Wright v The State of Western Australia

[2019] WASCA 183

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   WRIGHT -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 183

CORAM:   BUSS P

MAZZA JA

HEARD:   25 OCTOBER 2019

DELIVERED          :   15 NOVEMBER 2019

FILE NO/S:   CACR 91 of 2019

BETWEEN:   JAKE SAMUEL WRIGHT

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   GLANCY DCJ

File Number             :   IND 2201 of  2018

Catchwords:

Criminal law - Appeal against sentence - Possession of methylamphetamine with intent to sell or supply - Possessing stolen or unlawfully obtained property - Escaping lawful custody - Manifest excess - Totality principle

Legislation:

Criminal Code (WA), s 146, s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34
Sentencing Act 1995 (WA), s 7(3)(a), s 9AA

Result:

Leave to appeal refused on grounds 1 and 2
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Doherty v The State of Western Australia [2014] WASCA 142

Fullgrabe v The State of Western Australia [2006] WASCA 138

Hapke v The State of Western Australia [2006] WASCA 188

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

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

McNally v The State of Western Australia [2019] WASCA 93

The State of Western Australia v Charles [2016] WASCA 108

The State of Western Australia v Egeland [2018] WASCA 228

The State of Western Australia v Gibbs [2009] WASCA 7; (2009) 192 A Crim R 399

The State of Western Australia v Nillson [2017] WASCA 68; (2017) 266 A Crim R 110

JUDGMENT OF THE COURT:

1. This is an application for leave to appeal against sentence.

2. The appellant was charged on indictment in the District Court, as follows:

   (1)On 23 July 2018 at Myaree [the appellant] had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.

   (2)On the same date and at the same place as in Count (1) [the appellant] escaped from lawful custody.

   (3)On 6 August 2018 at Naval Base [the appellant] had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.

   (4)On the same date and at the same place as in Count (3) [the appellant] was in possession of a sum of money, which was then reasonably suspected to have been unlawfully obtained.

   (5)On 10 October 2018 at Fremantle [the appellant] had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.

   (6)On the same date and at the same place as in Count (5) [the appellant] was in possession of a sum of money, which was then reasonably suspected to have been unlawfully obtained.

3. Counts 1, 3 and 5 are all contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MDA). At the material time, s 34(1)(a) of the MDA provided, relevantly, that a person who is convicted of a crime under s 6(1) of the MDA that involves a 'trafficable quantity of methylamphetamine' is liable to imprisonment for life and s 34(1)(aa) of the MDA provided that any other crime under s 6(1) is liable to imprisonment for a term not exceeding 25 years or a fine not exceeding $100,000 or both. At the material time, the term 'trafficable quantity of methylamphetamine' was defined in s 34(1A) of the MDA to mean a quantity of methylamphetamine not less than that specified in Schedule VII item 8 (at the material time, 28 g). Count 2 is contrary to s 146 of the Criminal Code (WA) (the Code), which carries a maximum penalty of 7 years' imprisonment. Counts 4 and 6 are contrary to s 417(1) of the Code, which carries a maximum penalty of 7 years' imprisonment.

4. On 6 June 2019, the appellant was convicted on his fast‑track pleas of guilty of all counts in the indictment.[1]  Later that day, Glancy DCJ imposed the following sentences:

   [1] ts 6 - 7.

Count 1	Possession of methylamphetamine with intent to sell or supply	3 years' imprisonment (head sentence)
Count 2	Escaping lawful custody	12 months' imprisonment (cumulative)
Count 3	Possession of methylamphetamine with intent to sell or supply	12 months' imprisonment (cumulative)
Count 4	Possession of stolen or unlawfully obtained property	18 months' imprisonment (concurrent)
Count 5	Possession of methylamphetamine with intent to sell or supply	12 months' imprisonment (cumulative)
Count 6	Possession of stolen or unlawfully obtained property	18 months' imprisonment (concurrent)

1. Thus, the total effective sentence imposed by her Honour was 6 years' imprisonment.  The appellant was made eligible for parole.  The total effective sentence was backdated to 24 September 2018.[2]

   [2] ts 27 - 28.

