Criminal law - Appeal against sentence - Possession of prohibited drug with intent to sell or supply - Offering to supply prohibited drug to another - Prohibited drug dexamphetamine - Total effective sentence of 2 years' immediate imprisonment - Manifest excess - Totality principle

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

CBA v The State of Western Australia [2013] WASCA 144

Darwell v The Queen (1997) 94 A Crim R 35

Dias v The State of Western Australia [2017] WASCA 49

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

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

Gaskell v The State of Western Australia [2018] WASCA 8

Robertson v The Queen (1989) 44 A Crim R 224

Skipworth v The State of Western Australia [2008] WASCA 64

The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302

1 JUDGMENT OF THE COURT: This is an appeal against sentence.

2 The appellant was convicted on his pleas of guilty of three counts of offering to supply a prohibited drug, namely dexamphetamine, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (MDA) (counts 1, 2 and 3) and one count of possession of a prohibited drug, namely dexamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) MDA (count 4).

3 Birmingham DCJ sentenced the appellant to a total effective sentence of 2 years' immediate imprisonment with eligibility for parole. The individual sentences that were imposed are as follows:[1]

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Offer to sell or supply a prohibited drug to another

Possession of a prohibited drug with intent to sell or supply it to another

4 The appellant relies on three grounds of appeal. Ground 1 alleges that the sentence on count 3 was manifestly excessive. Ground 2 alleges that the sentence on count 4 was manifestly excessive. Count 3 alleges that the total effective sentence infringed the first limb of the totality principle.[2] Leave to appeal has been granted in respect of these grounds.

5 For the reasons which follow, none of the grounds of appeal have been made out and the appeal should be dismissed.

6 The facts of the offending, details of the sentencing proceedings, the appellant's personal circumstances and details of two additional mitigating factors personal to him, and the submissions made by the appellant in this appeal, are set out in a confidential memorandum annexed to these reasons. The memorandum will be subject to a confidentiality order and will not be published, other than to the parties and their legal advisers.

Appeals against sentence: general principles

7 The following principles relevant to appeals on grounds of manifest excess and totality are well established.

(1) Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, 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.

(2) A ground of appeal alleging that a sentence is manifestly excessive asserts an implied error. In determining whether a sentence is manifestly excessive it is necessary to examine it having regard to the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind, and the personal circumstances of the offender.

(3) The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.

(4) When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.

8 It is well established that the major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight and purity of the drugs in question is not generally the chief factor to be taken into account in fixing a sentence. However, it is a matter of importance, in part, because it can be presumed that the greater the quantity and the purity, the greater the harm which may be done to the community. The nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally and whether the offending was committed for commercial gain are highly significant. Matters personal to an offender will almost always be subsidiary considerations but they are not completely irrelevant.

9 In Cartwright v The State of Western Australia,[3] McLure P, with whom Owen and Wheeler JJA agreed, set out the relevant principles with respect to the imposition of suspended imprisonment where serious drug offences of the kind committed by the appellant have been committed. Her Honour said:[4]

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]

10 The sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia;[5] Fogg v The State of Western Australia.[6]

11 The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v The Queen.[7] The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy.[8]

12 In order to demonstrate implied error where the sentencing judge has imposed a term of immediate imprisonment, the offender must show that it was not reasonably open to the sentencing judge to conclude that immediate imprisonment was the only appropriate sentencing option.

13 This is the first time that this court has been called on to decide a sentence appeal relating only to dexamphetamine. As will be seen, there have been other cases in which an offender has committed a number of offences concerning a number of illicit drugs including dexamphetamine. It was suggested in the court below and in this court that dexamphetamine is a less harmful drug than heroin, methylamphetamine and MDMA. This is because, unlike those drugs, dexamphetamine may legally be prescribed for therapeutic purposes and is manufactured to pharmaceutical standards. In light of this, it is necessary to recall what this court has said about the relevance of the degree of harm of a particular drug to the sentencing of an offender.

14 The maximum penalty prescribed by s 34(1)(a) MDA for the offences committed by the appellant is 25 years' imprisonment and/or a fine of $100,000. Leaving aside offences relating to cannabis (which have a lower maximum penalty), this maximum applies to a large number of drugs including those which this court most commonly deals with, namely, heroin, cocaine, MDMA (ecstasy) and methylamphetamine. As we have said, it also applies to dexamphetamine.

