Zadarnowski v The State of Western Australia
[2025] WASCA 48
•8 APRIL 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ZADARNOWSKI -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 48
CORAM: MAZZA JA
MITCHELL JA
ARCHER JA
HEARD: 20 MARCH 2025
DELIVERED : 8 APRIL 2025
FILE NO/S: CACR 88 of 2024
BETWEEN: PHILLIP LEIGH ZADARNOWSKI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: ASTILL DCJ
File Number : IND 804 of 2021
Catchwords:
Criminal law - Appeal against sentence - Drug offences - Whether individual sentences manifestly excessive - Whether total effective sentence infringes first limb of totality principle
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | R Sleeth |
| Respondent | : | B M Murray |
Solicitors:
| Appellant | : | Rebekah Sleeth |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
ANM v The State of Western Australia [2019] WASCA 155
Barnes v The State of Western Australia [2014] WASCA 49
Carlucci v The State of Western Australia [2019] WASCA 37; (2019) 276 A Crim R 472
Cochrane v The State of Western Australia [2021] WASCA 5; (2021) 57 WAR 262
HSV v The State of Western Australia [2020] WASCA 5; (2020) 281 A Crim R 147
Kabambi v The State of Western Australia [2019] WASCA 44
Krispyn v The State of Western Australia [2020] WASCA 136
McConnell v The State of Western Australia [2020] WASCA 59
Stipanich v The State of Western Australia [2023] WASCA 118
The State of Western Australia v Delaney [2020] WASCA 93
The State of Western Australia v Stocker [2022] WASCA 178; (2022) 305 A Crim R 335
Wright v The State of Western Australia [2019] WASCA 183
Zheng v The State of Western Australia [2016] WASCA 224
JUDGMENT OF THE COURT:
This is an appeal against sentence.
On 17 June 2024, the appellant was convicted after trial before Astill DCJ and a jury of three drug‑related offences, all of which occurred on 3 January 2020, at Kwinana. Count 1 was an offence of supplying a trafficable quantity of methylamphetamine to another, contrary to s 6(1)(c) and s 34(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA); count 2 was an offence of supplying MDMA to another, contrary to s 6(1)(c) and s 34(1)(aa) of the MDA; and count 3 was an offence of possession of $1,820 in cash, which was reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA).
On 26 July 2024, the appellant was sentenced to the following terms of imprisonment:
Count 1:6 years
Count 2:4 years
Count 3:1 year
The sentencing judge ordered that the sentences on counts 1 and 3 be served cumulatively, and that the sentence on count 2 be served concurrently with the sentence on count 1. Thus, the total effective sentence imposed on the appellant was 7 years' imprisonment. The appellant was made eligible for parole and the sentence was backdated to commence on 19 January 2023.
The appellant advances three grounds of appeal. Grounds 1 and 2 allege that the sentences imposed on counts 1 and 2, respectively, were manifestly excessive. Ground 3 alleges that the total effective sentence infringed the first limb of the totality principle.
For the reasons that follow, leave to appeal should be refused on all grounds and the appeal dismissed.
The facts
The facts of the offending, as found by the sentencing judge, are not in dispute.
At the time of the commission of the offences, the appellant was on parole for various traffic‑related offences. His period of parole was due to end on 25 January 2025. He was also using prohibited drugs and dealing them at street level, mainly methylamphetamine.
On 3 January 2020, the appellant drove to the Kwinana Marketplace shopping centre in a BMW motor vehicle. While at the shopping centre, the appellant was captured on CCTV paying for items with cash from a black bumbag he was carrying. He then returned to the BMW. At this point, an associate of the appellant, MJB, approached the passenger side of the BMW. No finding was made as to whether this meeting was planned or not. In any event, after a brief conversation, MJB got into the BMW with the appellant, where they became aware of an approaching marked police vehicle, which was doing routine patrols in the area.