2. During her sentencing remarks, the sentencing judge said that the maximum penalty for each of counts 1, 3 and 5 was 25 years' imprisonment or a fine of $100,000 or both. That was correct in relation to counts 3 and 5. However, count 1 involved the possession of a 'trafficable quantity of methylamphetamine' with intent to sell or supply it to another in respect of which the maximum penalty was life imprisonment. Count 1 in the indictment did not expressly plead, as a circumstance of aggravation, that the quantity of methylamphetamine the subject of the charged offence was a 'trafficable quantity of methylamphetamine'. However, details of the charge, as set out in the margin of the indictment, referred to s 6(1)(a) and s 34(1)(a) of the MDA. It is unnecessary to consider whether the pleading of count 1 in the indictment engaged s 7(3)(a) of the Sentencing Act 1995 (WA), which concerns liability for greater penalties dependent on whether the offender is 'charged and convicted of' the offence in, relevantly, aggravating circumstances. See, generally, in relation to s 7(3)(a), the observations of Steytler P in The State of Western Australia v Gibbs.[3]  We will deal with the appellant's application for leave to appeal against sentence on the basis which is more favourable to him, namely that the maximum penalty for count 1 was, as her Honour stated, 25 years' imprisonment and/or a fine of $100,000.

   [3] The State of Western Australia v Gibbs [2009] WASCA 7; (2009) 192 A Crim R 399 [35] - [37].

3. The appellant is self‑represented.  His appellant's case is not in accordance with the relevant provisions in the Supreme Court (Court of Appeal) Rules 2005 (WA). However, it is clear enough that he seeks leave to appeal against sentence on two grounds. As we understand them, ground 1 alleges that the individual sentence imposed on count 2 was manifestly excessive. Ground 2 alleges, in substance, that the total effective sentence infringed the first limb of the totality principle.

4. In our opinion, leave to appeal on each ground should be refused, and the appeal dismissed.  Our reasons for these conclusions are as follows.

The facts

1. The facts of the appellant's offending were not disputed, either in the court below or in this court.[4]

   [4] ts 18 - 20.

2. In relation to counts 1 and 2, at about 10.00 pm on 23 July 2018, the vehicle being driven by the appellant was stopped by police on a road near a Forty Winks store in the Melville/Myaree area.  The police searched the vehicle and found a black magnetic lockbox which held two clipseal bags containing 4.94 g and 0.14 g of methylamphetamine, a used glass smoking implement, other clipseal bags, $2,150 in cash and some electronic scales.  At this point, the appellant was arrested on suspicion of possession of a prohibited drug with intent to sell or supply.  He was handcuffed and sat down while the officers continued to search the vehicle.  The appellant escaped legal custody by leaving the scene when the police found, in the footwell of the vehicle, a red cloth bag which contained another metal lockbox.  Inside that box were three clipseal bags which contained, in total, 41.1 g of methylamphetamine.

3. The appellant remained at large until 6 August 2018, when police located him in a shack at the Naval Base Caravan Park (the shack).[5]

   [5] ts 19.

4. As to counts 3 and 4, upon his arrest in the vicinity of the shack, the police conducted a search of the appellant and found $2,310 in cash in the pocket of the appellant's jeans, and a small clipseal bag containing about 0.19 g of methylamphetamine in another pocket of his jeans.  Police officers then conducted a search of the shack.  Underneath the bedcovers in the main bedroom, a small, black magnetic box was located which contained 2.7 g of methylamphetamine, along with a bundle of unused clipseal bags.  In the same box, the police found 0.39 g of cannabis, 0.39 g of MDMA (ecstasy) and half a tablet of LSD mixed with methylamphetamine.

5. The police located, near the black box, a glass smoking implement and digital scales with traces of methylamphetamine on them.[6]  The appellant was conveyed to a nearby police station, where he was charged.  Initially, bail was refused.  However, the appellant was later released on bail.

   [6] ts 19.

