Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Property damage to the value of $50 - Whether suspended imprisonment sentence manifestly excessive

Drugs offences - Small amount of mescaline - Attempt to manufacture DMT - Whether imprisonment sentences disproportionate to criminality - Turns on own facts

Misuse of Drugs Act 1981 (WA), s 6(1)(b), Sch III, Sch V

Sentencing Act 1995 (WA), s 6(4), s 7(2), s 39, s 76(2), s 80

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

Dodd v The Queen [2002] WASCA 55

Jones v Saddler (No 2) [2010] WASC 53

Lancaster v The Queen [1989] WAR 83

P (a child) v Thompson [2011] WASC 120

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458

Worth v The Queen [2001] WASCA 303

1 HALL J: These two appeals against sentence were heard together.

2 Appeal 1093 of 2011 relates to a sentence of 7 months' imprisonment suspended for 18 months imposed on 9 July 2009 in the Mandurah Magistrates Court. That sentence was imposed for an offence of unlawful damage to property contrary to s 445 of the Criminal Code (WA).

3 Appeal 1094 of 2011 relates to a total aggregate prison sentence of 13 months to be served immediately and with eligibility for parole. That sentence was imposed in the Perth Magistrates Court on 11 August 2011. It comprised 7 months' imprisonment, being the imposition of the previously suspended sentence, 6 months' imprisonment cumulative for manufacture of a prohibited drug and 3 months' imprisonment concurrent for attempting to manufacture a prohibited drug, the latter two charges being contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA).

4 This appeal was commenced two years out of time. An extension of time is sought. The appellant filed an affidavit seeking to explain the delay. In essence he says that he did not appreciate his right to appeal at the time and that he did not have the benefit of legal advice until recently.

5 Where there has been a lengthy delay, an extension will only be granted if there are exceptional circumstances or if it is established that there will be a miscarriage of justice if an extension is not granted: Lancaster v The Queen [1989] WAR 83, 85.

6 In the present case I am not satisfied that the circumstances are exceptional. From the appellant's affidavit it seems that it was the consequence of the suspended sentence being breached that was the real initiating factor for the appeal. That does not, in itself, justify the very long delay. However, the appellant submits that he will suffer a miscarriage of justice if an extension is not granted. This requires consideration of the merits of the appeal.

7 The facts in relation to the damage offence were that on 8 March 2009 the appellant and his girlfriend were staying at a motel in Mandurah. Sometime between 11.00 am and 12.00 midday the girlfriend left the room in which they were staying. When she returned the appellant had written a graffiti tag onto a brick pillar. The girlfriend recognised the tag as being one used by the appellant and he admitted being responsible. The tag comprised two letters and was 30 centimetres by 20 centimetres in size. The defacing of the pillar caused damage to the value of $50.

8 The appellant pleaded guilty to the damage charge and also to a charge of unlawfully assaulting his girlfriend. In respect of the assault, he was fined $1,500 and that sentence is not the subject of any appeal. In respect of the damage offence, the magistrate noted that the appellant had prior convictions for damaging property. He noted that one such conviction had occurred on 8 March 2009. His Honour then noted that the appellant had been placed on an intensive supervision order and a suspended imprisonment order previously and that the latter had been breached. His Honour then said:

The only question I need to ask myself is - is it worth locking you up for $50 worth of damage and the answer is no, it's not worth locking you up immediately but I am going to impose a sentence of imprisonment and I'm going to suspend it.

People might say 'Why are you going to do that?' and the answer is because it costs a lot of money to lock people up and the circumstances of the offence at this point in time don't warrant it. But if you get involved with any further offending behaviour and in the next 18 months you breach the suspended imprisonment order by committing any offence for which you could be sent to prison you will start serving a sentence of 7 months' imprisonment (ts 2).

9 The grounds of appeal in respect to this matter are as follows:

1. The learned sentencing Magistrate erred in law by imposing a suspended sentence of imprisonment in circumstances where a term of imprisonment was not called for.
2. The learned sentencing Magistrate imposed a sentence which was manifestly excessive in the circumstances of the offence, the personal circumstances of the Appellant and sentencing standards.

10 Suspended imprisonment should not be imposed unless imprisonment for a term equal to that suspended would, if it were not possible to suspend, be appropriate in all the circumstances: s 76(2) Sentencing Act 1995 (WA).

11 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 imprisonment can be justified or the protection of the community requires it: s 6(4) of the Sentencing Act.

