DINH -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 167 (29 October 2019)

1. The appellant was 56 at the time she was sentenced. She was born in Vietnam and came to Australia in 1982 with her family.
2. The appellant lives in Carnarvon and is involved in an agricultural operation there, together with her family.[2]
3. The appellant had no prior convictions. The judge accepted that, prior to the commission of this offence, she was a person of good character.[3] The appellant was not a user of methylamphetamine.[4]
4. The appellant suffered from a skin condition and, at the time of sentencing, the question of whether she suffered from diabetes was being investigated.[5]

1. The judge observed that it was not possible to know precisely the role that each of the offenders had played in the offence.[6] In that regard, the judge observed that each offender had maintained their silence and denial of the offence following the conviction, not disclosing any factual material that might explain their individual involvement and role.[7]
2. The judge found that some or all of the 24.2 g of methylamphetamine was for sale and would have been supplied in the Carnarvon region, where both offenders lived.[8] The judge observed that the transport of prohibited drugs to rural communities is a serious matter; the more remote the area the easier it is for the drugs, once there, to be disseminated in the community.[9]
3. The judge found that the appellant had no remorse and no insight into the seriousness of her offending.[10]
4. The judge referred to well‑established sentencing principles, and concluded that the objective seriousness of the offending and the protection of the community required that the appellant's term of imprisonment be served immediately.[11] The sole ground of appeal, as explained in argument, challenges that conclusion.
5. The judge found that there must have been some personal gain for each of the offenders by reason of their willingness to be in possession of a substantial quantity of methylamphetamine which, on the evidence before the court, had a value of approximately $10,000.[12]
6. The judge imposed a sentence of 2 years' immediate imprisonment on the appellant, with eligibility for parole.[13]

1. The sole ground of appeal is expressed in terms appropriate for a ground claiming a breach of the first limb of the totality principle. However, given that the appellant was sentenced for only one offence, the ground must be taken as a claim of manifest excess. As explained, the ground challenges the imposition of immediate imprisonment and does not challenge the length of the term.[14]

1. The appellant submits that suspended imprisonment was open,[15] taking into account:

(1) the limited information and findings as to the extent of her role so that there was a 'dearth of criminality involved';[16] and

(2) the appellant's previous good character as a decent, working member of the community with no prior convictions.[17]

1. The appellant submits that those matters justified a merciful sentence, but a merciful sentence was not imposed.[18]
2. The appellant relies on three cases of offending against s 6(1) of the Misuse of Drugs Act 1981 (WA) in which a suspended sentence was imposed.[19]

1. In support of the contention at [21](1) above, the appellant submits that the judge implicitly found that the appellant did not know about the methylamphetamine until, and so only came into possession of it when, the car was flagged dow[20]by police.20 In this regard, the appellant points to the difference between her sentence and the 3‑year sentence imposed[21]n her son.21
2. In our view, it cannot reasonably be argued that the judge made any such implicit finding. As already noted, the judge observed that it was not possible to know precisely the role that each of the offenders had played in the offence.[22] That finding is inconsistent with, and so excludes, the implication sought to be made from the judge's findings by the appellant. The same is true of the judge's unchallenged finding that there must have been some personal gain for each of the offenders. Further, the difference in the sentences imposed on the appellant and her son is an inadequate foundation for any inference as to when the appellant first became aware of the presence of methylamphetamine.
3. There is no ground alleging that the judge erred in failing to make a finding to the effect outlined in [24] above. In any event, the judge did not so err in circumstances where, before the sentencing judge, the appellant chose to advance no factual or evidentiary material concerning her role and did not invite any inference to the effect now contended by the appellant.
4. The legal principles relevant to a sentencing appeal in which the offender contends that a term of immediate imprisonment for a drug offence ought to have been suspended were outlined in HNA v The State of Western Australia,[23] as follows:

Section 6 of the Sentencing Act 1995 (WA) requires that a sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of the appellant's offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors. The appellant bears the onus of establishing mitigating factors on the balance of probabilities.

Section 6(4) of the Sentencing Act provides that a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only a sentence of imprisonment can be justified or the protection of the community requires it.

The effect of s 39(3) of the Sentencing Act is that a court must not impose a term of immediate imprisonment unless satisfied that suspended and conditionally suspended imprisonment are not appropriate sentencing options. In deciding whether it is satisfied of that matter, the court must have regard to the sentencing principles in pt 2 div 1 (including s 6) of the Act.

Section 39(3) of the Sentencing Act imposes a constraint on the court's sentencing discretion. The constraint is not discretionary. A court 'must not' use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before that option. Section 39(3) prohibits a court from imposing a sentence of immediate imprisonment unless the required state of satisfaction exists.

The condition for the release of the constraint on the court's sentencing discretion which s 39(3) of the Sentencing Act imposes is defined by reference to the existence of a state of satisfaction in the sentencing court. The subject matter about which the sentencing court must be satisfied is the appropriateness of different types of sentence. A sentencing judge must be positively satisfied that suspended and conditionally suspended imprisonment are not appropriate sentencing options before imposing a sentence of immediate imprisonment.

In considering whether suspended or conditionally suspended imprisonment is not appropriate, the provisions relating to those sentencing options must be considered. Only terms of 5 years or less may be suspended or conditionally suspended. Suspended or conditionally suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances. Further, suspended or conditionally suspended imprisonment is not to be imposed if the offence was committed when the offender was subject to an early release order, or the offender is serving or is yet to serve a term of imprisonment that is not suspended. These specific requirements did not preclude the imposition of suspended or conditionally suspended imprisonment in the appellant's case.

