Winder v The State of Western Australia
[2020] WASCA 30
•11 MARCH 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WINDER -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 30
CORAM: MAZZA JA
MITCHELL JA
VAUGHAN JA
HEARD: 18 FEBRUARY 2020
DELIVERED : 11 MARCH 2020
FILE NO/S: CACR 43 of 2019
BETWEEN: RAYMOND LIONEL DOUGLAS WINDER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BOWDEN DCJ
File Number : IND CAR 26 of 2018
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of 55 drug offences most of which were offering to sell or supply a prohibited drug - Offences committed while on bail for other drug-dealing offences - Whether the total effective sentence of 5 years' imprisonment infringed the first limb of the totality principle
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Representation:
Counsel:
| Appellant | : | P G Giudice |
| Respondent | : | J A Scholz |
Solicitors:
| Appellant | : | George Giudice Law Chambers |
| Respondent | : | The Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Angus v The State of Western Australia [2012] WASCA 54
Carlucci v The State of Western Australia [2019] WASCA 37
Ditri v The State of Western Australia [2006] WASCA 283
Moore v The State of Western Australia [2006] WASCA 121
Phillips v The State of Western Australia [2011] WASCA 69
Roffey v The State of Western Australia [2007] WASCA 246
Tirkot v The State of Western Australia [2018] WASCA 41
Wilson v The State of Western Australia [2010] WASCA 82
JUDGMENT OF THE COURT:
This is an appeal against sentence.
On 18 March 2019, the appellant was convicted on his pleas of guilty of 55 drug offences, being 46 counts of offering to sell or supply methylamphetamine to another, two counts of offering to sell or supply oxycodone to another, four counts of offering to sell or supply cannabis to another, one count of possession of methylamphetamine with intent to sell or supply it to another, one count of possession of oxycodone with intent to sell or supply it to another and one count of conspiracy to possess cannabis with intent to sell or supply it to another.[1] The appellant was sentenced to terms of imprisonment on each count.[2] The details of the individual offences and sentences are set out in the schedule to these reasons. The total effective sentence imposed upon the appellant was 5 years' imprisonment.[3] The appellant was made eligible for parole and the sentence was backdated to commence on 9 February 2019.[4]
[1] ts 5 - 6.
[2] ts 25 - 26.
[3] ts 26.
[4] ts 27.
The sole ground of appeal advanced by the appellant alleged that the total effective sentence infringed the first limb of the totality principle.[5]
[5] Another ground of appeal was abandoned at the hearing, appeal ts 2.
For the reasons which follow, the ground of appeal has not been made out and the appeal must be dismissed.
The facts
The appellant did not dispute, either at first instance or in this court, the facts of his offending, which were read to the sentencing judge by the State prosecutor. His Honour incorporated the facts as read to him into the sentencing remarks.[6] The facts may be summarised as follows.
[6] ts 6.
For a period of time prior to the execution of a search warrant at the appellant's home in East Carnarvon on 1 September 2018, police officers had been lawfully intercepting communications via the appellant's mobile telephone service.[7] These communications, which were comprised of telephone conversations and text messages, demonstrated that, during the period of offending covered in the indictment, the appellant was dealing in methylamphetamine, cannabis and oxycodone. Generally, the appellant received a text message or phone call from a customer requesting a quantity of drugs, and the appellant agreed to supply it to them. Frequently, the price was specified and agreed to in the communication itself.
[7] ts 6.
With respect to the offences of offering to sell or supply methylamphetamine, 12 offences (counts 7, 14, 20, 25, 27, 28, 31, 33, 46, 47, 48 and 52) concerned 0.1 g of the drug, 15 offences concerned an offer to sell or supply 0.2 g of the drug (counts 2, 8, 9, 13, 15, 18, 23, 24, 32, 36, 37, 43, 49, 50 and 53), one offence involved an offer to sell or supply between 0.1 and 0.2 g of the drug (count 51), two offences concerned offering to sell or supply 0.3 g of the drug (counts 3 and 12) and 14 counts concerned offering to sell or supply 0.5 g of the drug (counts 1, 4, 5, 6, 16, 17, 19, 21, 26, 34, 35, 42, 44 and 45).[8] The sums of money involved in these 14 offences varied from between $200 ‑ $250 up to $500. One count involved offering to sell or supply 1.0 g of methylamphetamine for $600 (count 39) and a further count involved an offer to sell or supply $350 worth of methylamphetamine (count 22). The four counts of offering to sell or supply cannabis (counts 22, 30, 40 and 41) did not specify any weight or value to the drug. The two counts of offering to sell or supply oxycodone involved only one tablet in each count (counts 10 and 11). The conspiracy to possess cannabis with intent to sell or supply involved 454 g of the drug (count 38). The possession of oxycodone with intent to sell or supply to another (count 55) concerned 4.07 g, consisting of 26 tablets, which police discovered on 1 September 2018 during the execution of the search warrant on the appellant's house. Count 54 on the indictment concerned possession of 6.0 g of methylamphetamine with a purity of 82%, which was discovered by police in a shirt hanging in the wardrobe of the appellant's bedroom on 1 September 2018. In the course of the search, in addition to the drugs we have mentioned, police located scales, clipseal bags and mobile telephones.[9]
[8] ts 21 - 22.
