'integral to the overall sentence imposed' and 'integral to the decision to suspend the sentences of imprisonment' [31] ‑ [32].
On 11 September 2009, Sleight DCJ presided over a trial of issues. On 21 September his Honour found that he was satisfied that the only reasonable inference from the evidence was that the appellant was involved in the sale of methylamphetamine. However, his Honour found that 'the bulk' of the 5.26 g of methylamphetamine, the subject of count 2 on the second indictment, was for the appellant's personal use and the balance he intended to sell or supply to others. His Honour found that the amount the appellant would sell or supply would depend on how much he had left over from his own use and what opportunities arose for sale or supply. These were the bases on which the appellant was sentenced. There is no appeal from his Honour's findings.
The remaining facts of the charges can be set out shortly as follows.

The first indictment

On 3 May 2008, police stopped the appellant's car, which he was driving, and searched it. Inside it they located a clipseal bag containing 22 blue MDMA tablets weighing 6.19 g with a purity of 28% and a sunglasses case containing $550, in $50 notes.
Later the same day, the police searched the appellant's home and found a 600 g container of a common cutting agent (MSN), drug related storage devices, a mixing bowl containing traces of MSN, a notepad containing information indicative of drug dealing and $2,600 in cash.

The second indictment

On 15 July 2008, the police executed a search warrant at the appellant's then residence. They located a locked safe in the appellant's bedroom. The police located inside it a clipseal bag containing 69 MDMA tablets weighing approximately 14 g with a purity of 34% (count 1); a clipseal bag containing methylamphetamine weighing 5.26 g with a purity of 17% (count 2); a set of digital scales and two notes containing information indicative of drug dealing.

Sentencing

The sentencing judge delivered comprehensive sentencing remarks. His Honour referred to the appellant's pleas of guilty and the facts which he had summarised in his earlier reasons for decision on the trial of issues. His Honour said that he accepted that the appellant's offending occurred in the context of him developing a drug habit after moving to Perth and suffering the trauma of finding the body of his best friend who had committed suicide. His Honour also accepted that the appellant became a user/dealer who sold ecstasy and methylamphetamine to finance his own drug habit.
His Honour acknowledged the aggravating factor being that the offences on the second indictment were committed whilst the appellant was on bail for the offence on the first indictment. During the same period of bail the appellant had been convicted of two offences of possession of drugs. The appellant was 30 years of age, came from a supportive family and had been in steady employment; although he had had some then recent unemployment.
The appellant had had custody of his son since 2000 but from September 2007 his son had been living with the appellant's parents in country Western Australia. The appellant had returned to Perth to seek employment. He remained in Perth until the commission of these offences. After his second arrest he had returned to the country to be with his son, who was then 8 years of age. He had stopped using illicit drugs and resumed a law abiding lifestyle. His Honour said that he would give some weight to the appellant's responsibility for his son.
His Honour referred to the appellant's record of convictions which until August 2007 consisted of traffic matters. After that there were convictions related to his drug use and other offences of possession of stolen goods and possession of ammunition.
His Honour then referred to the general principles of sentencing offenders for trafficking in ecstasy and methylamphetamine being that they are serious offences, that the major consideration is personal and general deterrence and that personal circumstances carry less weight. His Honour noted that it was wrong for him to focus on the quantity of drugs involved and it was also necessary for him to consider the appellant's knowledge of the type and amount of drugs he was dealing in and the nature and level of his participation in the distribution of drugs. His Honour concluded that the amount of drugs involved was 'relatively moderate' but that the appellant was 'actively involved' in selling ecstasy and methylamphetamine in order to finance his drug habit.
The sentencing judge referred to Bosworth v The State of Western Australia [2007] WASCA 144 where Miller AJA 'indicated that cases involving methylamphetamine between 3 g and 65 g normally attract penalties within a range of 2 to 5 years'. His Honour acknowledged that some caution must be exercised in relying on this range and that each case must be dealt with on its merits.
His Honour approached sentencing as if he was sentencing the appellant on the first occasion. His Honour did not allow the appellant any discount for the fact that he was facing sentencing for a second time after a State appeal. However, he took into account that for the period since the first sentence was imposed the appellant had taken considerable steps to rehabilitate himself and had suffered because he had to await the outcome of a second sentencing process.
His Honour decided that the only appropriate sentence was an immediate term of imprisonment. He gave the appellant a discount of one‑third for his early plea of guilty and said that he took into account that, prior to the repeal of the transitional provisions, the appellant would have been entitled to a further one‑third discount. The sentencing judge said that appropriate sentences were 12 months' imprisonment on the one count in the first indictment, 2 years' imprisonment for count 1 in the second indictment and 12 months' imprisonment on count 2 in the same indictment. His Honour said that, because of the totality principle, he had decided to reduce the sentence on count 2 in the second indictment to a sentence of 6 months' imprisonment and order that sentence to be served cumulatively on the sentence imposed on count 1 of the same indictment. He then ordered that the resulting sentence of 2 years 6 months' imprisonment be served cumulatively on the sentence imposed for the offence in the first indictment; making a total sentence of 3 years 6 months' imprisonment. The appellant was made eligible for parole.