12 Section 39 of the Sentencing Act sets out a list of sentences open to a court in order of increasing severity. A sentence of imprisonment is a sentence of last resort. A suspended sentence is the second most serious option available to the court. A court must not use a sentencing option unless satisfied that it is not appropriate to use any options listed before that option: s 39(3) of the Sentencing Act.

13 Sometimes a suspended sentence is viewed as a 'soft option'. However, this overlooks the serious consequences that can flow for an offender from the imposition of such a sentence. Those consequences may not always be clear to the offender concerned. A suspended sentence continues to place the liberty of the offender in peril during its term of suspension in the event of a breach. If a breach occurs the discretion of the court dealing with that breach to do anything other than impose the sentence of imprisonment previously suspended is significantly constrained: s 80(3) of the Sentencing Act.

14 Furthermore, given that suspended imprisonment is reserved for those cases which would otherwise justify immediate imprisonment it is not a sentence that should be imposed in cases where options such as fines and community-based orders are appropriate. As Kirby J said in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 'a suspended term of imprisonment should not be imposed as a "soft option" when the court with the responsibility of sentencing is "not quite certain what to do"' [79].

15 In the present case, the magistrate imposed a suspended sentence of imprisonment despite being of the view that the circumstances of the offence did not warrant the imposition of a sentence of imprisonment to be served immediately. The view that the circumstances of this offence could not justify a sentence of imprisonment was clearly correct. Having reached that conclusion, to impose a suspended sentence was to act contrary to s 76(2).

16 The magistrate's choice of sentence appears to have been influenced by the fact that the appellant had a prior record for similar offending. However, the existence of a prior record is not an aggravating factor: s 7(2)(b) of the Sentencing Act. Nor is it an aggravating factor that a previous sentence has not achieved the purpose for which it was imposed: s 7(2)(c) of the Sentencing Act.

17 Any sentence imposed on the appellant for the damage offence needed to be proportional to the circumstances of that offence. The appellant's prior record did not make those circumstances more serious. The prior record was relevant to the extent that there was an absence of mitigation in respect of the appellant's character. However, a sentence should not be increased beyond what is proportionate to the crime in order to extend the period of protection of society from the risk of recidivism on the part of the offender, though protection of society may be relevant in the exercise of sentencing discretion: Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458, 467, 468, 482 - 483, 495 and see also Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 472.

18 The previous criminal history of the offender may be taken into account in determining a sentence, but it cannot be given such weight as to lead to a penalty that is disproportionate to the gravity of the offence. To do so would be to impose a fresh penalty for past offences: Veen (No 2) (477) (Mason CJ, Brennan, Dawson and Toohey JJ).

19 The criminal record of any offender may, however, be relevant to show whether an offence is out of character or is an instance of continuing disobedience of the law. If the latter is the case, retribution, deterrence and protection of society may indicate that a more severe penalty is warranted: Veen (No 2) (477). However, consistently with proportionality, that does not mean that a person with a history of offending is liable to receive a sentence that is more severe than the circumstances of the offence could possibly warrant. It simply means that an offender with a relevant prior record may, for the reasons referred to, receive a higher sentence within the appropriate discretionary range for an offence of that type.

20 In the present case the respondent submits that the appellant had relevant prior convictions for damage. These included offences between January 2006 and December 2008 that involved scratching marks on to parked cars, pushing over a motorcycle, denting a car, smashing a car window, urinating on clothes in a shop, breaking a window at his girlfriend's house and numerous counts of writing graffiti on shops and walls. Many of those offences were significantly more serious than the damage charge presently under consideration. I accept that this record was relevant to the extent that it showed that the present offence was not out of character and that the appellant had manifested a continuing attitude of disobedience to the law.

21 The appellant's prior record precluded him from being treated leniently. However, it did not aggravate his offending on this occasion. He had to be punished for what he had done at the motel on 8 March 2009. There may have been little or nothing to mitigate that offence other than the guilty plea, but the issue was whether it was in itself serious enough to justify a sentence of imprisonment.

22 In my view, it is clear that the magistrate made an express error in imposing a sentence of imprisonment, which is what a suspended sentence of imprisonment is, in circumstances where he acknowledged it was not appropriate. Accordingly, ground 1 must succeed. An extension of time should be granted because the appellant would otherwise suffer a miscarriage of justice.

23 In the circumstances, it is unnecessary to determine ground 2. However, the question of whether the sentence imposed was manifestly excessive is relevant to a consideration of the options that were properly open for this conduct.