[9] ts 22.
The sentencing judge found that the appellant offered to sell or supply a total of approximately 11.9 g of methylamphetamine.[10] The offers to sell or supply the methylamphetamine, cannabis and oxycodone continued for a period between 9 June 2018 and 23 August 2018.[11] His Honour found that the appellant had the capacity to fulfil the offers that were made to sell or supply the illicit drugs. He described the quantities involved as 'typical of street‑level dealings'.[12]
[10] ts 24.
[11] Indictment, AB 30 - 34.
[12] ts 24.
His Honour accepted that at the time of the offences, the appellant was under financial stress arising from the pregnancy of his partner, accumulating debts for his own illicit drug use and the need to purchase more drugs.[13] His Honour found that the appellant's offending involved 'an element of commerciality'. The sentencing judge described the appellant as engaging in 'prolific [illicit drug] dealing over a relatively short period of time'.[14] It is accepted that the appellant's offending occurred while he was on bail for offences committed by him on 21 July 2017 of possession of 4.86 g of methylamphetamine with intent to sell or supply to another, 4.73 g of which ranged in purity from 79% ‑ 82%, and one count of possessing $770 in cash which was reasonably suspected to have been unlawfully obtained.[15]
[13] ts 23.
[14] ts 24.
[15] See transcript of sentencing proceedings before Sweeney DCJ, 24 June 2019, pages 19 ‑ 20. The appellant was sentenced to a total effective sentence of 4 months' imprisonment for these offences, to be served cumulatively upon the sentences imposed by Bowden DCJ.
Personal circumstances
The appellant was 26 years of age at the time of sentencing. The pre‑sentence and psychological reports revealed that the appellant had a disadvantaged upbringing. He never met his father, was subjected to unduly harsh discipline and witnessed a family member suffering abuse perpetrated by another member of the family. At a young age, he began to associate with older antisocial peers.
The appellant had a limited and disrupted education and has literacy difficulties. He has had only two short periods of employment.[16]
[16] Psychological report, page 3.
At the time he was sentenced, the appellant had been in a relationship with his partner for almost two years. She was pregnant with the appellant's child when he was arrested for the present offences. Unfortunately, not long after his arrest, she miscarried.[17]
[17] Psychological report, page 4.
The appellant has a long history of problematic substance abuse, most notably cannabis and methylamphetamine.[18]
[18] Psychological report, pages 4 - 5.
The appellant has a lengthy criminal history as an adult, including convictions for burglary, arson, being armed or pretending to be armed to cause fear, multiple traffic offences, disorderly conduct, common assault, stealing and multiple offences for possession of prohibited drugs and accompanying paraphernalia.[19]
[19] Criminal history, AB 64 ‑ 70.
While the appellant was in custody on remand, he has taken part in rehabilitative programs. The appellant has also indicated that he wishes to move away from Carnarvon with his partner when released.[20]
[20] ts 25.
The sentencing remarks
In his sentencing remarks, his Honour accepted defence counsel's submission that the appellant was not engaged in high‑level drug dealing. However, his Honour found that the appellant had engaged in persistent and prolific drug dealing over a relatively short period of time, and that he had been prepared to supply methylamphetamine, cannabis and oxycodone to 'what was obviously a willing market'.[21]
[21] ts 24.
His Honour accepted that it was important that there be 'no distortion' between a lower‑level distributor such as the appellant, who had engaged in a large number of transactions over a period of time, and higher‑level dealer caught with drugs on a single occasion.
His Honour identified as mitigating factors the appellant's age, the steps he had taken towards his rehabilitation and, most significantly, his pleas of guilty, for which his Honour gave a sentencing discount of 25% pursuant to s 9AA of the Sentencing Act.[22] It also appears, on a fair reading of the sentencing remarks, that his Honour had regard to the appellant's difficult childhood.[23]
[22] ts 22, 25.
