Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Possession of heroin with intent to sell or supply - Manifest excess

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a)

Sentencing Act 1995 (WA), s 9AA

9 months' imprisonment suspended for 12 months, subject to supervision and program conditions

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

Duong v The State of Western Australia [2006] WASCA 110

Ness v The State of Western Australia [No 2] [2013] WASCA 56

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

Tran v The State of Western Australia [2013] WASCA 77

Wilson v The State of Western Australia [2010] WASCA 82

1. McLURE P: Unlike Mazza JA, with whom Pullin JA agrees, I would dismiss this appeal. I can shortly state my reasons.
2. The sentencing principles relating to a contravention of s 6(1) of the Misuse of Drugs Act 1981 (WA) (MDA) are very well-known and do not require repetition. The effect of the application of those principles is, as a matter of fact, that a sentence other than immediate imprisonment is exceptional: The State of Western Australia v Johnson [2010] WASCA 187 [15] - [25].
3. The fact that an offender deals in small quantities of a prohibited drug at street level does not bring an offender within the exceptional category: Ness v The State of Western Australia [No 2] [2013] WASCA 56; Tran v The State of Western Australia [2013] WASCA 77; Duong v The State of Western Australia [2006] WASCA 110. If it were otherwise, offenders would organise their dealing activity to take advantage of that exception.
4. In the circumstances of this case, it is significant that the presumptive quantity of heroin for the purpose of s 11 of the MDA is 2 g and that possession of small amounts of heroin with intent to sell or supply, unlike other types of prohibited drugs, cannot be dealt with summarily.
5. The appellant was in possession of 1.38 g of heroin, 1.18 g of which was for personal use. The remaining 0.2 g was divided into five clipseal bags of varying weights. The sentencing judge found that it was the appellant's intention that the drugs in the bags be sold to be used by more than one person (ts 18). Based on the appellant's statements to police, she intended to profit from the sale transactions.
6. The sentencing judge did not make a positive finding as to whether the appellant's intention to sell the drugs in the bags was a one-off aberration or part of a broader course of conduct. The evidence on the subject was equivocal.
7. The appellant was aged 36 at the time of the offence. She had prior convictions for possession of stolen property, fraud and possession of a prohibited drug. The appellant has a long-standing and entrenched addiction to prohibited drugs. Her drug use started at the age of 15 and by 18 she was using heroin. But for periods of abstinence in 1995, 2004 and 2009, her drug use has continued. It has had serious consequences for her and her family. She and her partner, who also has a significant history with prohibited drugs, have three children all of whom are in the care of third parties.

1. Following her arrest for this offence, the appellant was motivated and took positive steps to address her drug addiction. The sentencing judge found that if she was successful in overcoming her addiction she would not distribute prohibited drugs in the community (ts 19).
2. There is nothing in the circumstances of the offender or the offending to support a conclusion that the sentencing judge erred in imposing a term of immediate imprisonment of 9 months.
3. PULLIN JA: I agree with Mazza JA
4. MAZZA JA: This is an appeal against sentence. The appellant pleaded guilty on the fast-track system to one count of possession of heroin with intent to sell or supply it to another, contrary to s 6(1)(a) 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. On 6 August 2013, the appellant was sentenced to 9 months' immediate imprisonment. She was subsequently granted bail pending appeal.
5. The appellant appeals by leave of this court on two grounds. They essentially amount to the same thing. It is, in effect, alleged that the sentence of immediate imprisonment was manifestly excessive in that the wrong kind of sentence was imposed. It is submitted that the only appropriate sentence in all of the circumstances of the case was a term of conditionally suspended imprisonment.

1. The appellant is a heroin addict who was, at all relevant times, living and working in Carnarvon.
2. On Saturday 10 November 2012, the appellant and her partner drove from Carnarvon to Fremantle. The purpose of the journey was to enable the appellant to visit her children who were, at the time, residing with her mother. Her mother refused to allow the appellant contact with her children. As a result, she became emotionally upset. In that state, she purchased approximately 1.5 g of heroin for $900 (AB 67). Her intention was to use the heroin herself and perhaps give some to her partner, who was also a heroin user.
3. The appellant and her partner drove back to Carnarvon. On the way, the appellant sent text messages to some of her friends, indicating

that she had some 'goodies' for them. However, his Honour found that the 'goodies' she referred to was not the heroin.