24 As at the date the offence was committed the maximum penalty was 12 months' imprisonment or a fine of $12,000 or both. It was increased to 2 years and/or a fine of $24,000 on 1 January 2010, but that is after this offence was committed. The statutory maximum penalty is one of the factors relevant in determining the seriousness of an offence: s 6(2) Sentencing Act.

25 The other relevant factors include, the circumstance of the commission of the offence, any aggravating factors and any mitigating factors: s 6(2) Sentencing Act. I have already referred to limitations upon imposing sentences of imprisonment and to the fact that a prior record is not an aggravating factor. A plea of guilty is always a mitigating factor, though its weight may vary according to when it is made: s 8 Sentencing Act.

26 Offences of unlawful damage can be widely variable. This was not a serious case of damage. Nor was it a serious case of damage caused by graffiti. The damage was low in value, relatively small in size and not aggravated by any other features. I do not discount the possibility that offences of damage caused by graffiti can attract sentences of imprisonment in an appropriate case, but this was not one of them. As to sentencing standards for damage of this type see Jones v Saddler (No 2) [2010] WASC 53 and P (a child) v Thompson [2011] WASC 120. The circumstances of the offence were such that the imposition of a suspended sentence of imprisonment was manifestly excessive. This was an offence for which a fine was appropriate.

27 On 5 May 2010 the police executed a search warrant on the home of the appellant's parents, with whom the appellant lived. During the course of the search the police located a number of glass bottles containing liquid. The liquid in one of those bottles was found to contain a small quantity of mescaline.

28 The analyst report stated that mescaline (being 3 4, 5-trimethoxyphenethylamine) is a potent hallucinogenic chemical that is found naturally in certain species of cacti. One of these species is the peyote cactus. Mescaline is commonly administered by direct ingestion of cactus plant material. However, it may also be isolated from cactus plant material by chemical extraction into a variety of solvents including xylene. A top layer of xylene was found in the bottle in which the mescaline was detected. The total amount of mescaline identified in the liquid was 213 milligrams.

29 The amount of mescaline was very small. I was informed on the hearing of the appeal that it was believed that this was the first case involving such a drug which had come before the courts. Nothing was placed before the magistrate, or me on appeal, as to the significance of the quantity. However, some indication that this was a very small quantity is provided by the fact that the amount of mescaline that determines that a charge is dealt with in the District Court under sch III of the Misuse of Drugs Act 1981 (WA) is 22.5 grams and the amount which raises a presumption of an intention to sell or supply under sch V is 7.5 grams. The quantity detected here was dissolved in two litres of fluid and there was no evidence to suggest that it had been, or indeed could be, used in that form.

30 It was suggested to the magistrate that mescaline is an hallucinogenic drug with properties similar to those of LSD. It is not clear to what extent quantities of mescaline can be compared to those of LSD, however I would note that the sch III quantity for LSD is 0.004 grams and the sch V quantity for LSD is 0.002 grams. Clearly the quantities of mescaline involved here by reference to those referred to in sch III and sch V were very small and cannot be equated in terms of seriousness with similar quantities of LSD.

31 There was also a second charge of attempting to manufacture another drug, namely dimethyltryptamine (DMT). This was also a naturally occurring substance found in the bark of a species of wattle tree. The appellant was charged with attempting to manufacture because none of the drug had in fact been extracted. However, he admitted to the police that he had gathered some vegetable matter with a view to attempting to extract the drug.

32 The two drug charges arising from this search were preferred on 11 May 2010. However, they did not come before the magistrate who ultimately imposed sentence until 11 August 2011. The delay does not appear to have been caused by the appellant. In fact, the documents indicate that there was a very long delay in obtaining a chemical analysis report in regard to the mescaline. The appellant was committed to the District Court, but then remitted back to the Magistrates Court when the small quantity of drugs was established. Pleas of guilty were then entered and that resulted in breaches of the suspended sentence imposed on 9 July 2009.

33 In mitigation the magistrate was advised that the appellant's father ran a landscaping business. As a consequence, the appellant has had a long term interest in landscaping and horticulture. The family has a collection of many plants including some 350 cacti plants. That collection was said to be of considerable value. At the time the warrant was executed the appellant was a student at TAFE. He was enrolled in a horticulture course and had completed three of the four elements of that course. He had previously worked extensively in the nursery industry. He was also completing a diploma in laboratory technology with a view to utilising it in horticulture. He had made endeavours to try and extract drugs from two of the plants and readily admitted this to the police. However, he said that he was doing this for his own interest and without any intention of distributing drugs to others. He told the police that he had placed the substances in the jars many months earlier than the time that they had been discovered. It was for this reason that the charges were dated as having occurred between 1 May 2009 and 5 May 2010.