[23] ts 23.
As to aggravating factors, his Honour referred to the fact that the offences were committed while the appellant was on bail for other alleged drug offences,[24] and that the offending was prolific, repeated and persistent.[25]
[24] ts 23.
[25] ts 25.
General principles applicable to sentencing appeals
The principles applicable to sentencing appeals are well‑established. They have been stated on many occasions by this court. One such example is in Wilson v The State of Western Australia.[26] We endorse the statement of principles set out in that case without repeating them.
[26] Wilson v The State of Western Australia [2010] WASCA 82 [2].
An alleged infringement of the totality principle is an allegation of implied error. The totality principle comprises two limbs. The appellant alleges an infringement only of the first limb. The first limb requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant circumstances including those referable to the appellant personally (including, for example, the desirability of accommodating any prospects of rehabilitation) and the total effective sentences imposed in comparable cases. The practical effect of the application of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at by merely adding up all of the terms appropriate for the individual sentences.[27]
[27] Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [26].
Sentencing for drug offences - general principles
The general principles of sentencing offenders for serious drug offences are also well‑established. They were recently described by this court in Carlucci v The State of Western Australia,[28] in these terms:
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 invariably be subsidiary considerations, but they are not irrelevant.
[28] Carlucci v The State of Western Australia [2019] WASCA 37 [37].
Submissions
The appellant's written submissions are very brief. They were supplemented, to some extent, by counsel's oral submissions. The appellant alleges that, having regard to the appellant's personal circumstances at the time of committing the offences, including that he was under severe financial pressure, the allegedly low level of the appellant's offending, the appellant's desire to change his life and his early plea of guilty, the total effective sentence infringed the first limb of the totality principle. Without reference to any comparable cases other than Carlucci, the appellant submitted that the total effective sentence imposed upon him was the kind of sentence commonly imposed for dealers engaged in a drug‑dealing business which involved dealing in 'ounces', whereas the appellant's drug dealing was nowhere near that level.[29]
[29] AB 8.
The State submitted that the appellant has not demonstrated an infringement of the first limb of the totality principle. The State submitted that Carlucci was not an apt comparator. It cited a number of cases involving offenders who had committed multiple offences of selling or supplying, or offering to sell or supply, prohibited drugs, such as Moore v The State of Western Australia;[30] Ditri v The State of Western Australia;[31] Phillips v The State of Western Australia[32] and Angus v The State of Western Australia,[33] the outcomes of which, it was said, point towards the total effective sentence imposed upon the appellant as falling within the range of a sound sentencing discretion.
[30] Moore v The State of Western Australia [2006] WASCA 121.
[31] Ditri v The State of Western Australia [2006] WASCA 283.
[32] Phillips v The State of Western Australia [2011] WASCA 69.
[33] Angus v The State of Western Australia [2012] WASCA 54.
Disposition
It is true that the appellant was not a high‑level drug dealer. He was not supplying or selling illicit drugs in large quantities. It appears that his customers were fellow drug users in the Carnarvon area. However, this is not to say that the appellant's overall offending was not serious. The appellant was a prolific dealer of harmful drugs, most notably methylamphetamine, into his community. He did so for commercial reasons. It is not a mitigating factor that he did so to alleviate his financial stress and to make money to buy drugs for his personal use.
The offences were committed by the appellant while he was on bail for other alleged drug offences. This is a significant aggravating factor which underscores the need for personal deterrence.[34]
[34] Carlucci v The State of Western Australia [50].
The appellant does not have the advantage of prior good character. While the appellant had not previously been convicted of drug dealing offences, his criminal record shows a disregard for the law and further emphasises the need for personal deterrence. It is to be hoped that the appellant continues on the path towards rehabilitation. However, at this early stage, his progress remains to be seen.
We have had regard to the appellant's disadvantaged upbringing and the trauma surrounding the loss of his unborn child. Bearing in mind the sentencing principles referred to in [22] above, these are subsidiary, but not irrelevant, considerations. The most significant mitigating factor in this case is the appellant's pleas of guilty which attracted the maximum discount allowed pursuant to s 9AA of the Sentencing Act.
We turn now to the comparable cases. The outcome of one case, in this instance Carlucci, does not establish the range of sentences customarily imposed. In any event, as the State pointed out, its facts and circumstances make it an inapt comparator for present purposes. We have had regard to the cases cited by the respondent, to which may be added the recent case of Tirkot v The State of Western Australia.[35] It is unnecessary to repeat the facts and circumstances of those cases. It is enough to say that they do not point to implied error in the present case.
