Court of Appeal (WA)|2001-04-12|Before: Wallwork J, Kennedy J, Grove AJ

Brittain v The Queen [2001] WASCA 117 (12 April 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BRITTAIN -v- THE QUEEN [2001] WASCA 117

Criminal law - Sentencing - Possession of cocaine and ecstasy with intent to sell or supply - Offender intended to sell portion of the drugs to finance his own use - Portion of the drugs for his own use - Offender now drug free - Whether suspended term of imprisonment appropriate

Two sentences reduced from 7 years imprisonment to 3 years imprisonment concurrent

Collins v The Queen (1993) 67 A Crim R 104

Crutch v The Queen [1999] WASCA 187

Giannopoulos v The Queen [2000] WASCA 396

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Wagenaar v The Queen [2000] WASCA 325

Watson v The Queen [2000] WASCA 119

1 KENNEDY J: I have had the opportunity of reading in draft the reasons to be published by Wallwork J. I am in agreement with those reasons and with the orders his Honour proposes.

2 WALLWORK J: The applicant came before this Court on 23 March for the hearing of submissions as to the correct sentence to be imposed upon him after he had successfully applied for leave to appeal against two sentences of 7 years imprisonment, which had been imposed upon him in the District Court in Perth. Those sentences had been imposed for two offences, the first being him having possession of a quantity of cocaine with intent to sell or supply and the second, him having possession of ecstasy with intent to sell or supply. The two terms of imprisonment of 7 years each had been ordered to be served concurrently. The reasons for allowing the application for leave to appeal are in the judgment of this Court which was delivered on 23 March.

3 At the time of the offences the applicant had been working in a nightclub. He had paid $3,000 for the drugs in question. Both quantities of the drugs were over 13 times the amount prescribed in the Misuse of Drugs Act 1981 which was 2 grams. It was submitted on sentencing that the verdicts which the jury had returned after a trial at which the applicant had pleaded not guilty, meant that the applicant had intended to sell or supply only a part of the quantity of the drugs which had been found in his possession, and not necessarily a quantity approaching the whole of the drugs. The learned trial Judge had told the jury that the central issue they had to determine was whether the applicant had had the intention to sell or supply "any part of that substance" to another person or persons. The Judge had also told the jury:

"It may well have been, and the Crown was submitting to you, an attractive proposition to Mr Brittain to sell some of the cocaine and ecstasy, not only to repay the money that he owed to Gary for these drugs but also to reduce his credit card debt."

4 Counsel for the applicant had submitted to the Judge that it was not known how much of the drugs the applicant had intended to sell or supply and that "if one is considering the appropriate standard of beyond reasonable doubt, then one could not conclude that he intended to sell or supply the whole of it or indeed intended to sell or supply half of it. All that can be said is that he intended to sell or supply a part of it."

5 After the applicant's appeal was allowed, submissions were made to this Court as to the correct sentence which should be imposed upon him.

It was submitted that "between 2 grams and 28 grams is the grey area to determine how much of that quantity was for his own use." It was also submitted that it was of significance that during the trial evidence had been given of a search of the applicant's car and his home. The results of those searches had indicated absolutely no indicia of drug trafficking or incretion of assets. It was submitted that after an investigation of the applicant's finances, it had been revealed that there had been a clear depletion of his assets consistent with the proposition advanced by him in his evidence and in mitigation, that he had been expending large amounts of his own money in pursuit of his drug use; that on the morning of the day he was found in possession of the drugs in question, he had withdrawn $3,000 in cash from a bank by the use of his credit card in order to make the purchases of the drugs which he was later convicted of being in possession of with intent.

6 The applicant had been apprehended after he had attended the premises of a drug dealer who had been under surveillance by undercover police officers. When he left those premises he was followed and apprehended in a carpark of a hotel in Leederville.

7 At the hearing before this Court counsel contended that part only of the drugs found in his possession were for the purposes of sale or supply and that part were for his own use. It was said that this Court should take notice of the fact that habitual drug users often resort to selling quantities of drugs in order to support their own habit and that that was the situation in this case. Importantly, it was submitted:

"If one takes the view that he wanted to reimburse himself with the price that he had paid, the $3,000 that he paid, one could extrapolate, 'if he was going to use some of the substance, then maybe if he was going to sell half of it that would then finance his use of the other half', but that of course is speculation in some respects. But if one accepts the course of conduct of people who are habitual drug users of a similar vein, then that would probably be a finding that would be consistent with the evidence. Beyond that I can't postulate any other basis upon which your Honours could determine the quantity involved."

