Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against sentence - Breach of conditional suspended imprisonment order - Whether sentencing judge erred by failing to take into account factors in s 84L(5), Sentencing Act 1995 (WA) - Manifest excess - Turns on own facts

Sentencing Act 1995 (WA), s 80, s 84F, s 84J(1), s 84L

1 McLURE P: This is an application for leave to appeal against sentence. On 3 March 2015 the appellant admitted breaching a conditional suspended imprisonment order imposed by Scott DCJ on 31 January 2014 for the offence of cultivating a prohibited plant with intent to sell or supply (the cultivation offence).

2 The sentence for the cultivation offence, which was committed on 12 December 2012, was a term of 10 months imprisonment conditionally suspended for 18 months with supervision and programme requirements.

3 On 24 March 2014 the appellant was directed to commence urinalysis testing. On 14 April 2014 the appellant was issued with a lawful instruction to cease all illicit substance use and/or prescribed substance use and to attend for urinalysis as directed.

4 The appellant tested positive to cannabis and methylamphetamine on 14 April 2014, 7 May 2014 and 25 July 2014.

5 On 17 June 2014 the appellant was charged under s 84J(1) of the Sentencing Act 1995 (WA) with breaching the conditional suspended imprisonment order by testing positive to illicit substances on 7 May 2014 contrary to the written lawful instruction given on 14 April 2014 (the breach offence).

6 On 23 July 2014 the appellant pleaded guilty to the breach offence in the Perth Magistrates Court and was committed to the District Court for sentencing.

7 On 3 March 2015 the appellant admitted the breach offence and was ordered by Eaton DCJ to serve the whole of the previously suspended term of 10 months imprisonment. The appellant appeals against this order.

8 The lengthy delay of around seven months between the appellant's admission of guilt to the breach offence on 23 July 2014 and sentencing on 3 March 2015 is explained by the need to obtain pre-sentence and psychiatric reports.

9 The facts of the cultivation offence are as follows. On 12 December 2012 police executed a search warrant at the appellant's residential address. Police located and seized 25 cannabis plants growing in the backyard. The appellant admitted ownership of the plants. He also stated that once the plants were at a suitable height his intention was to harvest them and to give them to friends in exchange for drugs and also to sell the cannabis to raise money so he could purchase other drugs, including methylamphetamine.

10 The appellant was aged 41 at the time of sentencing. He was diagnosed with paranoid schizophrenia in 2000. He was living independently on a disability pension at the time of the breach offence. He has longstanding, entrenched polysubstance abuse that includes cannabis, amphetamines, methylamphetamine and heroin.

11 The appellant believes he does not have a mental illness and does not need to take the anti-psychotic medications that have been prescribed for him. Further, notwithstanding his daily use of prohibited drugs since the age of 17, the appellant does not believe he has a substance dependence problem.

12 At the time of sentencing the appellant was on a community treatment order (CTO) under which an involuntary patient is permitted to remain in the community. The appellant engages in aggressive and threatening behaviour towards mental health staff, including making threats to kill.

13 The appellant admitted using prohibited drugs from the date of the imposition of the conditional suspended imprisonment order and has stated an intention to continue to use prohibited drugs on a daily basis into the future. He has no intention of ceasing to use prohibited drugs.

14 The appellant has a criminal record that includes three prior convictions for cultivating a prohibited plant, one of which was with intent to sell or supply.

15 The sentencing judge accepted the assessment in the pre-sentence report that the appellant was at a high risk of reoffending, which the judge attributed to the combination of the appellant's mental condition and drug use, which he found were intertwined.

16 The sole ground of appeal is in the following terms:

The learned sentencing Judge erred in law by failing to reduce the term of imprisonment that was conditionally suspended to take into account the extent to which the appellant had complied with the conditional suspended term of imprisonment and how long the appellant had been subject to the conditional [suspended] term of imprisonment pursuant to section 84L(5) of the Sentencing Act.

17 At the time of sentencing for the breach offence the appellant had been on the conditional suspended imprisonment order for just over 13 months. It was due to expire on 30 July 2015. While subject to the order the appellant had reported for supervision as directed; attended as requested for urinalysis; attended for substance abuse counselling on a regular basis; remained subject to the CTO requiring fortnightly meetings with his case manager; and had not been convicted of any criminal offence. He had committed five drug related offences after the cultivation offence but before the imposition of the conditional suspended imprisonment order.

18 A court that is required to deal with a person under s 84L of the Sentencing Act must deal with the person by one of four methods. They are:

(a) order the person to serve the term or terms of imprisonment that were suspended;

(b) order the person to serve part of the term or terms of imprisonment that were suspended (even if the period ordered to be served is 6 months or less);

(c) substitute another suspension period of not more than 24 months for the suspension period originally set;

(d) make no order in respect of the conditional suspended imprisonment.

19 Section 84L(5) provides:

In dealing with a person under this section a court must take into account the extent to which the person has complied with the CSI and how long the person has been subject to the CSI.

20 There is no equivalent in s 84L to s 80(3) and s 84F(3) of the Sentencing Act which require a court to make an order that the person serve the term or terms of imprisonment that were suspended unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the suspended imprisonment or conditional suspended imprisonment were imposed. Sections 80 and 84F apply where a person commits an offence, the statutory penalty for which is or includes imprisonment, during the suspension period.

21 As confirmed in the written submissions in the appellant's case, the thrust of the ground of appeal is that the sentencing judge erred in failing to take into account the extent to which the appellant had complied with the conditional suspended imprisonment and how long he had been subject to it as required by s 84L(5).

22 There are significant obstacles to a claim that a decision-maker has failed to take into account mandatory relevant considerations. The failure to expressly refer to them in the sentencing reasons is not determinative. Regard can and should be had to the oral submissions of counsel prior to sentencing.

23 The appellant's counsel addressed the sentencing judge on all relevant matters of fact, with particular emphasis on the matters falling within s 84L(5). It is also apparent from the sentencing judge's reasons that he took into account all relevant matters falling within the scope of s 84L(5). The absence of any express reference to s 84L(5) is of no consequence. The ground of appeal has no reasonable prospect of succeeding.

24 I have also considered whether there is an arguable claim that the sentence imposed by Eaton DCJ is manifestly excessive. The purpose of imposing the conditional suspended imprisonment order with programme and supervision requirements was to work towards reducing the high risk of the appellant reoffending by facilitating his rehabilitation. An essential step in that process was to seek to address the appellant's problematic drug abuse which the trial judge found was intertwined with the appellant's mental condition. That purpose was defeated from the time of the imposition of the conditional suspended imprisonment order by the appellant's then existing and continuing intention, which he acted on, to persist with his problematic drug abuse. The appellant's attitude and conduct reflected a level of contemptuousness wholly inconsistent with the objective of the penalty. In those circumstances, it was open to the trial judge to order the appellant to serve the term of imprisonment that was suspended.

25 Leave to appeal should be refused with the result that the appeal is taken to be dismissed.