15 Prior to the decision of this court in The State of Western Australia v Higgins[9] (Higgins), the practice in this State had been to take into account, as a relevant sentencing factor, a drug's relative degree of harm. Thus, some cases decided before Higgins discussed the existence of a hierarchy of drugs based on what was understood to be their harmfulness. Although heroin and cocaine had always been regarded as at the high end of the hierarchy, methylamphetamine and MDMA were not so regarded.[10] This changed in 1997 following the decision of Darwell v The Queen,[11] where each of methylamphetamine and MDMA were categorised as being at 'the high end of the scale of seriousness in the hierarchy of prohibited drugs' and in the same category as heroin and cocaine.[12]

16 In Higgins, the State submitted that as a matter of the proper construction of the MDA, a harm-based assessment of a drug was an irrelevant consideration when sentencing an offender for an offence contrary to s 6(1) or 7(1) of the MDA. Steytler P, with whom McLure and Miller JJA agreed, held that although a drug's relative harm to users was not a mandatory irrelevant consideration, ordinarily it was not a factor to which much weight should or could be given.[13]

17 Having arrived at this conclusion, his Honour added:[14]

As the High Court pointed out in Adams, harm to users and society is a protean concept, with the social evils of trading in illicit drugs extending far beyond the physical consequences to individual consumers. The effect of a drug on a user is not one on health only. As the majority pointed out in Pidoto, drugs affect the user's behaviour and social interactions in a wide variety of ways. Those, in turn, have the capacity to affect persons around the user, and even the general community, in a wide variety of ways having different social and economic costs that are not easily measured, at least in the absence of evidence (which will alter as knowledge and circumstances alter).

Even harm to a user is not easy to assess. As the majority in Pidoto said ([20] - [22]), this might encompass such matters as the likelihood and speed of dependency, the difficulty involved in breaking that dependency, physical and psychological harm (an area that is constantly being re-assessed as new research becomes available), the social effects of dependency and the probable behaviour of users while under the influence of the drug.

It is important also to bear in mind that harm will vary with the strength of individual doses, something that will not always be known to the user, or even the dealer. Moreover, additives with which drugs are mixed may or may not themselves be toxic. Whether or not they are and, if so, to what extent, may also not be known to the user, or even the dealer. Also, the experience of the courts has been, and evidence in this case suggests, that there is an increasing tendency towards poly-drug use. If users can be persuaded to try one drug, they can often be persuaded to try another. Illicit drugs are sometimes taken to counteract the after effects of other illicit drugs. Dealers in drugs may deal in a range of different drugs, depending upon supply and demand.

Consequently, when regard is had to the factors that I have identified, in particular the uniform maximum penalties contemplated by the legislature (subject to the limited exceptions specified), it is difficult to imagine that the legislature could have intended relative harm to be a matter of much significance for sentencing purposes. Even if the legislature had no opinion on that issue, for the reasons I have given it is difficult to see how the courts could make any reliable assessment of relative harm without the benefit of extensive evidence. Moreover, the assessment would endure only for so long as the evidence remained unchanged. The primary objective underpinning the legislation is undoubtedly that of deterring those who trade in drugs and that consideration has, as I have stressed, always been accorded the greatest weight when sentencing drug offenders.

In the end, as I have earlier remarked, the real question is what sentence should be imposed by the court in respect of the particular offence before it, having regard to the maximum penalty provided for that offence and taking into account the circumstances of the offence (including prevalence) and of the offender and the need to deter those who traffic in any form of illicit drugs. (citations omitted)

18 The approach to be taken when an appellant challenges both an individual sentence or sentences on the ground of manifest excess and the total effective sentence on the ground that the totality principle has been infringed was recently explained by this court in Gaskell v The State of Western Australia[15] [54] - [60] (Buss P); [151] (Mazza & Beech JJA) It is unnecessary to repeat here what was said in that case. It is enough to say that in the present case, where the sentence on count 4 is equal to the total effective sentence, it is appropriate to deal first with the allegations of manifest excess in grounds 1 and 2 and then with the allegation in ground 3 that the total effective sentence infringed the first limb of the totality principle.

Were the sentences on counts 3 and 4 manifestly excessive?

19 As we have noted, the maximum sentence for an offence contrary to s 6(1)(c) MDA is 25 years' imprisonment and/or a fine of $100,000.

20 In each case, the appellant's offending behaviour was serious. At the time he committed the offences, he was a mature man. By virtue of his employment, the appellant, better than many in the community, must have appreciated the harm done by the illicit drug trade and that immediate imprisonment, as a matter of fact, was the usual punishment for such offending. Nevertheless, he chose to commit counts 3 and 4. These offences were not a single or isolated act, having regard to the facts of counts 1 and 2. The offences were committed with a view to profit, albeit a modest one.

