Criminal law - Application for leave to appeal against sentence - Possession of methylamphetamine with intent to sell or supply - Offence committed while on parole - Whether total effective sentence was manifestly excessive - Whether sentencing judge erred by not stating the head sentence before applying the discount under s 9AA of the Sentencing Act 1995 (WA)

Billing v The State of Western Australia [2017] WASCA 80

Greenland v The State of Western Australia [2017] WASCA 83

KAT v The State of Western Australia [2017] WASCA 11

Maric v The State of Western Australia [2015] WASCA 190

Stewart v The State of Western Australia [2014] WASCA 195

The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119

The State of Western Australia v Nillson [2017] WASCA 68

Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465

1 REASONS OF THE COURT: This is an application for leave to appeal against sentence.

2 On 13 January 2017, the appellant was sentenced in the District Court by Bowden DCJ to 2 years and 9 months' immediate imprisonment with eligibility for parole, having been convicted on his fast-track plea of guilty to one count of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).

3 The appellant relies upon two grounds of appeal. Ground 1 alleges that the sentence was manifestly excessive. Ground 2 alleges that the sentencing judge erred by not stating the head sentence before applying the discount under s 9AA of the Sentencing Act 1995 (WA).

4 In our opinion, neither ground of appeal has a reasonable prospect of succeeding. We would refuse leave to appeal in relation to each ground, with the consequence that the appeal is taken to have been dismissed.[1] Our reasons for these conclusions are as follows.

5 At 8.00 am on 9 August 2016, police officers executed a search warrant at the appellant's home in a suburb of Geraldton.

6 In the appellant's bedroom, on the bedside table, the officers found a clear plastic container, inside which was located 6.35 g of methylamphetamine with a purity of 81%. Police also located a set of digital scales, $500 in cash and a diary containing names, weights and money owing, apparently in respect of drug transactions.

7 The police also found, in the living room, two small clipseal bags under a seat cushion on the couch. These bags contained 0.2 g and 0.31 g of methylamphetamine respectively.

8 Defence counsel, in her plea in mitigation, disputed that the $500 in cash and the diary were connected with the alleged offence.[2] Ultimately, the appellant was not sentenced on the basis that these facts had been proved.

9 At the time of the commission of the offence, the appellant was on parole for similar offending. On 23 February 2015, the appellant was sentenced to 22 months' immediate imprisonment for the possession of approximately 20 g of methylamphetamine with intent to sell or supply it to another. On 31 October 2015, he was released on parole. The present offence was committed 12 days before the parole period expired. As a result of the present offence, the appellant's parole was cancelled and he was returned to custody on 24 August 2016, where he remained until he was sentenced.[3]

10 The appellant was 23 years of age at the time of the offence and 24 when he was sentenced. His parents separated when he was relatively young. He left home at the age of 14. The appellant has a good relationship with his parents, who are supportive of him.[4]

11 The appellant completed his formal education at the end of year 9. Prior to his parole being cancelled he was employed by his father as a furniture removalist.[5]

12 The appellant has a history of alcohol and illicit drug abuse. He commenced using methylamphetamine when he was 20 years of age. It was said on his behalf that, about one month prior to the commission of the present offence, he resumed recreational use of methylamphetamine, but very quickly he progressed to daily use of the drug.[6]

13 The sentencing judge was provided with references from the appellant's parents, who spoke highly of him,[7] and a letter from the Sun City Christian Centre in which it was said that a place was available for him in a residential rehabilitation program on a farm situated approximately 150 km from Geraldton.[8]

14 His Honour characterised the appellant as 'a low-level street dealer'.[9] It was accepted by his Honour that the appellant was using methylamphetamine and was selling the drug to pay for his habit.[10]

15 In relation to the plea of guilty, his Honour said:

Now, I accept that you pleaded guilty at the earliest reasonable opportunity and, accordingly, pursuant to s 9AA of the Sentencing Act I reduce the sentence I would have otherwise imposed by 25%.[11]