6. As to counts 5 and 6, while he was on bail, at about 10.15 am on 10 October 2018, police conducted a traffic stop on the offender at the corner of Manning Street and Wray Avenue in Fremantle.  At the time, the appellant was riding a bicycle.  The appellant was observed to drop a bag next to a bush, and place a jacket over it.  In the bag, the police located a black box with two magnets attached to the bottom.  Inside the box was a clipseal bag containing 7.97 g of methylamphetamine, a set of digital scales, a glass smoking implement and numerous empty clipseal bags.  The police then found $2,000 in cash in a pocket of the bag.[7]

   [7] ts 19 - 20.

7. With respect to count 1, the appellant was sentenced on the basis that he had gone to a location near the Forty Winks store to buy methylamphetamine for his own use.  However, his supplier also asked him to deliver the bag with the 41 g of methylamphetamine to another person, on the understanding that there was some commercial advantage to the appellant, either a reduction in the debt the appellant owed his supplier or that he would be given 'a freebie' at some point in the future.[8]

   [8] ts 20.

The appellant's personal circumstances

1. The appellant was 27 years of age at the time of the offending, and 28 when he was sentenced.  He was born in Perth, and had a positive upbringing and a happy childhood.  He completed year 12, and is a carpenter by trade.  After completing his carpentry apprenticeship, the appellant worked in a number of jobs, including as a driller's offsider on a fly‑in/fly‑out basis.  However, he suffered a work‑related injury and while on workers' compensation, his methylamphetamine use increased significantly.  It spiralled out of control following the breakdown of his parents' marriage.[9]

   [9] ts 20 - 22.

2. The appellant has a short criminal history.  In the past, he has been twice convicted for minor drug offences, for which he was fined.[10] 

   [10] ts 25.

3. Numerous character references were tendered to the learned sentencing judge.[11]  In addition, her Honour was provided with a report dated 22 May 2019 by Ms Kristy Abbot, a counsellor at the Whitehaven Clinic.  This report revealed that while the appellant was in custody on remand, he completed 10.5 hours of counselling to address the underlying cause of his substance use, and to assist him in making long‑term behavioural changes to address his addiction to methylamphetamine.  Ms Abbot stated that the appellant had made excellent progress towards his rehabilitation, and had indicated a willingness to complete the program with the Whitehaven Clinic upon his release from prison.  In Ms Abbot's opinion, the appellant 'is extremely capable of maintaining his positive future direction'.[12]  In addition to the report of Ms Abbot, the sentencing judge was provided with a certificate of completion, certifying that the appellant had completed the Wungening Drug and Alcohol Program.[13]

   [11] ts 21.

   [12] ts 24 - 25.

   [13] ts 17.

The sentencing judge's approach

1. The sentencing judge acknowledged the following mitigating factors:

   (1)the appellant's fast‑track pleas of guilty, for which she gave the maximum deduction possible, pursuant to s 9AA of the Sentencing Act, of 25%;[14]

   (2)the counselling he had undertaken with the Whitehaven Clinic and the efforts that he had made towards his rehabilitation;[15]

   (3)the support the appellant has within the community, including from his family;[16] and

   (4)the appellant's remorse.[17]

   [14] ts 24.

   [15] ts 24 - 25.

   [16] ts 21 - 22.

   [17] ts 24.

2. Her Honour also acknowledged the following aggravating factors:

   (1)the appellant was engaged in selling drugs for commercial purposes, even though he was selling to fund his own methylamphetamine habit or to reduce the debt he had to his supplier;[18] and

   (2)in respect of counts 5 and 6, these offences were committed while the appellant was on bail.[19]

   [18] ts 22.

   [19] ts 23.

3. As to the appellant's risk of reoffending, her Honour considered that while the appellant had undertaken counselling and there was real hope for his future, she was unable to conclude that he did not present any risk of reoffending because, having regard to the contents of Ms Abbot's report, 'there is still some more work for you to do'.[20]

   [20] ts 25.