34 Practical potential is a relevant consideration in assessing the seriousness of a manufacture of drugs offence: Worth v The Queen [2001] WASCA 303 [50]. It is also relevant to consider the amount of drug likely to be produced: Dodd v The Queen [2002] WASCA 55.

35 In the present case this could not be described as a sophisticated venture. The process seems to have involved nothing more than putting vegetable matter in a bottle with a solvent. Whether that process was efficacious or not was unclear. There was no suggestion that the appellant's actions could have produced any useable or saleable quantities of drugs. Nor was there any suggestion that there was any market for these drugs. The claim that this was an experiment with no other object but possible personal use was uncontested.

36 The grounds of appeal in respect of this appeal are as follows:

1. The sentences for manufacture and attempted manufacture of a prohibited drug was manifestly excessive having regard to the circumstances of the offending, the personal circumstances of the Appellant and the sentencing standards.
2. The learned sentencing Magistrate erred in law by failing to take into account relevant factors in considering whether or not it would be unjust to activate the suspended sentence which the Appellant was subject to, namely:

(i) the circumstances of the damage offence for which the suspended sentence was imposed;

(ii) that the offences of manufacture and attempted manufacture of a prohibited drug were of a different nature to the damage offence;

(iii) that the period of the offences specified in the prosecution notices relating to manufacture and attempted manufacture of a prohibited drug commenced prior to the imposition of the suspended sentence;

(iv) factors personal to the Appellant; and

(v) the period the appellant had in remand custody.

1. The total sentence was disproportionate to the total criminality.

37 As regards ground 1, most of the magistrate's sentencing comments related to the breach of the suspended sentence that I have dealt with earlier. In regard to the suspended sentence, the magistrate concluded that it would not be unjust to impose that sentence and he did so.

38 The magistrate took the view that the fact that the two drug offences had been committed at least partly during the course of the suspended sentence was a significant aggravating feature. However, in regard to the actual circumstances of the drug offences he said very little:

In respect to the manufacture of the prohibit drug mescaline that also is a serious offence of setting out to manufacture a substance by experimentation essentially that is a prohibited drug. It might have been an accident, the results you reached, but certainly your experimentation on the cactus plant in question was totally willed and sustained so you will be imprisoned on that one for six months. That will be a cumulative term of imprisonment on the seven months. In respect to the attempting to manufacture the DMT, applying totality etc and the fact that it was an attempt, you didn't manufacture the final product, you will be imprisoned for three months concurrent (ts 17).

39 Whilst the magistrate's comments are correct they do not give the full context of the offences. The attempt to manufacture may have been deliberate but it was certainly not sophisticated. The amount of mescaline detected was extremely small, so much so that it had taken the Chem Centre many months to determine the quantity that was present. Apart from the fact that the bottles were said by the appellant to have been in situ for some 20 months there was nothing to suggest that this was a continuing course of conduct. Furthermore, it did not appear that the drug offences had been committed in defiance of the suspended sentence; the dates of the offences simply reflected the estimated time that the bottles had first been prepared (which was prior to the suspended sentence) and then later discovered by the police.

40 In all the circumstances sentences of imprisonment were not appropriate. The two drug offences were very much at the lower end of the offences of this type. Sentences of imprisonment were disproportionate to the level of criminality involved. Whilst the appellant had two prior convictions for possession of prohibited drugs, they were for other drugs and had both resulted in very small fines. The imposition of sentences of imprisonment manifests error and I am satisfied that ground 1 has been made out.

41 It is unnecessary to deal with ground 2 which specifically relates to the exercise of the power under s 80 of the Sentencing Act 1995 dealing with the breach of a suspended sentence. Because I have found that that suspended sentence was incorrectly imposed it is unnecessary to deal with the approach taken by the second magistrate. The third ground asserts that the total sentence was disproportionate to the overall criminality. It is also unnecessary to deal with that ground given my conclusion on ground 1.

42 Both appeals have been made out. An extension of time should be granted on appeal 1093 of 2011. The consequence is that the sentences will be set aside and the appellant will be re-sentenced. I will hear from counsel for the State and for the appellant as to the appropriate sentences to be imposed.