The appellant then drove the BMW into the drive‑through of a nearby fast food restaurant. There, the appellant supplied MJB with 55.13 g of methylamphetamine (count 1) and 25.3 g of MDMA (count 2), as well as a black backpack, the black bumbag referred to earlier, which contained the cash the subject of count 3, and his wallet, which contained various items of identification. The sentencing judge found that the appellant supplied the methylamphetamine, MDMA, and the other items to MJB in a state of panic, because of the presence of the police, with the intention of retrieving them later from MJB.
MJB got out of the BMW in the drive‑through. The appellant then drove off at speed, presumably to avoid a police pursuit. MJB was immediately apprehended. He was searched and police found the methylamphetamine and the MDMA. The methylamphetamine was packaged in smaller street‑level amounts, ranging from a point (0.1 g) to an eight ball (3.5 g). At the time, a point of methylamphetamine was being sold at street level for around $50 and an eight ball for around $900.
Police also seized the $1,820 cash the subject of count 3. The sentencing judge found that some, but not all, of this money had been derived from the sale of prohibited drugs.
His Honour also found that, at the time of the commission of the offences, the appellant was a user of prohibited drugs, and that he was dealing in part to support his habit and in part to make a profit. His Honour characterised the appellant as a 'low‑end user‑dealer'.[1]
[1] ts 820.
The appellant's personal circumstances
At the time of the offending, the appellant was 42 years of age. He was 47 years old when he was sentenced. He was single and had no children. Since leaving school at year 10, he had obtained a number of vocational qualifications. From 2022 until his trial, the appellant was employed as a leading hand with a large waste management company.
The appellant had what the sentencing judge described as a 'fortunate' upbringing. It is clear from the references provided to the court that the appellant's family members remain supportive of him.
While the appellant is physically and mentally healthy, he has been a user of prohibited drugs since the age of 18. He has a lengthy criminal history, mostly for relatively minor convictions in the Magistrates Court, largely connected to his drug use. Notably, in 1998, he was convicted in the Court of Petty Sessions on two occasions of possession of a quantity of cannabis with intent to sell or supply. In 2006, he was convicted in the District Court of conspiracy to manufacture or prepare a prohibited drug, for which he was placed on a conditional suspended imprisonment order. In 2019, he received his first term of immediate imprisonment and was sentenced to 12 months' imprisonment in respect of driving offences. He was released on parole for those offences and, as mentioned, committed the offences the subject of this appeal while on parole. The pre‑sentence report noted that 'substance use has played a significant role in [the appellant's] offending behaviour'.
Following his arrest, the appellant was remanded in custody at Hakea Prison from 19 May 2020 until 22 November 2021. Due to the COVID‑19 pandemic, a significant portion of this time was spent in lockdown conditions. On 22 November 2021, the appellant was granted home detention bail until 8 May 2023. On that day, the appellant's first scheduled trial commenced. Through no fault of the appellant, that trial was aborted. Thereafter, the appellant was placed on 'standard bail'.
While on home detention bail, the appellant was subject to urinalysis and returned no positive samples. The sentencing judge accepted that the appellant had been 'clean' from prohibited drugs for the four years between his arrest and the date of sentencing. At the time of his sentencing, the appellant had obtained meaningful employment. References tendered to the sentencing judge written by his employer and family members spoke well of him and his rehabilitation.
The sentencing remarks
The sentencing remarks are lengthy. As nothing his Honour said is the subject of challenge, it is unnecessary to canvass them in detail. His Honour noted the quantities of prohibited drugs that the appellant supplied to MJB. In respect of the methylamphetamine, his Honour observed that some of it had been packaged in preparation for sale. His Honour found that there was a clear element of commerciality in the offences, including an intention to make a small profit.
The sentencing judge found that the appellant had been operating as a 'low‑end user‑dealer' for some period prior to the commission of the offences.
His Honour found that the offending being committed while the appellant was on parole was an aggravating factor.[2]
[2] ts 824.
His Honour found that the following factors were mitigating:
(a)The time the appellant spent on remand in custody during the COVID‑19 pandemic, under lockdown.
(b)The appellant was on home detention for a period of 18 months.