[35] Tirkot v The State of Western Australia [2018] WASCA 41.
Having regard to the maximum penalty for the offences committed by the appellant, all of the matters set out above, including his personal circumstances and, in particular, his pleas of guilty, the comparable cases and the relevant sentencing principles, we do not consider it reasonably arguable that the total effective sentence of 5 years' imprisonment infringed the first limb of the totality principle. To the contrary, the outcome reflected a proper application of the first limb of the totality principle. The appellant has fallen well short of establishing implied error on the part of the sentencing judge. Accordingly, leave to appeal must be refused and the appeal dismissed.
The orders we would make are as follows:
(1)Leave to appeal is refused.
(2)The appeal is dismissed.
Schedule
| Count | Facts | Offence | Maximum Penalty | Sentence Imposed |
| Methylamphetamine | ||||
| 1 | At 7.53 pm on 9 June 2018, the appellant received a text message from a male associate requesting a half-weight on tick and the appellant advised the associate to come around. (0.5 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (cumulative) |
| 2 | At 11.41 am on 11 June 2018, the appellant received a text message from a male associate requesting 2P and the appellant advised the associate to come around. (0.2 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 3 | At 10.40 am on 20 June 2018, the appellant received a text message from a male associate requesting 3P and the appellant advised the associate to come around. (0.3 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 4 | At 2.46 pm on 20 June 2018, the appellant received a text message from a male associate requesting a half-weight. The appellant replied, 'Four for half'. At 6.10 pm, the associate advised the appellant he would be at his place with 400. It was alleged that the appellant offered 0.5 g of methylamphetamine at a price of $400. (0.5 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 5 | At 10.13 pm on 20 June 2018, the appellant offender received a text message from a male associate requesting a half-weight for 400. The appellant agreed. It was alleged that the appellant offered 0.5 g of methylamphetamine at a price of $400. (0.5 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 6 | At 7.08 am on 22 June 2018, the appellant received a text message from a male associate requesting a half on tick, which the appellant agreed to supply. (0.5 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 7 | At 5.06 pm on 24 June 2018, the appellant received a phone call from a male associate who requested a point, which the appellant agreed to supply. (0.1 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 8 | At 7.38 am on 26 June 2018, the appellant received a text message from a male associate requesting 2P, which the appellant agreed to supply. (0.2 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 9 | At 3.57 pm on 26 June 2018, the appellant made a phone call to a male associate during which the appellant agreed to provide the associate with two packets. (0.2 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 12 | At 8.46 am on 28 June 2018, the appellant received a text message from a male associate asking for half for 250 to 300 dollars. The appellant advised that he could only do 3Ps, to which the associate agreed. It was alleged that the appellant offered to supply 0.3 g of methylamphetamine at a price of $250 to $300. (0.3 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 13 | At 12.13 pm on 2 July 2018 the appellant received a text message from a male associate asking for 2P on tick, which the appellant agreed to supply. (0.2 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 14 | At 11.40 pm on 2 July 2018 the appellant received a phone call from a female associate. The appellant advised the female associate he could only order PKs, which the female associate agreed to. (0.1 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 15 | At 1.59 pm on 4 July 2018 the appellant received a text message from a male associate requesting two Ps on tick, which the appellant agreed to supply. (0.2 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 16 | At 8.37 pm on 5 July 2018 the appellant received a text message from a male associate requesting half for 40, which the appellant agreed to supply. It was alleged that the appellant offered 0.5 g of methylamphetamine at a price of $400. (0.5 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 17 | At 8.37 pm on 5 July 2018 the appellant received a phone call from a male associate who asked for a half-weight. The appellant agreed but said not to tell anyone. (0.5 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 18 | At 11.53 am on 7 July 2018 the appellant received a phone call from a male associate who asked for 2P on tick. The appellant agreed. (0.2 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 19 | At 9.58 pm on 7 July 2018 the appellant received a phone call from a male associate who asked the appellant for a half-weight and agreed to a price of $500. (0.5 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 20 | At 10.20 am on 9 July 2018 the appellant received a text message from a male associate who asked the appellant for a point, which the appellant agreed to supply. (0.1 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 21 | At 2.24 pm on 9 July 2018 the appellant received a phone call from a male associate who asked the appellant for a half. The appellant agreed to a price of between 200 to 250 dollars. (0.5 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 