21 The appellant had a 'mid-life crisis' and desired to inveigle himself into a young crowd. These circumstances, which explain his offending, are not mitigatory to any significant degree. They fall well short of constituting factors which do not require the imposition of the type of sentence, namely a term of immediate imprisonment, that is generally, as a matter of fact, appropriate. The appellant committed each offence, in part, for profit, albeit a modest one. Although at the time of the offending he was earning income from his employment, the modest profit was valuable for the appellant because it paid for his own illicit drug use.

22 The sentencing judge was well aware that the drug involved in the appellant's offending was dexamphetamine. Favourably, and perhaps fortunately for the appellant, the sentencing judge took into account, as a mitigating factor, that dexamphetamine was not at the same level of seriousness of other drugs such as methylamphetamine and heroin.[16] However, as his Honour pointed out, while dexamphetamine is a prescription drug, its stimulant or mind-altering properties made it a potentially dangerous drug to those who abuse it, as reflected by the statutory penalty set by Parliament.

23 No evidence was put before this court as to the precise extent of its illegal distribution in this State. However, based on the experience of this court and the circumstances of this case, it is clear that there is an illicit market for the drug.

24 Having regard to the potential dangers to health and the existence of a market for its illegal distribution, the seriousness of offences of the kind committed by the appellant must not be underestimated.

25 The mitigating factors were those identified by the sentencing judge. It is unnecessary to repeat them all. The pleas of guilty were entered at the first reasonable opportunity and were given the maximum discount allowable pursuant to s 9AA of the Sentencing Act 1995 (WA). The appellant's personal circumstances were favourable, he has family and community support and his prospects of rehabilitation appear good. The two additional mitigating factors personal to the appellant, which are mentioned in the confidential memorandum, were taken into account by his Honour.

26 There are no truly comparable cases. We note for completeness that in CBA v The State of Western Australia,[17] the appellant was sentenced to a total effective sentence of 5 years 6 months' imprisonment in respect of three drug offences charged on indictment and 12 offences charged on a notice pursuant to s 32 of the Sentencing Act. Two of the three indictable offences involved substantial quantities of methylamphetamine, while the third offence involved possession of 25 g of dexamphetamine with intent to sell or supply to another. For this offence, the appellant was sentenced to 1 year 6 months' imprisonment. The appellant sought leave to appeal against the total effective sentence on the basis that it infringed the first limb of the totality principle. The appellant did not challenge the individual sentence imposed for the offence relating to dexamphetamine. Leave to appeal was refused and the appeal dismissed.

27 In Dias v The State of Western Australia,[18] the appellant pleaded guilty to four counts on indictment and seven counts in a notice pursuant to s 32 of the Sentencing Act. Three of the indictable offences alleged possession of a prohibited drug with intent to sell or supply. Count 2 concerned a total of 7.16 g of methylamphetamine and count 3 concerned a total of 162 dexamphetamine tablets with a weight of 32.4 g. A sentence of 12 months' imprisonment was imposed for the dexamphetamine offence, but, as the respondent pointed out in its written submissions, little can be taken from that sentence as it was imposed in the context of other offences and the ground of appeal upon which the application relied was an infringement of the first limb of the totality principle for which leave to appeal was refused.

28 Having regard to the facts of each of counts 3 and 4 and all relevant sentencing factors, and having considered all of the factors identified by senior counsel in this court, we have not been persuaded that it was not reasonably open to his Honour to decide that immediate imprisonment was the only appropriate sentencing option. Indeed, in our view, a suspended term of imprisonment, with or without conditions, was not open to his Honour. The primary sentencing consideration remained general deterrence. The personal circumstances of the appellant, while not irrelevant, cannot be accorded as much weight. In our opinion, the individual sentences for counts 3 and 4 were not unreasonable or plainly unjust. His Honour did not err by imposing the wrong type of sentence, nor was each of the challenged sentences too long. Neither sentence was manifestly excessive. Grounds 1 and 2 have not been made out.

29 Given that all of the other individual sentences imposed upon the appellant were ordered to be served concurrently with the sentence of 2 years' immediate imprisonment on count 4 and that we have concluded that this sentence was not manifestly excessive, the challenge to the total effective sentence inevitably fails. Ground 3 has not been made out.

30 None of the grounds of appeal have been made out. Accordingly, the appeal must be dismissed.

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

[5] Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] - [14] (McLure JA).

[6] Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P, Mazza J agreeing).

[7] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18] (Gleeson CJ & Hayne J), [26] (Gaudron & Gummow JJ), [84] (Kirby J).

[9] The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302.

[10] See Robertson v The Queen (1989) 44 A Crim R 224, 230.

[11] Darwell v The Queen (1997) 94 A Crim R 35, 40.

[15] Gaskell v The State of Western Australia [2018] WASCA 8.

[17] CBA v The State of Western Australia [2013] WASCA 144.

[18] Dias v The State of Western Australia [2017] WASCA 49.