Criminal law - Appeal against sentence - Selling a prohibited drug - Whether sentencing judge erred in finding that specific deterrence was an important sentencing consideration in the appellant's case - Whether sentence of 18 months' immediate imprisonment manifestly excessive - Type and length of sentence

Bailey v The State of Western Australia [2016] WASCA 10.

Cartwright v The State of Western Australia [2010] WASCA 4.

The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198.

The State of Western Australia v Johnson [2010] WASCA 187.

1. This application for leave to appeal against sentence was heard on 2 May 2018. On 4 May 2018, orders as follows were pronounced:
   1. Leave to appeal is refused on all grounds of appeal.
   2. The appeal is dismissed.

The court said that the reasons for the making of those orders would be published at a later date. Here are those reasons.

1. On 23 February 2018, the appellant was convicted on his fast-track plea of guilty of one count of selling a prohibited drug, namely MDMA, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA). This offence carries a maximum penalty of 25 years' imprisonment and/or a fine of $100,000. The appellant was sentenced to 18 months' immediate imprisonment with eligibility for parole to commence on 23 February 2018.
2. The appellant relied upon three proposed grounds of appeal. Ground 1 alleges that the sentencing judge erred in determining that specific deterrence was an important sentencing consideration in the appellant's case. Grounds 2 and 3 allege, in effect, that the sentence was manifestly excessive in type (ground 3) and length (ground 2).

1. At approximately 5.30 pm on 1 June 2017, the appellant met with another person at a McDonald's restaurant in Success. Unbeknown to the appellant, that person was an undercover police officer. There, after some discussion, it was agreed that the appellant would sell to the person approximately 35 g of MDMA powder for $4,000.
2. The appellant then gave the person two bags of MDMA powder. One bag contained 7.01 g with a purity of 45%. The other bag contained 27.3 g with a purity of 40%. Thus, the total weight of MDMA which was actually sold was 34.31 g. In payment, the person gave the appellant $4,000 in cash.
3. On 15 June 2017, the appellant was arrested. He participated in a record of interview, and denied the offence.[1]

1. At the time of the offending, the appellant was aged 22. He was 23 when he was sentenced.[2] He completed year 12 at school. Since then he has been in regular employment.[3] His parents separated when he was aged 5. His father has had little contact with him since that time.
2. It is clear from the many character references that were provided to the sentencing judge that the appellant is well regarded by his family and friends, and is well supported in the community.[4]
3. In 2014, when the appellant was 19 or 20 years of age, he started using MDMA. In the plea in mitigation, defence counsel said that the appellant's use of MDMA increased as a result of an incident associated with his mother's separation from his step-father in 2015.[5] Defence counsel said that, over time, the appellant built up a debt to the person who regularly supplied him with the drug.[6] Defence counsel told his Honour, in substance, that the appellant obtained the MDMA from his regular supplier and sold it, with the aim of discharging his drug debt.

1. The sentencing judge accepted that the offence was an isolated act of offending, and was not to be viewed against a background of selling or supplying drugs over a period of time.[7] He also accepted that the appellant offended in order to clear the drug debt he had incurred.[8]
2. His Honour gave a discount of 25% for the plea of guilty pursuant to s 9AA of the Sentencing Act 1995 (WA).[9] He took into account other mitigating factors, including the appellant's 'relative youth';[10] the absence of any relevant prior criminal record;[11] his prior good character;[12] the positive steps the appellant had taken towards his rehabilitation;[13] his acceptance of responsibility for his offending and demonstrated insight into the factors which led him to offend;[14] the appellant's motivation to change his lifestyle; his expressions of remorse; and the support he had from family and the community.[15]
3. His Honour referred to the need for personal and general deterrence. As proposed ground 1 concerns his Honour's remarks on the question of personal deterrence, we will quote them in full:[16]

In my experience of dealing with these matters on a regular basis long-term drug users always face challenges to cease illicit drug use and it's never easy. So I do encourage you to continue to take the positive steps that you've been taking and hopefully with the support of your family you will be able to ultimately cease your illicit drug use.

An important sentencing consideration in your case is personal deterrence. That is you need to learn from and understand that if you continue to offend in the same way it is necessary to impose a sentence upon you to deter you from further offending.

1. His Honour then went on to address the importance of general deterrence. He said:[17]

Perhaps the most important sentencing factor in your case is general deterrence. I must place weight on the need to impose a sentence that is capable of acting as a deterrent to others who might be tempted to engage in the type of conduct that you were engaged in. In other words, I need to get the message out to members of the community, your former associates that continue to be involved in drug dealing and using illicit drugs, if they're caught it's likely to result in terms of imprisonment being imposed upon them.

