Criminal law - Appeal against sentence - Possession of prohibited drug with intent to sell or supply - Whether conditionally suspended sentence manifestly inadequate - Fact-finding process in sentencing - Turns on own facts

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

Order conditionally suspending imprisonment set aside

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

Coleski v The State of Western Australia [2008] WASCA 260

Fogg v The State of Western Australia [2011] WASCA 11

Holden v The State of Western Australia [2011] WASCA 238

Karakuyu v The State of Western Australia [2012] WASCA 75

Leonard v The Queen (Unreported, WASCA, Library No 990152, 29 March 1999)

Lynch v The State of Western Australia [2011] WASCA 243

Mishal v The Queen [2001] WASCA 328

Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305

Ricciardi v The State of Western Australia [2012] WASCA 106

Sabri v The State of Western Australia [2012] WASCA 71

Siskopoulos v The State of Western Australia [2006] WASCA 225

Staker v The State of Western Australia [2012] WASCA 63

The State of Western Australia v Berlingeri [2011] WASCA 242

The State of Western Australia v Higgins [2008] WASCA 157

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

The State of Western Australia v Richards [2008] WASCA 134

Vogel v The Queen [2002] WASCA 261

Wong v The State of Western Australia [2004] WASCA 286

1 McLURE P: This is a State appeal against sentence. The respondent was convicted on his fast-track plea of guilty of one count of possession of methylamphetamine with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). He was in possession of 26.6 g of methylamphetamine which was 17% pure.

2 The offence was committed on 21 June 2011 at South Kalgoorlie when the respondent, an Aboriginal man, was aged 26. On 30 January 2012, the respondent was sentenced by Staude DCJ to a term of imprisonment of 2 years, conditionally suspended for 12 months.

3 The sole ground of appeal is that the sentencing judge erred in imposing a sentence that is manifestly inadequate. The State contends the sentencing judge erred in failing to impose a term of immediate imprisonment. Although there is no direct challenge to the sentencing judge's fact-finding, it assumed some significance during the course of the hearing of the appeal.

4 The unchallenged facts are that at 3.50 pm on 21 June 2011, police officers executed a search warrant at a residence in South Kalgoorlie occupied by the respondent. During a search of the respondent police located a red Mentos tube in the right-hand front pocket of his jeans. The tube contained eight clipseal bags containing 26.6 g of methylamphetamine with a purity of 17%. The search also located numerous empty small clipseal bags and electronic scales in the house. During the search the respondent admitted to police that the drugs were his and that he intended to sell them. He told police he obtained the methylamphetamine on credit and that he would sell it in point quantities (that is, 0.1 g) for $50.

5 In the plea in mitigation, counsel for the respondent put forward a different version of the circumstances of the offending. She said:

[The respondent] was a very heavy user of amphetamine at that time and I am instructed by him that he, together with, if you like, his group of acquaintances at that time was using amphetamines fairly heavily and regularly and he did purchase and have in his possession this quantity of amphetamines.

A large portion of that would have been for his own personal use. There was to some extent some pooling of resources by his group of acquaintances to acquire the amphetamine in the first place and, obviously, it was split and on-sold simply to allow him to maintain his habit.

...

Clearly, some of it had to be on-sold ... because otherwise - and he would concede he had to sell sufficient to be able to make enough to buy, to purchase, but there was also an element of the pooling of resources between him and other friends (ts 9).

6 The prosecutor did not expressly take issue with the proposition that the respondent had purchased at least some of the drugs for, and with funds provided by, his acquaintances. The respondent's version of the facts given from the bar table was inconsistent with his admissions to police and also differed in some of its detail from that given by the respondent to the author of the psychological report.

7 After noting that the respondent was not apprehended actually offering or selling drugs, the sentencing judge observed to the prosecutor that he seemed to be basing his case on the respondent's admission that he sold drugs, to which the prosecutor responded:

The [S]tate would simply say that 26 grams is a very great deal and it speaks for itself. If it is consumed in point quantities, it is 260 servings, as it were, so the [S]tate says the amount speaks for itself (ts 13).