"This is a case where the only basis upon which the Court can re-sentence is that the applicant intended to sell or supply part of the drugs possessed and that he intended to use part of the drugs possessed and we say that it is not possible to quantify with any precision how much he intended to use and how much he intended to sell or supply."

9 Counsel for the DPP submitted that the DPP "would be happy to proceed on the basis of half and half - half for his own use, half for sale - given the difficulties that arise with this fact finding exercise. I have thought about the matter at some length and I just can't see any way of resolving it."

10 The applicant was found in possession of 27.7 grams of cocaine at 33 per cent purity and 29.37 grams of ecstasy tablets, ranging from 34 per cent to 41 per cent purity. In my view it can be assumed for the purposes of sentencing that the applicant intended to sell up to 13 grams of cocaine and 14 grams of ecstasy.

11 It was submitted to this Court that because of the applicant's exceptional and successful efforts to cease any drug taking at all, and also his good background apart from this episode of drug dealing, this Court should suspend any sentence it imposed for the two relevant offences.

12 It was conceded for the DPP that the head sentence of imprisonment for both offences which had been 7 years imprisonment, should be reduced to less than 5 years imprisonment. However, it was submitted that the sentence should not be suspended due to the serious nature of offences involving the selling of the drugs cocaine and ecstasy. It was submitted that ecstasy is one of the amphetamines group and the distribution of it is now regarded as being at the higher end of the scale of seriousness and in the same category as heroin and cocaine - Darwell v The Queen (1997) 94 A Crim R 35 at 40. It was further submitted that the major sentencing considerations for offences of this nature are general and personal deterrence, with the main objective being to stop people selling the drugs - R v Bellissimo (1996) 84 A Crim R 464 at 471.

13 It was agreed by the DPP that after his arrest the applicant had performed very meritoriously in tackling his drug addiction. It appears from a report dated 22 September 1998 that following his arrest and referral to the Court Diversion Service for assistance, the applicant's performance had been impeccable. He had been initially tested three times a week. The testing had continued after he had been referred to a drug centre on 23 July 1998. It is said in a report that "since then his attendance at outpatient counselling and for urinalysis has been impeccable. During his formal engagement with CDS he has provided 25 samples all of which tested alcohol and drug free." He was then self-employed and working long hours "although to his credit he has placed drug treatment as a priority and his total compliance is extremely encouraging."

14 Nine months after that report and on 24 June 1999 it was reported that the applicant "has performed over and above all expectations, demonstrative of his deep commitment to get his life back into some order and to resume the life of a law abiding citizen. This Mr Brittain has achieved by his hard work and deep commitment to changing unacceptable behaviour. Throughout his engagement at the Palmerston Centre Mr Brittain was actively involved in counselling which is documented in the attached report from that drug treatment agency. Throughout the months he underwent urinalysis testing, all of the results were drug and alcohol free."

15 This Court was told that since his imprisonment in November 2000 the applicant has done everything expected of him in prison and that he has continued his drug rehabilitation and his education. The business which he commenced after his arrest is being carried on by his fiancee. He intends to marry when he is released from prison. It was submitted that he is now drug free and "his progress in terms of the counselling and his recognition of the problems he had, and his understanding of what the triggers were, resulted in the authors of those reports forming the view that in fact this man was cured; "this man was rehabilitated from his drug addiction."

16 It was submitted for the applicant that this case was an unusual case in that there had been a lengthy and effective period of rehabilitation prior to the applicant being sentenced. Reliance was placed on R v Duncan (1983) 47 ALR 746 for the proposition that where prior to sentence there has been an effective period of rehabilitation which indicates that an offender is not a danger to the community, then in general that process of rehabilitation ought not to be interrupted by a sentence of imprisonment. It was submitted that in this case the sentence should be suspended due to the successful and substantial rehabilitation of the applicant.

17 In my view it can be accepted that the applicant has done everything within his power to rehabilitate himself and that he has been successful in this regard. The question is whether or not in the circumstances a sentence of imprisonment must be imposed for the offences of selling drugs or whether it should be suspended.