1. On 12 November 2012, police officers executed a search warrant at a lunch bar where the appellant was employed. In the appellant's handbag, the police found a ring box in which was discovered a small plastic bag that later analysis showed contained 1.18 g of heroin. The appellant then told the police that she had more of the drug in a lipstick case which she had placed behind a large stove in the kitchen area. An examination of the lipstick case showed that in it were five small plastic bags, each of which contained between 0.02 g to 0.06 g of heroin with a total weight of 0.2 g.
2. The appellant admitted to the police that all the heroin belonged to her. In essence, she told the police that the larger quantity found in the ring box was for her own use, but she admitted that she intended to sell the five small plastic bags to her friends. She said that she would have sold the smaller bags for $50 and the larger bags for $100. The total amount of money she intended to make from the sales was between four and five hundred dollars.
3. A subsequent search by the police of her home did not reveal anything of note. None of the common indicia of drug dealing was found either there or at her place of work. The appellant was cooperative with the police. In addition to telling the officer where the lipstick case was, she provided a written statement admitting her offending and naming a person who had telephoned her to 'score' a small amount of heroin from her.

1. At the time of sentencing, the appellant was 36 years of age. The appellant had been a victim of sexual abuse from the age of 4 to 9 years. When she was 7, her mother and father separated, due to family violence allegedly perpetrated by her father against her mother. She completed her education at year 11 and appears highly motivated towards employment.
2. Since the age of 15, she has been involved in the use of illicit substances. At the age of 18, she was introduced to heroin. Although there have been periods of abstinence from illicit drugs, heroin has proved to be her downfall.
3. The appellant and her current partner have had four children. The first child passed away in 2001, while their other children, one of whom is autistic, live away from them, principally because of their drug use.
4. It is clear that the appellant's drug abuse is linked to her disturbed childhood. Since her arrest for the present offence, the appellant has engaged in counselling with the Midwest Community Drug Service Team in Carnarvon. The evidence before his Honour was to the effect that she had 'already made significant progress', but it must also be said that the appellant had sought to manage her illicit substance abuse in part with increased alcohol consumption. The reports also recognise that the appellant has underlying treatment needs to address her difficult personal history. The author of the pre-sentence report was of the opinion that unless these issues were addressed in a meaningful way, she presented as being significantly at risk of resuming her consumption of illicit substances. The author of the pre-sentence report assessed her as being suitable for a community based disposition.
5. The appellant has a relatively short record of convictions commencing in 2008, comprising of mostly traffic convictions and minor offences for dishonesty. In February 2011, she was fined for possession of a prohibited drug. She has never previously been sentenced to a term of imprisonment.

1. Defence counsel in his plea in mitigation submitted that the appropriate sentence was a conditional suspended imprisonment order. The prosecutor submitted that the only appropriate sentence was a term of immediate imprisonment.
2. His Honour found that when the appellant obtained the heroin in Fremantle she had intended to use it herself. He found that when she returned to Carnarvon she was put under some pressure by another heroin user to sell some of the drugs. He found that as a result of that pressure, she agreed to sell some of the drugs that she had originally intended to use herself, namely the five small packets the police discovered in the lipstick case, weighing in total 0.2 g. His Honour rejected a submission put on behalf of the appellant that she intended to sell the bags to a person known as Joe. Instead, he found that the bags would be sold to more than one person.
3. His Honour recognised the appellant's fast-track pleas of guilty. He described her as being 'truthful' with the police. He reduced the sentence he would otherwise have imposed pursuant to s 9AA of the Sentencing Act 1995 (WA) by 25%, the maximum allowable.
4. The learned sentencing judge acknowledged the appellant's antecedents. He described them in this way:

You have had a life of considerable hardship. You've been the victim of serious crimes that commenced when you were just a young child and, as a result, you've had considerable difficulties in your life and you've become vulnerable to drugs, once you were introduced to them and you developed longstanding drug addiction (ts 18).