(c)In the lengthy period of approximately four years between being charged and convicted, the appellant had taken significant steps towards his rehabilitation. His Honour found the appellant's prospects of rehabilitation to be 'demonstrably good'.[3] His Honour described the appellant's rehabilitation as 'the most significant thing to be said in [his] favour'.[4]
[3] ts 826.
[4] ts 827.
His Honour referred to the importance of deterrence in the sentencing of offenders who commit drug trafficking offences. He emphasised the need for general deterrence, but moderated the need for personal deterrence having regard to the appellant's progress towards his rehabilitation.
After imposing the individual sentences, his Honour then had regard to issues of concurrency, cumulacy and totality. He concluded that a total effective sentence of 7 years' imprisonment was, in all of the circumstances, appropriate. In order to effect this, he made the orders for concurrency and cumulacy at [4] above.
Some general principles
The general sentencing principles applicable to grounds of appeal alleging implied error are well established and have been stated by this court on countless prior occasions. The principles were summarised in Kabambi v The State of Western Australia.[5] They do not need to be repeated here.
[5] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
It is also well established that the major sentencing considerations for offences of trafficking in dangerous drugs of addiction are general and personal deterrence. While the weight of the drugs in question is not generally the chief factor to be taken into account in fixing a sentence, it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation 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, while not irrelevant, are generally subsidiary considerations.[6]
[6] See Carlucci v The State of Western Australia [2019] WASCA 37; (2019) 276 A Crim R 472 [37].
In any sentencing exercise, the maximum penalty is an important factor. The maximum penalty for the offence the subject of count 1 was increased in 2017 from 25 years' imprisonment to life imprisonment. Where Parliament increases the maximum penalty for an offence, Parliament's new view of the offence must be taken into account in sentencing an offender. An increase in the maximum penalty is an indication that sentences for that type of offence should be generally increased.[7]
[7] HSV v The State of Western Australia [2020] WASCA 5; (2020) 281 A Crim R 147 [44] ‑ [45].
The appellant's submissions
In oral submissions, counsel for the appellant accepted that, save for the mitigating circumstances in the present case, which she characterised as 'exceptional', the sentences imposed upon the appellant were within the acceptable sentencing range.[8]
[8] Appeal ts 3.
Counsel for the appellant submitted that, in combination, the approximately four‑year delay between the commission of the offence and the appellant's sentencing; the significant rehabilitation that he had undergone during this period; the onerous conditions he endured when he was locked down due to COVID‑19 restrictions; and the 18 months of home detention bail, in effect, demanded lower sentences, notwithstanding the objective seriousness of the offending. Accordingly, the individual sentences on counts 1 and 2 and the total effective sentence were unreasonable or plainly unjust.
In support of grounds 1 and 2, the appellant cited three decisions of this court, Krispyn v The State of Western Australia;[9] Cochrane v The State of Western Australia;[10] and The State of Western Australia v Stocker.[11]
[9] Krispyn v The State of Western Australia [2020] WASCA 136.
[10] Cochrane v The State of Western Australia [2021] WASCA 5; (2021) 57 WAR 262.
[11] The State of Western Australia v Stocker [2022] WASCA 178; (2022) 305 A Crim R 335.
The respondent's submissions
The respondent submitted that, while the mitigating factors emphasised on behalf of the appellant were to his credit, they had been expressly acknowledged by the sentencing judge. In combination, the 'unique and significant' mitigation was not exceptional nor demonstrated error.
The respondent submitted that the sentence on count 1 was plainly consistent with the standards of sentencing customarily imposed. The respondent noted that, in Stipanich v The State of Western Australia,[12] this court observed that, prior to the increase in the maximum penalty (as referred to at [27] above), sentences for dealing in ounces rather than kilograms of methylamphetamine of between 5 years and 7 years' imprisonment were commonly imposed, and that an increase in the maximum penalty should be expected to cause an increase in sentences.[13]
[12] Stipanich v The State of Western Australia [2023] WASCA 118.
[13] Stipanich [49].