16 Having regard to the references he received, his Honour accepted that when the appellant was not using drugs he was 'quite capable of a law-abiding lifestyle'.[12] His Honour took into account that the appellant was prepared to seek counselling for his drug problem and to participate in the residential rehabilitation program under the auspices of the Sun City Christian Centre.[13] His Honour found that the appellant was 'motivated towards some form of rehabilitation'.[14]

17 His Honour accepted that, since the appellant's parole was cancelled, he had been 'a model prisoner'.[15]

18 His Honour described the fact that the appellant committed the offence on parole as an aggravating factor.[16]

19 His Honour referred to the need to impose a sentence that paid due regard to the need for general and personal deterrence.[17] With respect to the quantity of the drug, his Honour said:

I accept the quantity is not as high as is often seen in these courts, but, as I have said, you were a street-level dealer and that's the very thing that the legislation is designed to prohibit.[18]

20 His Honour considered that a suspended sentence was wholly inappropriate.

21 The general legal principles applicable to appeals against sentence are well-known and uncontroversial. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error usually involves mistaking the law or facts or taking into account an irrelevant factor. The appellant's second ground of appeal alleges an instance of express error. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Ground 1 alleges such an error. An appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently.[19]

Ground 2 - section 9AA of the Sentencing Act

23 Section 9AA of the Sentencing Act is as follows:

9AA**. Plea of guilty, sentence may be reduced in case of**

(1) In this section -

fixed term has the meaning given in section 85(1);

head sentence, for an offence, means the sentence that a court would have imposed for the offence if -

(a) the offender had been found guilty after a plea of not guilty; and

(b) there were no mitigating factors;

victim has the meaning given in section 13.

(2) If a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.

(3) The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.

(4) If the head sentence for an offence is or includes a fixed term, the court must not reduce the fixed term under subsection (2) -

(a) by more than 25%; or

(b) by 25%, unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.

(5) If a court reduces the head sentence for an offence under subsection (2), the court must state that fact and the extent of the reduction in open court.

(6) This section does not prevent the court from reducing the head sentence for an offence because of any mitigating factor other than a plea of guilty.

24 Any discount which a sentencing judge gives pursuant to s 9AA is from the head sentence. The head sentence is defined in s 9AA(1) to be the sentence that a court would have imposed if the offender had been found guilty after a plea of not guilty and there were no mitigating factors.

25 In two recent decisions of this court, KAT v The State of Western Australia[20] and Greenland v The State of Western Australia,[21] it has been held that s 9AA does not require a sentencer to expressly identify the head sentence.[22] Accordingly, his Honour did not err by failing to state the head sentence.

26 In his oral submissions, counsel for the appellant accepted the correctness of KAT v The State of Western Australia and Greenland v The State of Western Australia, but argued that his Honour did not make the reduction of 25% from the head sentence, as that term is defined in s 9AA(1) of the Sentencing Act. The appellant's counsel drew the court's attention to his Honour's statement, 'I reduce the sentence I would have otherwise imposed by 25%' and submitted, as we understand it, that, because his Honour did not expressly refer to the head sentence, this court should infer that the reduction was not made from the head sentence.

27 We do not accept this submission. His Honour's use of the words 'would have otherwise imposed' can only be reasonably understood as shorthand for the definition of the head sentence in s 9AA(1) and does not reveal any error in approach.

28 Ground 2 has no reasonable prospect of succeeding.

29 The appellant does not submit that the sentence was manifestly excessive because the wrong type of sentence was imposed. The appellant submits, having regard to the circumstances of the case and having regard to other sentencing cases decided by this court, that the length of the term of immediate imprisonment was too long and that this court should substitute a shorter term of immediate imprisonment.

30 To determine whether a sentence is manifestly excessive, it is viewed from the perspective of the maximum sentence for the offence (in this case a fine of $100,000 and/or 25 years' imprisonment), the place which the criminal conduct occupies in the scale of seriousness of offences of that type, the standards of sentencing customarily observed and the personal circumstances of the offender.