Otherwise, considering what sentencing options are 'not appropriate' involves an evaluative judgment which is broad but not at large. The determination of what is 'not appropriate' must be reached by applying the relevant sentencing principles and considerations to all the circumstances of the offence and the offender.

Where a sentence is said to be manifestly excessive as to type, the question for this court is whether it was reasonably open to the sentencing court, upon application of the relevant sentencing principles and considerations and in all the circumstances, to be positively satisfied that earlier listed sentencing options were not appropriate.

As was emphasised in Dinsdale v The Queen [[2000] HCA 40; [2000] HCA 54; (2000) 202 CLR 321], in an appeal alleging the imposition of the wrong type of sentence, it remains necessary to identify an error of principle by the sentencing judge before this court has authority to interfere with the sentence. Where error is not express and manifest excess or inadequacy is alleged, the court may infer error where the sentence imposed is unreasonable or plainly unjust.

1. Whether suspension is appropriate involves a discretionary value judgment, which by its nature gives some latitude to the decision‑maker. In borderline cases, different types of sentence may be reasonably open. In such cases, the decision to decline to suspend a term of imprisonment would not be unreasonable or unjust, and would reveal no implied error.[24]
2. Thus, it is for the appellant to satisfy this court that the primary sentencing court's judgment - that suspension was not appropriate - was a conclusion that was not reasonably open.
3. The considerations relevant to a question of manifest excess are well established. In determining whether it is open to the sentencing judge to be satisfied that a sentencing option was not appropriate, regard must be had to the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to the offence, the place which the offender's criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
4. Other well-established general principles were outlined by Mazza and Mitchell JJA in The State of Western Australia v Egeland,[25] as follows:

This court has, time and again, made it plain that, generally, as a matter of fact, 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. Accordingly, the imposition of a sentence other than immediate imprisonment for an offence of the kind under consideration in this appeal is, as a matter of fact, exceptional.

However, even if a term of immediate imprisonment is generally the appropriate penalty, a sentencing judge is not relieved of their obligation to determine the appropriate penalty in the particular case.

The major sentencing considerations for offences of dealing or trafficking in dangerous drugs such as MDMA are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include 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 personal gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. (footnotes omitted)

1. The appellant was convicted of possession with intent to sell or supply a substantial quantity, almost 1 oz, of methylamphetamine. The judge found, without challenge on appeal, that there must have been some personal gain for each of the offenders. The appellant did not have the benefit of a plea of guilty, and had not displayed any remorse or insight. In our view, in those circumstances, applying the principles outlined above, the imposition of a term of immediate imprisonment was well open to the sentencing judge. Indeed, in our opinion, immediate imprisonment was the only appropriate disposition; to have suspended the term of imprisonment would have revealed error.
2. We adopt, without repetition, the outline in Egeland[26] of cases concerning the imposition of immediate or suspended imprisonment for drug offences. None of those decisions assist the appellant in this case. The rare cases in which suspended imprisonment has been upheld or imposed on appeal involve, with one exception, pleas of guilty.
3. The exception is Samuel v The State of Western Australia,[27] which involved a considerably smaller quantity, namely 6.25 g of powder consisting of 25% methylamphetamine and 19% pseudoephedrine. It should be emphasised that the dismissal of a State appeal against the imposition of a suspended term of imprisonment does not mean that suspended imprisonment was the only sentencing disposition available on a proper exercise of the sentencing discretion. The fact that an appellate court declines to interfere with a merciful exercise of the sentencing discretion does not demonstrate that a different sentence was unavailable. That is illustrated by the decision in Egeland. In that case, the majority upheld the condition of the suspended term imposed, but expressly recognised that it was open for the court below to have imposed immediate imprisonment.[28]
4. In our opinion, taking into account:

(2) the circumstances of the offending, so far as they were known, including the quantity of methylamphetamine involved;

(3) the patterns of sentences imposed in cases with at least some features comparable to the appellant's offending;

(4) the place which the appellant's offending occupies on the scale of seriousness of offences of this kind;

(6) the mitigating factors referred to by the sentencing judge;

(7) the absence of a plea of guilty and of remorse; and

the imposition of a term of immediate imprisonment was not unreasonable or plainly unjust. As already explained, immediate imprisonment was not merely open, it was the only appropriate sentencing outcome.

1. For these reasons, the sole ground of appeal is without merit. Leave to appeal must be refused.

1. For the above reasons, we would make the following orders:

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate/Orderly to the Honourable Justice Beech

[18] Appellants' submissions [32]; appeal ts 30.

[19] Appellants' submissions [26] ‑ [29], referring to Samuel v The State of Western Australia [2004] WASCA 154; The State of Western Australia v Skaines [2006] WASCA 160; The State of Western Australia v Egeland [2018] WASCA 228.

[23] HNA v The State of Western Australia [2016] WASCA 165 [23] ‑ [31].

[24] Fogg v The State of Western Australia [2011] WASCA 11 [8] ‑ [10]; Cross v The State of Western Australia [2018] WASCA 86 [36].

[25] The State of Western Australia v Egeland [2018] WASCA 228 [140] ‑ [142].

[27] Samuel v The State of Western Australia [2004] WASCA 154.