Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - State appeal against sentence - Possession of a prohibited drug with intent to sell or supply - Error in imposing conditional suspended sentence - Turns on own facts

Criminal Appeals Act 2004 (WA), s 41(4)(b)

Misuse of Drugs Act 1981 (WA), s 6(1)

Set aside orders conditionally suspending the terms of imprisonment imposed on the respondent

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

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

The State of Western Australia v Wallam [2008] WASCA 117

1 McLURE P: This is a State appeal against sentence. On 4 June 2010 the respondent was convicted on his fast-track plea of guilty of two counts of dealing in prohibited drugs contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA) (the Act).

2 The facts of the offending are as follows. On 25 September 2009 the respondent supplied 20 MDMA (ecstasy) tablets to an associate (count 1). On 28 October 2009 the respondent was a passenger in a vehicle which was stopped by police. The respondent was taken into custody. When searched, police located 27.8 g of cocaine with a purity of 28% inside a plastic bag wrapped in a kitchen towel which was located in the respondent's underwear (count 2).

3 On 11 June 2010 Groves DCJ sentenced the respondent to 6 months' imprisonment on count 1 and 30 months' imprisonment on count 2. The sentencing judge ordered that the sentences be served cumulatively resulting in a total sentence of 3 years' imprisonment.

4 The respondent also pleaded guilty to three charges of dealing in a prohibited drug contrary to s 6(1) of the Act which charges were the subject of a s 32 notice. The facts of that offending are as follows. On 19 September 2009 the respondent offered to supply to his girlfriend 15 ecstasy tablets for an upcoming music event. On 7 October 2009 the respondent supplied 3.5 g of cocaine to another. On 29 October 2009 police searched the respondent's vehicle and located 10 MDMA tablets weighing 2.5 g secreted beneath a cover in the central console. On 11 June 2010 Groves DCJ sentenced the respondent to terms of imprisonment of 6 months, 12 months and 12 months respectively for these offences. He ordered those sentences to be served concurrently with all the other sentences he imposed, resulting in a total effective sentence of 3 years' imprisonment which was suspended for 2 years on condition that the respondent meet programme and supervision requirements.

5 The sole ground of appeal is that the sentencing judge erred by conditionally suspending the total term of 3 years which resulted in a sentence that was so inadequate as to manifest error having regard to the standards of sentencing customarily observed for offences under s 6(1) of the Act.

6 It was common ground that the double jeopardy principles had no application to this State appeal: s 41(4)(b) of the Criminal Appeals Act 2004 (WA); The State of Western Australia v Wallam [2008] WASCA 117 [29], [54].

7 The sentencing judge found that the respondent was a courier of prohibited drugs for reward.

8 The respondent was aged 23 at the time of his offending. He had a minor record of prior offences, none of which involved dealing in prohibited drugs. He had a stable and supportive upbringing, left school after year 10 and commenced a four-year plumbing apprenticeship. In the second year of his apprenticeship he moved to New South Wales to play rugby league. He was an outstanding sportsman and became captain of the Australian under 18 rugby league team. He commenced using cocaine recreationally during the rugby league off season in New South Wales. At the end of 2007 the respondent injured his shoulder and returned to Perth to have a shoulder reconstruction. He was prescribed steroids by a general practitioner. Although his shoulder healed he did not return to rugby league. He used cocaine and steroids until he was charged with the current offences. The respondent attended a drug counsellor at Cyrenian House prior to sentencing.

9 The respondent was in employment at the time the offences were committed. It is apparent from a reference provided by his employer that he was, and continued to be, a highly valued employee. Other character references were before the sentencing judge, including a letter from the respondent's parents. The sentencing judge accepted their view that the greatest punishment for the respondent had been looking at the faces of his devastated parents and girlfriend. The sentencing judge continued:

The shame, the embarrassment which that has all brought, is perhaps something more than any punishment that I might impose upon you, because you know that they are there for you and you are close to them (ts 33).

10 I infer the judge is referring to the effect on the respondent of seeing the consequences of his criminal conduct on those closest to him. Offending caused emotional distress, shame or embarrassment suffered by an offender's family is not itself ordinarily relevant in the exercise of the sentencing discretion: The State of Western Australia v Johnson [2010] WASCA 187 [11]. Moreover, the offender's grief for the distress he has caused to those close to him is of no relevance unless it reflects on his remorse or on the risk of him re-offending.