So in one view I need to make an example of you so other members of the community who are involved in illicit drugs learn what the consequences are.

A necessary consequence of giving effect to the sentencing consideration of general deterrence is that less weight must be given to mitigating circumstances that are personal to you. That is not to say that such mitigating circumstances are irrelevant, they are not, however, they assume less weight than might otherwise be the case.

1. His Honour said, in substance, that the offence committed by the appellant was so serious that only a term of imprisonment was appropriate.[18] The appellant does not challenge this finding. His Honour then considered, but ultimately rejected, the submission put to him by defence counsel that the sentence of imprisonment should be suspended.[19] In substance, his Honour concluded that it was inappropriate to suspend the term, having regard to the gravity of the offending.[20]

1. The following principles are well established and uncontroversial. Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant factor. Proposed ground 1 is an allegation of this kind. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that the substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently. Proposed grounds 2 and 3 are alleged implied errors.
2. In order to determine whether a sentence for an individual offence is manifestly excessive, this court considers the maximum sentence prescribed by law for the relevant offence; the standards of sentencing customarily imposed with respect to that offence; the place which the criminal conduct occupies on the scale of seriousness of offences of that type; and the offender's personal circumstances.
3. While the range of sentences customarily imposed is one of the considerations relevant to whether a sentence is manifestly excessive, it does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in the relevant sentencing factors and that there is no single correct sentence. What is important is the unified principles which sentences imposed in comparable cases reveal and reflect. When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range. Ultimately, each case must be decided on its own facts and circumstances.

1. The sentencing decisions of this court reveal that the principal sentencing considerations for offences of dealing or trafficking in dangerous drugs such as MDMA are general and personal deterrence. The weight of the drugs is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. That is because it can be presumed that the greater the quantity and the purity, the greater the harm that may be done to the community. Other matters to be taken into account include the nature and level of the offender's participation in drug-dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, though they are not completely irrelevant.

1. The approach to be taken for suspended imprisonment in cases of serious drug offending was described by McLure P in Cartwright v The State of Western Australia[21] as follows:

Section 39(2) of the Sentencing Act 1995 (WA) (the Act) sets out the various sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Act a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term; the power to suspend is not confined by reference wholly, mainly or specially to the effect that suspension would have on the rehabilitation of a particular offender: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84], [85].

However, as noted in Collins v The State of Western Australia [2007] WASCA 108 [17], the sentencing discretion is not to be exercised in a vacuum. A sentencing judge must impose a type of sentence that falls within a sound discretionary range. The decisions of this court and its predecessor provide guidance to sentencing judges with the aim of achieving consistency in sentencing. This court has made it plain that generally, a term of immediate imprisonment is the only appropriate sentencing option for serious drug offences. The incentives, financial and otherwise, to participate in the illicit drug distribution network must be counterbalanced by a clear and certain understanding that such involvement will ordinarily result in a penalty of immediate imprisonment: The State of Western Australia v Saxild [2008] WASCA 156 [12]. Thus, the imposition of a sentence other than immediate imprisonment for such an offence is, as a matter of fact, exceptional: The State of Western Australia v Andela [2006] WASCA 77 [17]; Saxild [13].

However, even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge is not relieved of his or her obligation to determine the appropriate penalty in the particular case. In such circumstances the question for the sentencing judge is whether having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence: Collins [21].

1. In The State of Western Australia v Johnson,[22] McLure P observed that youth (a term used in the sentencing of adults to cover people in their late teens to middle 20s) and the absence of prior relevant convictions do not ordinarily result in the suspension of a term of imprisonment for drug-dealing offences. She further observed that it was not uncommon in this State for young persons of good character from advantaged backgrounds to engage in the distribution of prohibited drugs. Many of the youthful offenders in the cases she examined had, after being charged, taken positive steps towards rehabilitation and were not found to be at significant risk of reoffending. Nevertheless, the imposition of a term of immediate imprisonment in these types of circumstances reflected the significant weight accorded to the need for general deterrence and the prevalence of offending of this type among young people.[23]
2. In The State of Western Australia v Baldini,[24] McLure P repeated what she said in Cartwright v The State of Western Australia and The State of Western Australia v Johnson. Having considered a large number of cases involving young offenders, she said:[25]

My review of the cases again for the purpose of this appeal confirms that youth, in combination with some or all of prior good character, early guilty plea, remorse, advantaged background, family support, positive steps towards rehabilitation and no significant risk of re-offending does not ordinarily avert the imposition of a term of immediate imprisonment.