8 The sentencing judge accepted all the facts relied on by the respondent in mitigation and more. He accepted that the respondent committed the offence in order to fund his own heavy consumption of the drug. The sentencing judge's understanding of the respondent's version of events (which he subsequently accepted as 'highly likely') was that the way the respondent and the people that he was using drugs with would obtain drugs 'would be to put in money in order to purchase a large quantity which you would share, your role being to purchase the drugs with the money that others had contributed, and in return you would earn your share of the drugs, and this may go some way to explain why you had such a large quantity on you when the police apprehended you' (ts 17). The sentencing judge continued:

I am not satisfied that there was any serious or substantial element of commerciality in your dealing ... [I]t is highly likely that you were in fact simply the conduit of that quantity of drugs for the group of which you were then a member (ts 18).

9 The sentencing judge's findings as to the circumstances of the respondent's drug dealing go further than what was asserted by the respondent's counsel from the bar table. Counsel's plea went no further than some of the drug was for the respondent's personal use, some was purchased for his acquaintances with pooled funds and some was for sale by the respondent.

10 The respondent's personal circumstances are as follows. He was raised within a supportive family environment which was free from alcohol abuse and domestic violence and had a relatively minor record of offending. He had two convictions for common assault, one for disorderly behaviour and a number of driving related convictions. The respondent left school in Year 10. He was employed in the mining sector as a highly paid dump truck operator until 2008 when he lost his driver's licence due to an alcohol-related driving conviction. The respondent's relationship with the mother of his children also came to an end in 2008. As a result of losing his employment, he lost the family home and the family vehicles were repossessed. Following the events in 2008, the respondent's alcohol and drug use escalated.

11 By the time of sentencing, the respondent had attended six counselling sessions, had ceased using drugs and had again obtained employment in the mining sector as a dump truck operator. His references disclose that he is held in high regard by his employer and co-workers.

12 The sentencing judge explained his decision to suspend the term of imprisonment as follows:

In your case, having regard to your youth, your relatively good prior record which includes no drug-relating offences, your remorse and your rehabilitation to date and the scale and nature of your offending, I am of the view that it would be inappropriate not to suspend the term.

In coming to this view, I am satisfied that your case is exceptional, not by reason of any one feature or even a particular number of features of the circumstances of it, but by reason of the combined effect of all of the relevant sentencing factors which is such, in my opinion, as would make immediate imprisonment not only a harsh disposition but one which is contraindicated in the circumstances.

If one balances the good prospects of rehabilitation in terms of your staying off drugs and not reoffending, enhanced as they would be by a conditional suspended imprisonment order against other sentencing considerations, principally personal and general deterrence, it seems to me to be rational to conclude that the interests of the community lie in your being given a chance to demonstrate by compliance with a conditional suspended imprisonment order that you can remain clean and law-abiding.

Whilst this is a merciful approach, it is also reasonable in terms of sentencing objectives (ts 19 - 20).

13 In Staker v The State of Western Australia [2012] WASCA 63 this court expressed its concern about the failure of prosecutors to seek a trial of issues in appropriate circumstances in sentencing proceedings. The court said:

[I]t is appropriate to record that this court has observed a recent trend in which facts asserted on behalf of an offender are accepted without challenge by the prosecution. That is occurring even in cases where the facts are mitigatory (so the onus of proving them rests on the offender) and there is no apparent basis for making the concession. Sentencing judges are too often left to raise and deal with objectively implausible mitigating circumstances [36].

14 See also Ricciardi v The State of Western Australia [2012] WASCA 106 [18]; Holden v The State of Western Australia [2011] WASCA 238 [9]; Sabri v The State of Western Australia [2012] WASCA 71; Karakuyu v The State of Western Australia [2012] WASCA 75 [14].

15 Ordinarily, there should be a trial of issues where there is a material inconsistency between the objective facts and circumstances (including inferences and admissions against interest) and mitigating factors asserted on behalf of the offender.

16 In any event, the sentencing judge's findings concerning the circumstances of the respondent's drug dealing go beyond that contended for by counsel for the respondent from the bar table.

17 In all the circumstances, including the failure of the prosecutor to unequivocally challenge the facts asserted on behalf of the respondent, I propose to proceed on the basis of the facts as they were stated by the respondent's counsel at the sentencing proceedings, which went no further than there was some pooling of resources, some sales by the respondent and some of the drug was for his own use.