11 The sentencing judge relied on matters personal to the respondent in determining that it was appropriate to suspend the total term of imprisonment imposed for his offending. In particular, the sentencing judge emphasised the respondent's age, favourable antecedents, steps towards rehabilitation and strong family support.

12 The principles relevant to sentencing a person convicted of dealing in prohibited drugs contrary to s 6(1) of the Act and the comparable cases are set out in The State of Western Australia v Johnson [15] - [17] and [23] - [25]. For ease of reference I incorporate the relevant material here:

The relevant sentencing principles are not in dispute. This court can only intervene if the appellant establishes that the sentencing judge made an express or implied material error of fact or law in the exercise of the sentencing discretion. The State relies on implied error demonstrated by the nature and length of the total sentence.

In Cartwright v The State of Western Australia [2010] WASCA 4 [8] - [10] the relevant principles relating to suspension of a term of imprisonment were identified 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].'

It is the experience of the courts that illicit drugs cause or materially contribute to a very significant proportion of the criminal offences committed in this State, either as a result of users acting under their influence or because of the need to finance or secure a supply of drugs. There are often strong financial incentives to deal in prohibited drugs. Further, significant public resources are devoted to the difficult task of detecting and apprehending persons involved in the supply and distribution of illicit drugs. It is for these reasons that in sentencing for offences under s 6(1) of the Act, significant weight is given to general deterrence with the consequence that mitigating circumstances personal to the offender, including age and good character, are accorded less weight [17].

...

The overwhelming majority of offenders convicted of offences against s 6(1) of the Act are sentenced to terms of immediate imprisonment. As previously noted, the imposition of a suspended term is, as a matter of fact, exceptional. The number of suspended terms of imprisonment (conditional or otherwise) upheld or imposed on appeal in recent times can be counted on the fingers of one hand (Attenborough v The State of Western Australia [2005] WASCA 132; Samuel v The State of Western Australia [2004] WASCA 154; The State of Western Australia v Skaines [2006] WASCA 160; and The State of Western Australia v Marchese [2006] WASCA 153).

In Marchese, the respondent pleaded guilty to possession of 27.97 g of methylamphetamine and 2.06 g of MDMA with intent to sell or supply. He was sentenced to terms of imprisonment of 2 years and 16 months respectively, with the terms to be served concurrently and with the terms suspended for 2 years. The appellant had pleaded guilty on the fast track, was 24 years old, had no criminal record, supported his de facto partner and child and to some degree his mother. A significant delay between the imposition of the sentence and the hearing of the State appeal and the application of the double jeopardy principle were the determinative factors in this court's decision to dismiss the appeal.

... Youth (which term is 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: see Mishal v The Queen [2001] WASCA 328; Vogel v The State of Western Australia [2002] WASCA 261; Duong v The State of Western Australia (2006) 32 WAR 354; Jecks

v The State of Western Australia [2007] WASCA 111; Wong v The State of Western Australia [2004] WASCA 286; The State of Western Australia v Monro [2000] WASCA 285; Saxild; Dixon; Andela; RP v The State of Western Australia [2010] WASCA 75; Burke; Vagh; Lam v The State of Western Australia [2010] WASCA 61. It is not uncommon in this State for young persons of good character from advantaged backgrounds to engage in the distribution of prohibited drugs. Further, many of the youthful offenders in these cases had (after being charged) taken positive steps towards rehabilitation and were not found to be at any significant risk of re offending. The imposition of a term of immediate imprisonment in these types of circumstances reflect the significant weight accorded to the need for general deterrence and the prevalence of offending of this type among young people. The latter may have some correlation with the nature of the market for prohibited drugs [25].

13 Generally, drug dealers will not receive a suspended sentence unless the seriousness of the circumstances of the offending fall at the very low end of the scale. Having regard to the total quantity of drugs and frequency of dealing, the respondent's offending does not fall within that category. The suspension of the total sentence of imprisonment imposed on the respondent is inconsistent with comparable cases and the need for general deterrence. Suspended imprisonment is manifestly inadequate in this case.

14 I would uphold the appeal and set aside the orders conditionally suspending the terms of imprisonment imposed on the respondent. Subject to a reduction for any relevant time spent in custody, the total effective sentence is 3 years. The respondent will be eligible for parole after serving 18 months' imprisonment.