1. His Honour found that the appellant was genuinely motivated to cease taking drugs and he recognised that she had taken positive steps in this regard. He accepted that personal deterrence was not a significant sentencing factor (ts 19).
2. His Honour observed that heroin was an extremely dangerous drug which caused great damage to the community. Because of this and because of the need to protect the community and deter others who might be tempted to distribute drugs, a term of imprisonment was the only appropriate disposition. He expressly considered whether that term of imprisonment could be suspended. His Honour decided that it would not be appropriate to order suspension of the term because of 'the seriousness of the offending and the need for general deterrence' (ts 20).

1. The general principles relating to appeals against sentence are well known and well accepted. They were accurately and succinctly described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2] and need not be repeated.
2. The grounds of appeal allege implied error. In order to succeed, the appellant must demonstrate that the sentence she received was, having regard to all of the circumstances, unjust and unreasonable.

1. To determine whether a sentence is manifestly excessive, the sentence must be viewed from the perspective of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of that type and the personal circumstances of the offender.
2. The maximum penalty for the offence of possession of heroin with intent to sell or supply is 25 years' imprisonment and/or a fine of $100,000: Misuse of Drugs Act s 34(1)(a).
3. The relevant sentencing principles in respect of suspended sentences for serious drug offences were explained by McLure P with whom Owen and Wheeler JJA agreed 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].

1. There are few comparative cases concerning a single offence of drug dealing involving small amounts of heroin. They were recently collected and discussed in Ness v The State of Western Australia [No 2] [2013] WASCA 56.
2. In that case, the appellant, a 39-year-old heroin addict with only minor prior convictions, was found in possession of 0.03 g of heroin. The investigating officers discovered electronic scales and text messages were seen on the appellant's phone which showed she was an active, low level drug dealer. After the appellant was arrested, she continued to use cannabis and methylamphetamine and associate with negative peers. She was not completely cooperative in the preparation of her pre-sentence report. The author of that report questioned her ability to comply with the conditions of a community based disposition. She was considered a marginal candidate for such a disposition. The majority (McLure P and Buss JA) emphasised that the offending was not a 'one-off' occurrence or an uncharacteristic aberration. Had it been so, the sentence would have been manifestly excessive. Buss JA said:

A drug dealer (including an active low level dealer) will not ordinarily, as a matter of fact, receive a lesser type of sentence than a term of immediate imprisonment because on the occasion he or she was apprehended the dealing involved a very small quantity of a prohibited drug [34].

1. The present case is distinguishable from Ness because there is no evidence that the appellant committed the offence for which she was convicted in the context of ongoing drug dealing.
2. In my opinion, the present case has a number of exceptional features which, in combination, have led me to the conclusion that it was unjust and unreasonable to impose an immediate term of imprisonment upon the appellant. Those exceptional reasons are:
   1. The very low quantity of heroin which the appellant intended to sell or supply.
   2. The offence was not committed in the context of ongoing drug dealing.
   3. The appellant had not purchased the drug with the intention to sell or supply it.
   4. The appellant only agreed to sell or supply part of the heroin she had after being placed under pressure to do so by a fellow user.
   5. The appellant cooperated fully with the police.
   6. She pleaded guilty at the first available opportunity.
   7. She has engaged in rehabilitation with some success and appears committed to such a course.
   8. The need for personal deterrence was not a significant sentencing factor; and
   9. While it cannot be ignored that there was a commercial aspect to the offending, the financial gain was modest.
3. None of these factors alone would have caused me to allow this appeal. I wish to stress that it is the combination of them that has led me to the exceptional conclusion that the sentence of immediate imprisonment was unjust and unreasonable.
4. For these reasons, and with great respect to the learned sentencing judge, the sentence of 9 months' imprisonment was, in all of the circumstances, manifestly excessive. I would set aside the term of immediate imprisonment and impose a term of 9 months' imprisonment to be suspended on condition that she is subject to supervision and program conditions for 12 months.

1. I would make the following orders:
   1. The appeal is allowed.
   2. The sentence imposed by Martino CJDC is set aside.
   3. The appellant is sentenced to 9 months' imprisonment suspended for 12 months and she shall be subject to supervision and program conditions.