Discussion

The appellant submits that a proper consideration of the totality principle ought to have led to the term of imprisonment imposed for count 2 on the second indictment being made wholly concurrent with the sentence imposed for count 1 on the same indictment.
The appellant concedes that simply because the two quantities of drugs were found in the one safe on the one day does not mean that the offences fell within the 'one transaction' rule: Borbil v The State of Western Australia [2007] WASCA 24 [88] ‑ [89]. The appellant contrasts the statement in Borbil with Trang v The State of Western Australia [2010] WASCA 44. However the comments made in Trang about the 'one transaction' rule were, as their Honours in Trang acknowledged, peculiar to the facts of that case and nothing that was said contradicted the general principle enunciated in Borbil. Thus, the appellant's only contention is that the sentence imposed on him infringed the first limb of the totality principle. This being that the total sentence imposed for two or more sentences must not be disproportionate to the offender's overall criminality.
In reference to his criminality, the appellant relies on the judge's findings after the trial of issues where his Honour said:
In relation to the five grams of methylamphetamines found in Mr Wickham's possession on 15 July 2008, I am not satisfied on the balance of probabilities that, aside from what he used personally, his intention was to supply a portion to friends only. However, given the relatively small quantity of the drug, I am not satisfied beyond reasonable doubt that the accused, Mr Wickham, had formed a fixed intention to sell any portion of the drug.
Accordingly, I conclude that a portion of the drug was for his own personal use. In fact, given his addiction and the quantity, I'm satisfied the bulk was for his personal use, and the balance he intended to sell or supply to others.
As to whether he sold or supplied the drug to others would depend upon how much he had left over and what opportunities arose. Likewise, the portion he used for himself and the portion that might have been left over for the sale or supply was flexible. It's on the basis of those findings that Mr Wickham will be sentenced. (ts 117B-D).
The appellant draws from these findings some comfort which, to my mind, is not available. The conclusions were drawn after the sentencing judge had found that the appellant was not a credible witness (ts 116A), that he did not accept the appellant's evidence that he did not sell methylamphetamine and that he did not accept the appellant's evidence that the notes found in his room did not relate to the sale of drugs. These findings reflected adversely on the extent to which the appellant's pleas of guilty indicated acceptance of responsibility for his offending.
His Honour's conclusions also have to be read in the context of his Honour's earlier reference to Marker v The Queen [2002] WASCA 282 where Anderson J said:
I would not accept that a finding must always be made, even in user dealer cases, as to how much of the prohibited drug found in the defendant's possession was intended for own use and how much was intended for sale or supply. In many cases, it would be a wholly unreal exercise because the user dealer will rarely have a firm intention beyond perhaps an intention to use some and sell some. How much to sell and how much to consume will depend on his fluctuating needs (on the one hand for money and on the other to satisfy his craving for the drug) and on the business opportunities that might arise to on‑sell the drug at the right price [74].
His Honour had earlier said that these observations were applicable to this case. I read his Honour's findings about the appellant's intention in relation to the 5 g of methylamphetamine as simply being an acknowledgment that as the appellant was a user/dealer, his Honour could only make a firm finding that the appellant intended to use the bulk of it himself and sell or supply some of it. Beyond that, his Honour thought it would be speculative to say how much of the 5 g the appellant intended to sell or supply. Those conclusions are consistent with a finding that the appellant was a user/dealer of methylamphetamine, as well as a dealer in MDMA. This was a position that the appellant had denied. He had acknowledged that he was a user of amphetamine and a dealer of MDMA, only. Thus, I do not read the sentencing judge's findings and comments as being mitigatory.
In any event, the appellant submits that in view of his demonstrated capacity to rehabilitate himself, a total effective sentence of 3 years was all that was required to satisfy the relevant sentencing objectives, including punishment, retribution and deterrence.
It is not sufficient in order to succeed on appeal to demonstrate that a different sentence might have been imposed. This court will only interfere where the total effective sentence is disproportionate to the offender's criminality viewed as a whole.
The appellant notes that the sentence of 3 years 6 months' imprisonment was equivalent to a sentence of 5 years 3 months' imprisonment prior to the enactment of the transitional provisions. He submits that the sentencing range during the currency of the transitional provisions for quantities of methylamphetamine between 3 g and 65 g ranged from between 2 years and 5 years' imprisonment: Bosworth v The State of Western Australia [41]. The range is also relevant to cases involving the same amounts of MDMA: The State of Western Australia v Higgins [2008] WASCA 157 [121].
In Bosworth, Miller AJA said that the cases indicated that the general range of sentences for possession of quantities of methylamphetamine between 3 g and 65 g is between 2 years and 5 years. In determining the range his Honour adjusted pre‑transitional sentences by reducing them by one‑third so that they equated to post‑transitional sentences. Thus, the range indicated by Miller AJA was a post‑transitional range. That range is directly relevant to the sentence imposed on the appellant without making any adjustment. This is because when the appellant was sentenced, his Honour took into account that the minimum custodial period of the sentence he imposed should be comparable to the minimum custodial period that the appellant would have been required to serve if sentenced when the transitional provisions were in force: The State of Western Australia v BLM [2009] WASCA 88 [7]. A comparison of the minimum custodial periods for the range of sentences in Bosworth against the appellant's minimum custodial period reveals that his Honour ensured that the appellant's sentence complied with this requirement. The minimum custodial periods of the range in Bosworth were 12 months to 3 years' imprisonment. The appellant's minimum custodial period is 21 months' imprisonment.
The appellant's total sentence of 3 years 6 months' imprisonment is clearly within the range indicated in Bosworth, even though Miller AJA primarily considered sentences imposed in respect to single occasions on which an offender had been found in possession of drugs with an intention to sell or supply them. The appellant faced the aggravating circumstance of three counts committed on two separate occasions. A total sentence of 2 years 6 months' imprisonment on the second indictment was well within the range mentioned by Miller AJA. A further 12‑month sentence of imprisonment in respect of the appellant's first offence recognised that it was a discrete offence committed on an earlier occasion.
Having regard to the standards of sentencing for offences of these types as disclosed in many cases, of which Bosworth is but one, the appellant has failed to show that the total effective sentence of 3 years 6 months' imprisonment infringed the totality principle. I would refuse leave to appeal on the sole ground and dismiss the appeal.