22 | At 4.29 pm on 9 July 2018 the appellant received a phone call from a male associate who asked if the appellant had any gear (allegedly referring to methylamphetamine) at $350 worth. It was alleged that the appellant agreed to supply methylamphetamine at a price of $350. (Unknown amount of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 23 | At 11.23 on 10 July 2018 the appellant received a text message from a male associate who asked for 2P, which the appellant agreed to supply. (0.2 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 24 | At 12.23 pm on 10 July 2018 the appellant received a text message from a male associate requesting 2P, which the appellant agreed to supply. (0.2 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 25 | At 3.13 am on 11 July 2018 the appellant received a text message from a male associate asking for a point, which the appellant agreed to supply. (0.1 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 26 | At 9.45 am on 12 July 2018 the appellant received a phone call from a male associate. (0.5 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 27 | At 5.06 pm on 13 July 2018 the appellant received a text message from a male associate who asked for a point, which the appellant agreed to supply. (0.1 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 28 | At 6.48 pm on 13 July 2018 the appellant received a phone call from a male associate who asked for a point, which the appellant agreed to supply. (0.1 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 31 | At 9.18 am on 30 July 2018 the appellant received a phone call from a male associate requesting a point, which the appellant agreed to supply. (0.1 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 32 | At 10.26 am on 31 July 2018 the appellant received a text message from a male associate requesting 2P, which the appellant agreed to supply. (0.2 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 33 | At 5.22 pm on 1 August 2018 the appellant received a text message from a female associate. (0.1 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 34 | At 8.14 pm on 1 August 2018 the appellant made a phone call to a male associate and the associate asked for half a gram. It was alleged that the appellant agreed to supply 0.5 g of methylamphetamine for $500. (0.5 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 35 | At 9.53 am on 9 August 2018 the appellant received a text message from a male associate who asked for 5P, which the appellant agreed to supply. (0.5 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 36 | At 9.53 pm on 9 August 2018 the appellant received a text message from a male associate requesting 5P and sell the rest, to which the offender agreed. (0.5 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 37 | At 9.53 pm on 9 August 2018 the appellant made a phone call to a female associate and offered the female associate two points, which the female accepted. (0.2 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 42 | At 7.47 pm, on 17 August 2018, the appellant received a text message from a male associate who asked for half a weight for 500, which the appellant agreed to supply. It was alleged that the appellant agreed to supply 0.5 g of methylamphetamine for $500. (0.5 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (cumulative) |
| 43 | At 1.14 pm on 21 August 2018, the appellant made a phone call to a male associate who asked for two things, alleged to be 0.2 g of methylamphetamine, and the appellant agreed. (0.2 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 44 | At 1.18 pm on 21 August 2018, the appellant made a phone call to a male associate and agreed to supply the associate with a half for $500. (0.5 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 45 | At 1.19 pm on 21 August 2018, the appellant made a phone call to a male associate and offered to supply a half. (0.5 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 46 | At 7.36 pm, still on 21 August 2018, the appellant received a phone call from a female associate and the appellant offered to supply singles to the associate. (0.1 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 47 | At 7.49 pm on 21 August 2018, the appellant made a phone call to a male associate and offered to supply singles to the associate. (0.1 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 48 | At 7.49 pm on 21 August 2018, the appellant made a phone call to a female associate and offered to supply singles to that associate. (0.1 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 49 | At 10.20 pm on 21 August 2018, the appellant received a phone call from a male associate during which the appellant agreed to supply two for $150. It was alleged that the appellant agreed to supply 0.2 g of methylamphetamine for $150. (0.2 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 50 | At 3.38 pm on 22 August 2018, the appellant received a text message from a male associate who asked for two P, which the appellant agreed to supply. It was alleged that 2P was a reference to 0.2 g of methylamphetamine. (0.2 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 51 | At 2.14 pm, on 23 August 2018, the appellant received a text message from a male associate who asked for a point or two, which the appellant agreed to supply. (0.1 - 0.3 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 52 | At 5.06 pm on 23 August 2018, the appellant received a text message from a male associate who asked for a packet of 100. At 6.11 pm, the appellant received a text message from the same phone number asking for a small packet (said to be 0.1 g of methylamphetamine), which the appellant agreed to supply. (0.1 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 53 | At 8 pm on 23 August 2018, the appellant made a phone call to a male associate and agreed to swap four sticks (alleged to be cannabis) for two points (alleged to be 0.2 g of methylamphetamine). (0.2 g of Methylamphetamine) | Offering to sell or supply a prohibited drug, namely methylamphetamine, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months |