31 The major sentencing considerations for the offence committed by the appellant are, as his Honour stated, general and personal deterrence. The weight of the drugs in question is a matter of importance but is not, generally, the chief factor to be taken into account. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing and whether the offence was committed solely for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be of limited significance, though they are not completely irrelevant.[23]

32 As his Honour acknowledged, the amount of methylamphetamine the appellant possessed with an intention to sell or supply was not as high as is seen in other cases, but, nevertheless, the appellant was actively engaged in the distribution to others of methylamphetamine, a drug which has severe adverse consequences for those that take it and for the community generally. The fact that the appellant may have been motivated to deal in methylamphetamine to support his own drug habit is not a mitigating factor and does not reduce the seriousness of the offence. His Honour was correct to regard the offence as more serious because it was committed while the appellant was on parole. It is no answer to this to say, as the appellant's counsel did, that the breach occurred 12 days before the parole period expired. An offender's obligation not to commit an offence does not diminish as the parole period progresses. The appellant's antecedent criminal history shows that the present offence is not uncharacteristic of him and manifests a continuing attitude of disobedience of the law. It illustrates his moral culpability and highlights the need for personal deterrence.[24]

33 While the appellant's age, the support of his parents and his willingness to engage in rehabilitation were mitigating factors, they are of limited significance because of the need for general and personal deterrence.

34 The appellant's counsel submitted that the sentence that was imposed was 'out of kilter', having regard to other cases decided in this court and, in particular, Stewart v The State of Western Australia[25] and Maric v The State of Western Australia,[26] and the cases cited therein.

35 Of course, the range of sentences customarily imposed is only one matter for the court to consider in deciding whether a sentence is manifestly excessive. When considering such cases, it is necessary to keep in mind that the range of sentences that have been imposed in the past does not fix the boundaries within which judges must, or even ought to, sentence in the future. Each case must ultimately be determined on its own facts and circumstances.[27]

36 It is unnecessary to repeat the facts and circumstances of Stewart v The State of Western Australia and Maric v The State of Western Australia or the cases referred to in those decisions. It is true, as the appellant's counsel pointed out, that the quantity of methylamphetamine possessed by the appellant in the present case was less than in Stewart v The State of Western Australia and that the appellant received a higher sentence than the sentence imposed in that case. But as we have already said, the quantity of the drug is not the only factor to be taken into account. We reiterate that the appellant's offending was serious and was committed while the appellant was on parole in respect of a sentence imposed for the same offence. The appellant's antecedents were generally unfavourable. While the appellant pleaded guilty and there were some mitigating factors, having regard to the need to provide general and, in particular, personal deterrence, significant punishment was required.

37 In our opinion, having regard to all relevant sentencing considerations, it cannot be said that the sentence imposed by his Honour was plainly unjust or unreasonable. It was not manifestly excessive. Ground 1 has no reasonable prospect of succeeding.

38 As leave to appeal should be refused on both grounds 1 and 2, the appeal must be dismissed. The orders that we would make are as follows:

1. Leave to appeal on grounds 1 and 2 is refused.
2. The appeal is dismissed.

[1] Section 27(1), (2) and (3) Criminal Appeals Act 2004 (WA).

[19] Billing v The State of Western Australia [2017] WASCA 80 [29].

[20] KAT v The State of Western Australia [2017] WASCA 11.

[21] Greenland v The State of Western Australia [2017] WASCA 83.

[22] KAT v The State of Western Australia [91] - [97]; Greenland v The State of Western Australia [154] - [175].

[23] The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 119 [125].

[24] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 477.

[25] Stewart v The State of Western Australia [2014] WASCA 195.

[26] Maric v The State of Western Australia [2015] WASCA 190.

[27] The State of Western Australia v Nillson [2017] WASCA 68 [17].