4. Her Honour was clearly guided by the well‑established general principles which are to be applied to offenders who, like the appellant, commit serious drug offences, which we will refer to below.[21]  Specifically as to count 2, her Honour observed that the appellant's escape from police after he had been arrested was 'a serious thing to do', even if he did so out of panic and did not assault anyone or damage police property.[22]

   [21] ts 25 - 26.

   [22] ts 23.

5. Her Honour had regard to the totality principle, reducing the individual terms of imprisonment she would have imposed on counts 1, 2 and 3 for this reason.[23]

   [23] ts 27.

6. The learned sentencing judge backdated the sentences to reflect the 255 days the appellant had spent in custody in respect of the offences.[24] 

   [24] ts 28.

General appellate sentencing principles

1. The general principles applicable to this appeal are well‑established.  They were recently summarised by this court in Kabambi v The State of Western Australia.[25]

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

General sentencing principles with respect to serious drug offences

1. The general sentencing principles to be applied in cases of serious drug offending have been explained in numerous cases decided by this court.  For example, in The State of Western Australia v Egeland,[26] Mazza and Mitchell JJA said:[27]

   The major sentencing considerations for offences of dealing or trafficking in dangerous drugs such as MDMA 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 personal 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.  (footnote omitted)

   [26] The State of Western Australia v Egeland [2018] WASCA 228.

   [27] Egeland [142].

Ground 1:  manifest excess

1. The appellant submits that the individual sentence he received of 12 months' imprisonment for the offence of escaping legal custody was manifestly excessive, having regard to the first instance outcomes of two cases decided in the Magistrates Court. 

2. As we have already noted, the maximum penalty for an offence contrary to s 146 of the Code is 7 years' imprisonment.

3. Intermediate appellate courts have regard to comparable cases to ensure consistency in the application of relevant legal principles and to ensure broad consistency in outcome.  However, this is done through the work of intermediate appellate courts and not by reference to sentences passed at first instance.[28]  Thus, the two cases relied upon by the appellant are of no assistance. 

   [28] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [56].

4. The appellant did not cite comparable cases decided by this court concerning individual sentences imposed for an offence contrary to s 146 of the Code. In Fullgrabe v The State of Western Australia[29] and Hapke v The State of Western Australia,[30] this court considered whether a sentence imposed for an offence contrary to s 146 of the Code was manifestly excessive. It is not necessary to set out the facts and circumstances of these cases. Each case was decided when the maximum penalty for the offence was 3 years' imprisonment. They are also factually different from the present case. They are not apt comparators. The absence of comparable cases does not prevent this court from deciding whether an individual sentence is manifestly excessive or, for that matter, manifestly inadequate. See McNally v The State of Western Australia.[31]

   [29] Fullgrabe v The State of Western Australia [2006] WASCA 138.

   [30] Hapke v The State of Western Australia [2006] WASCA 188.

   [31] McNally v The State of Western Australia [2019] WASCA 93 [47] ‑ [48].

5. While the appellant's escape from legal custody did not involve physical violence or damage to property, he fled the scene when it became clear to him that the police had discovered the 41.1 g of methylamphetamine which had been hidden in his vehicle.  In order to evade the legal consequences of this discovery, he fled the scene and was at large for a period of two weeks.  When he was finally apprehended, he was found in possession of drugs and cash.  It is clear that while the appellant was on the run he was involved in further illegal activity.  Based on his counsel's plea in mitigation, that illegal activity was drug dealing.  When all of these factors are together taken into account, it becomes clear that the offence committed by the appellant was by no means a less serious example of an offence of its type. 

6. We will not repeat what has already been written about the appellant's personal circumstances.  We acknowledge the mitigating force of his plea of guilty and the other mitigating factors found by her Honour. 

7. Having regard to the maximum penalty, the seriousness of the appellant's criminal conduct and his personal circumstances, we are satisfied that the sentence of 12 months' imprisonment for the offence of escaping legal custody was not unreasonable or plainly unjust.  The alleged implied error is not reasonably arguable.  Leave to appeal on ground 1 should be refused.