1. It was submitted on behalf of the appellant that having regard to his Honour's finding that the offending was an isolated incident and that the appellant was remorseful, accepted responsibility for his offending, showed insight into his offending behaviour and was motivated, and had taken some steps to turn his life around, personal deterrence was not an important factor in the appellant's sentencing.
2. In support of this proposed ground, the appellant referred to Bailey v The State of Western Australia.[26] In that case, the offence committed by the appellant was not a 'one-off' but occurred in the context of other drug dealing.[27] It was said that offending in this context illuminated the appellant's criminality and the need for personal deterrence.[28] In the present case, the appellant argued that the fact that the appellant committed a 'one-off' offence, only served to diminish the need for specific deterrence.
3. The observation made in Bailey is not authority for the proposition that the need for personal deterrence is necessarily diminished in cases involving 'one-off' offending. Whether personal deterrence is a relevant sentencing factor is to be judged on the particular facts and circumstances of the case. The fact that an offence is not committed in the context of other offending (whether charged or uncharged) does not necessarily obviate the need for personal deterrence.
4. The appellant's offending stemmed from his long-term use of MDMA. While the appellant had taken positive steps towards his rehabilitation after his arrest, the material before the sentencing judge did not indicate that the appellant was no longer at risk of using illicit substances. His Honour's observations as to the challenges that face long-term drug users ceasing illicit drug use were appropriate and accord with this court's experience.
5. In all of the circumstances of this case, personal deterrence remained relevant and was an important sentencing consideration. In our opinion, proposed ground 1 has no reasonable prospect of success.

1. As proposed grounds 2 and 3 each, in essence, allege manifest excess, it is appropriate to deal with them together.
2. The appellant's submissions in support of these grounds emphasise, in particular, the 'one-off' nature of the offending, and the combined effect of the mitigating factors identified by his Honour, including his relative youth, his plea of guilty, and his favourable prospects for rehabilitation. The appellant's written submissions do not analyse the sentences imposed in other cases.
3. The maximum penalty for the offence committed by the appellant is set out at [2] of these reasons.
4. As McLure P said in The State of Western Australia v Baldini, comparable cases show that, in cases such as the appellant's, the ordinary disposition, as a matter of fact, is a term of immediate imprisonment. The sentence in the present case is consistent with the comparable cases, both as to type and length.
5. The submissions made on behalf of the appellant downplay the seriousness of the offence. The 'one-off' nature of the offending does not mean that the offending was not serious. In order for the appellant to commit the offence, he contacted his supplier and arranged for the provision of a reasonably substantial quantity of MDMA. Having made the necessary arrangements with his supplier, he negotiated and ultimately sold the MDMA to the person who was, in fact, an undercover police officer.[29] It was asserted on behalf of the appellant that, but for the actions of the covert operative, the appellant may never have committed the offence. This proposition was not supported by a finding by the sentencing judge, and is speculative. The fact that the appellant's offending was motivated by a desire to repay a drug debt does not detract from the commercial nature of the sale, and is in no way mitigating.
6. We have already referred to the quantity of MDMA that the appellant sold. While we acknowledge that the quantity of the drug is not the most important factor to be taken into account, it remains significant; so too, the purity. The purity of the MDMA sold by the appellant was reasonably high.
7. We agree with his Honour that the most important sentencing consideration was general deterrence. The many ills that illicit drugs cause the community, which this court has identified in past cases, continue. Because of the need to accord particular weight to general deterrence, the mitigating circumstances personal to the appellant have to be accorded less weight. There is no feature of the appellant's offending or the mitigating factors which could reasonably justify the imposition of a suspended term of imprisonment. In our view, the appellant has failed to establish that the sentencing judge's decision not to suspend the term of imprisonment was not reasonably open. Nor has it been established the length of the sentence was excessive. Having regard to all relevant sentencing factors, the term of 18 months' immediate imprisonment was not unreasonable or plainly unjust. It was not manifestly excessive. Neither proposed ground 2 nor proposed ground 3 has a reasonable prospect of success.

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

[21] Cartwright v The State of Western Australia [2010] WASCA 4.

[22] The State of Western Australia v Johnson [2010] WASCA 187 [25].

[24] The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198.

[26] Bailey v The State of Western Australia [2016] WASCA 10.

[27] Bailey v The State of Western Australia [16].

[28] Bailey v The State of Western Australia [16].