The respondent also referred to the outcomes in Barnes v The State of Western Australia;[14] Zheng v The State of Western Australia;[15] ANM v The State of Western Australia;[16] Wright v The State of Western Australia;[17] McConnell v The State of Western Australia;[18] and The State of Western Australia v Delaney.[19]
[14] Barnes v The State of Western Australia [2014] WASCA 49.
[15] Zheng v The State of Western Australia [2016] WASCA 224.
[16] ANM v The State of Western Australia [2019] WASCA 155.
[17] Wright v The State of Western Australia [2019] WASCA 183.
[18] McConnell v The State of Western Australia [2020] WASCA 59.
[19] The State of Western Australia v Delaney [2020] WASCA 93.
The respondent submitted that the sentences imposed on counts 1 and 2 and the total effective sentence were, having regard to all of the relevant circumstances, including the mitigating circumstances, an appropriate exercise of his Honour's sentencing discretion and were not erroneous.
Grounds of appeal - disposition
In our opinion, none of the grounds of appeal have a reasonable prospect of succeeding.
As to the sentence of 6 years' imprisonment imposed on count 1, it must firmly be borne in mind that the maximum penalty for the offence is life imprisonment.
The appellant's offending was serious. He supplied about 55 g of methylamphetamine (almost twice the trafficable quantity) to MJB for safekeeping. He did so with the object of ensuring that the police did not seize the drug and that he would not be charged with a serious drug offence. Furthermore, he intended to retrieve the drug from MJB and to continue distributing at least some of it. He was engaged in the business of low‑level drug dealing. He was doing so not merely to fund his own drug use, but he was also intent on deriving some profit from his activities. The fact that the appellant might be characterised as a low‑level drug dealer does not mean that his offending was minor. The very damaging effects of methylamphetamine, both to individual users and to the community generally, are well appreciated. Low‑level drug dealers are an important source of methylamphetamine for end users.
It is because of the damage done by methylamphetamine and other prohibited drugs in the upper tier of seriousness, such as MDMA, cocaine, LSD, heroin, and the like, that the dominant sentencing factors are general and personal deterrence. Although the need for personal deterrence was, due to the appellant's significant progress towards rehabilitation, somewhat moderated, general deterrence remained a significant consideration. Because of the necessity to emphasise general deterrence, the appellant's personal circumstances were to be accorded less weight.
A notable aggravating circumstance in this case was that the appellant committed the offences while he was on parole.
We have had regard to the authorities referred to by the parties. It is unnecessary to refer to them in detail. Insofar as they are relevant, they indicate that the sentence imposed on count 1 is broadly consistent with the standards of sentencing customarily imposed.
Although the appellant did not have the mitigation that pleas of guilty, youth, or the absence of a prior criminal record would have provided, he did have the mitigating factors referred to above at [22] in his favour. But even when taken in combination, we are unable to see how the sentence that was imposed on count 1 was manifestly excessive.
We hold the same view in respect of the individual sentence on count 2. The maximum penalty for this offence is 25 years' imprisonment, or a fine not exceeding $100,000, or both. The quantity of MDMA was reasonably substantial. No comparable cases were cited specifically in respect of count 2, but it is not suggested that the sentence imposed was inconsistent with sentences imposed in comparable cases. Again, notwithstanding the mitigating factors, in our opinion it is not reasonably arguable that the sentence of 4 years' imprisonment on count 2 was manifestly excessive.
This takes us to ground 3, which alleges an infringement of the first limb of the totality principle. Having decided that the sentence on count 1 was not manifestly excessive, and given that the additional criminality involved in counts 2 and 3 justified some cumulation of the sentences, the total effective sentence of 7 years' imprisonment is entirely appropriate. Ground 3 has no reasonable prospect of succeeding.
Conclusion and orders
As none of the grounds of appeal have a reasonable prospect of succeeding, the appeal must be dismissed. The orders that we would make are as follows:
1.Leave to appeal on grounds 1, 2 and 3 is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
Research Associate to the Honourable Justice Mazza
8 APRIL 2025
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