| 54 | On 1 September 2018, police executed a Misuse of Drugs Act search warrant at 6 Shallcross Street, East Carnarvon, where the appellant and his partner resided. During the search of the appellant's bedroom, police located a yellow shirt hanging in the closet and in the front right-hand pocket the police found a small clipseal bag containing six g of methylamphetamine at 82 per cent purity. The appellant denied knowledge of possession of all the drugs and drug-related items inside the premises. (6.0 g of Methylamphetamine) | Having possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 15 months (cumulative) |
| Oxycodone | ||||
| 10 | At 7.22 am on 28 June 2018, the appellant received a phone call from a female associate. The appellant advised the female associate that he was in possession of oxycodone 40s. The female asked for one, which the appellant agreed to supply. | Offering to sell or supply a prohibited drug, namely oxycodone, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 11 | At 8.21 am on 28 June 2018, the appellant received a phone call from an associate asking if the appellant had the 40s, which was alleged to be a reference to oxycodone. | Offering to sell or supply a prohibited drug, namely oxycodone, to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 12 months (concurrent) |
| 55 | On 1 September 2018, police executed a Misuse of Drugs Act search warrant at 6 Shallcross Street, East Carnarvon, where the appellant and his partner resided. During the search, police located a small Mentos tin in the lounge room which held two clipseal bags containing oxycodone tablets. 10 tablets were packed into one bag and 16 in the other. In total, the appellant was in possession of 26 oxycodone tablets weighing 4.07 g. Neither the appellant nor his partner had a prescription for oxycodone. During the search, police also located scales, clipseal bags which police say are identical to the ones inside the Mentos tin, $800 cash and other drug paraphernalia, including cannabis, which the appellant said belonged to his partner. The appellant denied knowledge of possession of all the drugs and drug-related items inside the premises. (26 tablets (4.07 g) of Oxycodone) | Having possession of a prohibited drug, namely oxycodone, with intent to sell or supply it to another (s 6(1)(c) Misuse of Drugs Act). | A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). | 9 months (cumulative) |
Cannabis 29 At 12.03 pm on 26 July 2018 the appellant made a phone call to a male associate offering green for money but needed someone to weigh up the drugs with scales. The associate agreed. The green was alleged to be cannabis. Offering to sell or supply a prohibited drug, namely cannabis, to another (s 6(1)(c) Misuse of Drugs Act). A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). 12 months
(concurrent)30 At 1.31 pm on 26 July 2018 the appellant received a phone call from a male associate.
The appellant advised the associate he could get a pound. The associate asked for some sticks, which was alleged to be a reference to cannabis. The appellant said he didn't have any on him, but asked the associate to catch up with him later.Offering to sell or supply a prohibited drug, namely cannabis, to another (s 6(1)(c) Misuse of Drugs Act). A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). 12 months
(concurrent)38 On 11 August 2018 at 6.37 pm the appellant received a phone call from a female associate.
The appellant accepted an offer for 454 g of cannabis and said that he could get rid of it, as people hassle him for it. The associate said she knew and the appellant could because he sold.Other evidence gathered during the course of the investigation included discussions involving the appellant regarding weights and prices, demonstrating that the appellant was capable of selling and supplying cannabis on a regular basis.
Conspired to possess a prohibited drug, namely, cannabis with intent to sell or supply (s 6(1)(c) and 33(2)(a) Misuse of Drugs Act). A fine not exceeding $75 000 or
imprisonment for a term not exceeding 20 years or both (s 34(1)(b) Misuse of Drugs Act).12 months
(cumulative)40 At 2.24 pm on 15 August 2018 the appellant received a phone call from a male associate.
The appellant advised the associate he had cones and the associate said he would attend the appellant's home address. Cones was alleged to be a reference to cannabis.Offering to sell or supply a prohibited drug, namely cannabis, to another (s 6(1)(c) Misuse of Drugs Act). A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). 12 months
(concurrent)41 At 5.55 pm on 17 August 2018, the appellant stated in a phone call to his partner that he was picking up ganja for her. Ganja was alleged to be a reference to cannabis. Offering to sell or supply a prohibited drug, namely cannabis, to another (s 6(1)(c) Misuse of Drugs Act). A fine not exceeding $100 000 or imprisonment for a term not exceeding 25 years or both (s 34(1)(aa) Misuse of Drugs Act). 12 months
(concurrent)
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza11 MARCH 2020
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