18 The question of the suspension of sentences of imprisonment was discussed recently in this Court in Latham v The Queen, [2000] WASCA 338. In his reasons for decision in that case Parker J, with whom the other two members of the Court agreed, referred to the recent decision of the High Court in Dinsdale v The Queen [2000] HCA 54; (2000) 175 ALR 315. Parker J said:

"...the same considerations that are relevant to the imposition of a term of imprisonment are to be revisited in determining whether to suspend that term. It would appear that 'double weight' may thus be attributed to factors relevant to the offence and to the offender - whether aggravating or mitigating - which may influence or determine the decision whether to suspend the term of imprisonment..."

"If this view be correct it remains fundamentally important, however, that the sentencing Court respect the injunction of s 39(3). The Court must not impose a term of imprisonment which is not suspended, that is which is to be served immediately, unless satisfied that a sentence of suspended imprisonment is not appropriate."

20 When considering in this case whether a sentence of suspended imprisonment is not appropriate, regard must be had to previous decisions concerning the sale of drugs such as heroin, cocaine and ecstasy.

21 In Loh v The Queen, unreported; CCA SCt of WA; Library No 940508; 16 September 1994 Malcolm CJ, with whom the other two members of the Court agreed, said at 12 of his reasons:

"In my opinion, it must be taken that the learned Judge, with all of his accumulated experience, was fully aware of the totality principle. This may be inferred from the fact that, taken individually, the sentences of imprisonment for 2 years for each of the counts of selling half an ounce of heroin and the sentence of 3 years for supplying an ounce of heroin were extremely moderate sentences to be imposed in the case of a professional drug dealer involved in the sale of heroin purely for profit."

22 In R v Dao, unreported; CCA SCt of WA; Library No 980619; 29 October 1998 Pidgeon J, when discussing the maximum penalty relating to the sale of all prescribed drugs (except cannabis), said that weight must be given to the maximum penalty of 25 years imprisonment and to the view that both the legislature and the community take in respect of the distribution of drugs of addiction. His Honour said:

"The first indictment showed a systematic selling in an area frequented by young persons. Such conduct can be expected to attract an overall term upwards of 4 years imprisonment."

23 In Corrigan v The Queen, unreported; CCA SCt of WA; Library No 980700; 7 December 1998 Kennedy J said:

"It was pointed out in Noonan v The Queen, unreported; CCA SCt of WA; Library No 7818; 4 September 1989 ...that while an offender's addiction is a matter which arouses sympathy, it does not entitle him or her to any less punishment than a person who is not. As an addict, it was said, the applicant was in a position to appreciate the misery which the distribution of drugs spreads within the community, citing King J in The Queen v Spiero (1979) 22 SASR 543 at 549."

24 The matter was further discussed in The Queen v Ruich [2000] WASCA 84.

25 In this case reference was made by counsel for the applicant to the case of R v Weston [2000] WASCA 389 where a term of imprisonment had been suspended for a person who had been selling amphetamine. However, the circumstances of that case were most exceptional. The offender had had particular personality problems which had resulted in him committing offences when telephoned by undercover officers. In my view the circumstances in this case are not similar to those in Weston and the applicant should be treated as a person who was using drugs and with knowledge of the problems caused in this community by the sale of drugs, he intended to sell them into the community.

26 The applicant has made, in the words of the authorities, impeccable efforts to rid himself of his drug problem. He is to be commended for that. He is also to be given recognition in the sentence for those efforts and his rehabilitation. However, in my view, the offences must result in an immediate prison sentence, although it should be shorter than would normally be imposed for offences of this nature.

27 I would sentence the applicant to 3 years imprisonment for each of the two offences and order that the sentences be served concurrently and to commence from 30 October 2000, as did the previous sentences which were imposed upon him. The applicant would be eligible for parole.

28 With respect to the two concurrent sentences of 6 months imprisonment each for the offences of possession of methylamphetamine (0.45 grams of powder) and cannabis material (16 grams), although those sentences have now been served I would reduce the sentence for the possession of amphetamine to one of 4 months imprisonment and that for the cannabis to one of 2 months imprisonment, and order that both sentences be served concurrently with one another and concurrently with the two three year terms of imprisonment which will commence from 30 October 2000.

29 GROVE AJ: I have had the benefit of reading the reasons of the Hon Justice Wallwork. I agree with those reasons and have nothing further to add.

Brittain v The Queen [2001] WASCA 117

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Judgment (49 paragraphs)

Brittain v The Queen [2001] WASCA 117 (12 April 2001)

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Cases Cited (5)