18 The relevant principles relating to suspension of a term of imprisonment are detailed in Cartwright v The State of Western Australia [2010] WASCA 4 [8] - [10] 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].

19 The sentencing judge has to be positively satisfied that suspension of the term of imprisonment is not appropriate before a term of immediate imprisonment can be imposed. Different types of sentences may be reasonably open in borderline cases: Fogg v The State of Western Australia [2011] WASCA 11.

20 Manifest inadequacy (like manifest excess) depends on establishing an implied error from the type or length of sentence imposed. When considering whether an implied error has been made, regard is had to the maximum penalty and standards of sentencing customarily imposed for the offence, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.

21 As to the sentences customarily imposed, I repeat what was said in The State of Western Australia v Johnson [2010] WASCA 187:

In ordering suspension in this case the sentencing judge emphasised the appellant's age and prior good character. 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 Munro [2000] WASCA 285; The State of Western Australia v Saxild [2008] WASCA 156; 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.

...

To suspend the term of imprisonment for the respondent's offending would be inconsistent with the standards of sentencing customarily imposed and undermine the courts consistent message to others contemplating the path taken by the respondent, which is that if you participate in the distribution of illegal drugs you should expect to serve time in prison [25], [27].

22 The conditional suspension of the term of imprisonment imposed on the respondent is inconsistent with the sentences of immediate imprisonment imposed in closely comparable cases, including: Mishal v The Queen [2001] WASCA 328; Vogel v The Queen [2002] WASCA 261; Coleski v The State of Western Australia [2008] WASCA 260; Leonard v The Queen (Unreported, WASCA, Library No 990152, 29 March 1999); Siskopoulos v The State of Western Australia [2006] WASCA 225; Wong v The State of Western Australia [2004] WASCA 286; Lynch v The State of Western Australia [2011] WASCA 243; The State of Western Australia v Berlingeri [2011] WASCA 242.

23 Counsel for the respondent placed some emphasis on the fact that the respondent was a rare success story in the indigenous community, with particular emphasis on his good employment history and relatively minor record of offending. He also had the inestimable benefit of a stable and supportive upbringing. However, as Brennan J said in Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305:

The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the even administration of criminal justice (326).

24 This principle has been applied and endorsed in the context of sentencing Aboriginal offenders: The State of Western Australia v Richards [2008] WASCA 134 [45]. The fact that the respondent's life conditions and circumstances are not the norm in indigenous communities is not a material fact that reduces his culpability for the offending.

25 The amount of methylamphetamine in the respondent's possession was significant, falling just short of the trafficable quantity (28 g) and 13 times more than the quantity giving rise to the presumption of intention to sell or supply. A comparison with comparable cases demonstrates that the purity of the drug in the respondent's possession is relatively high.

26 The quantity and purity of the drug is a significant sentencing factor because of its correlation with the extent of the potential harm to the community. The close association between the use of methylamphetamine and the commission of criminal offences is well recognised: The State of Western Australia v Higgins [2008] WASCA 157 [115].

27 The sentencing outcomes for drug dealing offences reflect the long established principle that significant weight is accorded to general deterrence with correspondingly reduced weight given to matters personal to the offender.

28 The sentencing judge in this case gave significant weight to matters personal to the respondent and to the sentencing objective of rehabilitation, with correspondingly reduced weight given to general deterrence. That is not in accordance with established sentencing principles, with the consequence that the sentencing outcome is unjustifiably inconsistent with the type of sentence customarily imposed. This is not a borderline case. The combination of mitigating factors in this case are not uncommon and are properly reflected in the length of the sentence. For these reasons, the sentencing judge erred in conditionally suspending the term of imprisonment imposed on the respondent.

29 I have had regard to the facts and circumstances recorded in a letter dated 20 April 2012 from the respondent's solicitors and references tendered at the hearing of the appeal in determining whether a different sentence should now be imposed and if so what. It remains the case that conditional suspension is not an appropriate sentencing option. I would not interfere with the length of the term of imprisonment.

30 I would allow the appeal and set aside the order made by the sentencing judge conditionally suspending the term of imprisonment. Thus, the respondent's sentence will be a term of 2 years' imprisonment. I would order eligibility for parole.