Ground 2 - alleged infringement of the first limb of the totality principle

1. In the appellant's written submissions, he alleges that her Honour should have ordered that the sentences on counts 1 and 3 be served concurrently because, as he put it, 'the drugs found in count 1 and count 3 were found by police at the same time, on the same date and in the same car'.  In addition, the appellant submitted that, having regard to the outcomes in three cases:  Doherty v The State of Western Australia;[32] The State of Western Australia v Charles[33] and The State of Western Australia v Nillson,[34] the total effective sentence that was imposed upon him was too long. 

   [32] Doherty v The State of Western Australia [2014] WASCA 142.

   [33] The State of Western Australia v Charles [2016] WASCA 108.

   [34] The State of Western Australia v Nillson [2017] WASCA 68; (2017) 266 A Crim R 110.

2. There is no merit in the submission that the drugs the subject of counts 1 and 3 were found at the same time, on the same date and in the same car.  As the summary of facts set out earlier in these reasons makes clear, the methylamphetamine the subjects of counts 1 and 3 were found in different incidents and locations two weeks apart.

1. We have reviewed the cases referred to by the appellant.  There are some similarities to the present case, but also differences.  In any event, three cases is an insufficient basis upon which to seek to establish implied error.

2. The facts and circumstances of the present case show that the appellant was engaged in the sale or supply of methylamphetamine over a period of approximately 2 1/2 months.  In respect of count 1, the appellant willingly agreed to deliver, on behalf of his supplier, 41 g of methylamphetamine to another, thereby significantly assisting the distribution of a reasonably substantial quantity of the drug into the community.  He then, in an act involving distinctly different criminality, escaped legal custody.  Counts 3 and 4 involved further additional criminality and were committed while the appellant was 'on the run'.  Counts 5 and 6 were committed on bail.  The commission of counts 3 to 6 shows that the appellant's offending in count 1 was not a 'one‑off'.  The quantity of methylamphetamine the subject of count 1 was reasonably substantial.  While the quantities of methylamphetamine involved in counts 3 and 5 were relatively modest, it is undeniable that the appellant's overall offending was persistent and sustained.  It was necessary to impose a total sentence that properly reflected the considerations of personal and general deterrence.  In our opinion, some accumulation of the sentences that were imposed was required in order properly to reflect their overall criminality. 

3. In our opinion, the total effective sentence imposed on the appellant bore a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to all relevant facts and circumstances, including those referable to the offender personally.  The total effective sentence of 6 years' imprisonment did not infringe the first limb of the totality principle.  It is not reasonably arguable that the total effective sentence was unreasonable or plainly unjust.  Leave to appeal should be refused in respect of ground 2. 

A further matter

1. In his oral submissions, the appellant alleged, in essence, that the learned sentencing judge erred in her treatment of count 1 by 'combining' the 5.08 g of methylamphetamine found in the appellant's car by the police with the 41.1 g of methylamphetamine that was found later in the footwell of the appellant's vehicle.  Her Honour did not err in her treatment of the quantities of methylamphetamine found in the appellant's vehicle.  In his plea in mitigation, defence counsel addressed the court on the basis that count 1 concerned the total quantity of the methylamphetamine found in the appellant's vehicle and made submissions as to each quantity.  The learned sentencing judge recognised that count 1 was concerned with two separate quantities of methylamphetamine and that the larger quantity of the drug was possessed by the appellant in the circumstances he alleged.  In doing so, her Honour correctly acknowledged that there was a commercial aspect in respect of each quantity of the drug.  In respect of the smaller quantity, the appellant was seeking to use some of the methylamphetamine himself and then to sell some to fund his own illicit drug use and, with the larger quantity, there would have been a 'quid pro quo' at a later time for supplying it to another. 

Conclusion and orders

1. Neither ground of appeal relied on by the appellant has a reasonable prospect of succeeding.  The appeal must be dismissed.

2. The orders that we would make are as follows:

   (1)Leave to appeal is refused on grounds 1 and 2.

   (2)The appeal is dismissed.

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

FN
Research Associate to the Honourable Justice Buss

15 NOVEMBER 2019