Court of Appeal (WA)|2006-06-20|Before: Smith JA

Duong v The State of Western Australia [2006] WASCA 110 (20 June 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DUONG -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 110

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Sentencing - One count of possession of methylamphetamine with intent to sell or supply - 6.739 grams of methylamphetamine of 25 per cent purity - Sentence of 18 months' immediate imprisonment - Whether proper consideration of suspended sentence

Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998

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

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

R v Hafner [2002] WASCA 211

R v Liddington (1997) 18 WAR 394

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

Schlenka v The Queen [2004] WASCA 142

The State of Western Australia v Andela [2006] WASCA 77

Vogel v The Queen [2002] WASCA 261

Johansen v The Queen, unreported; SCt of WA (Wallwork J); Library No 980087; 25 February 1998

Mullally v The Queen [2000] WASCA 26

R v Bellissimo (1996) 84 A Crim R 465

R v Ruich [2000] WASCA 84

1 ROBERTS-SMITH JA: I have had the benefit of reading in draft the reasons for judgment of McLure and Pullin JJA.

2 I agree with the reasons and conclusions of both their Honours. In particular, Pullin JA has accurately noted the intent of what I said in Samuel v The State of Western Australia [2004] WASCA 154 at [35]. When I wrote in that paragraph of a sentence of imprisonment, I was referring to a sentence of immediate imprisonment, so much so is clear from what I said at [39]:

"However, in expressing it that way, it seems to me his Honour fell into the error identified in Dinsdale. In saying that the courts of this country and elsewhere have made it quite plain that involvement in this sort of activity really has only one end result, it is plain his Honour was referring to immediate imprisonment. His Honour's comment then that nothing had been put to him which would justify suspension, suggests he was directing himself to the question whether immediate imprisonment being appropriate, it could be suspended. That reverses the statutory process."

3 I would dismiss the appeal for the reasons given by McLure and Pullin JJA.

4 McLURE JA: The appellant appeals against a sentence of 18 months' imprisonment imposed by Yeats DCJ for one count of possession of 6.739 grams of methylamphetamine with intent to sell or supply. The facts are set out in the judgment of Pullin JA and not repeated here unless required for an understanding of these reasons.

5 The appellant's grounds of appeal do not clearly and concisely identify the errors relied on by the appellant to enliven this Court's jurisdiction to intervene. In his first ground of appeal, the appellant contends that the learned sentencing Judge "failed to give proper consideration to section 39(2)(e) - (h) of the Sentencing Act 1995". At the time of sentencing, pars (e) - (h) of s 39(2) dealt with the sentencing options of an intensive supervision order, suspended imprisonment, and a term of imprisonment respectively. Under s 39(3) a court must not use a sentencing option listed in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before that option.

6 When regard is had to the appellant's written submissions, the specific error relied on (which ought to have been identified in the

grounds of appeal) is stated to be that the sentencing Judge failed to determine the quantity of the drug for the appellant's own use, for supply (but not sale) to others and for sale. The appellant contended that the sentencing Judge was required to make such findings in order to properly consider the sentencing options to which I have referred. A submission to this effect was previously considered and rejected by this Court in R v Marker [2002] WASCA 282; (2002) 135 A Crim R 55. In Marker, as in this case, there was no proper evidential foundation for a finding as to the amount of the drug in question the offender intended to use, sell, or supply. Steytler J said (at [114] - [116]):

"In those circumstances it was, in my respectful opinion, open to the sentencing judge to sentence the applicant upon the basis that he was 'a user dealer', without making any specific finding as regards the quantity which would have been sold or supplied by the applicant ...

In any event, this issue did not, in my opinion, have to be precisely determined as an essential aspect of the sentencing process, any more, for example, than it is necessary to determine the precise nature of an accused's involvement in an active importation of a prohibited drug ... The sentencing judge had before him only limited and imperfect information in this respect and no conclusion could have been reached by him with any confidence.

In those circumstances, it seems to me to have been open to the sentencing judge to conclude no more than he did, namely, that the applicant was a user and a dealer as opposed, for example, to someone who was exclusively a dealer, and to sentence him upon that basis."

7 These observations are equally apt in this case. I would dismiss this ground of appeal.

8 The second ground of appeal is in terms that the sentencing Judge "failed to consider adequately or at all the imposition of a suspended sentence". The appellant again identified the specific error on which he relied in his outline of submissions rather than in his grounds. In this instance there is an almost complete disconnect between the ground of appeal and the alleged error. The specific error relied on is that the sentencing Judge reversed the statutory process by first concluding a sentence of imprisonment was appropriate and only then considering whether it could be suspended. In support of this submission the appellant relies on the judgment of Gleeson CJ and Hayne J in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 328 and Samuel v The State of Western Australia [2004] WASCA 154 at [35] - [39] per Roberts-Smith J.

9 In Dinsdale, the primary Judge imposed a term of suspended imprisonment for one count of sexual penetration of a child under 13 years and one count of indecently dealing with that child. The Court of Criminal Appeal ("CCA") concluded that the sentence was manifestly inadequate and proceeded to exercise the sentencing discretion itself. A majority of the High Court in Dinsdale (Gaudron, Gummow and Kirby JJ) concluded that the CCA had failed to give adequate reasons for its conclusion that the trial Judge had erred in imposing a suspended sentence. Gleeson CJ and Hayne J went further. They alone concluded that the reasons given by the CCA in resentencing the appellant revealed an error of principle which must necessarily have affected the conclusion the Court reached about the inadequacy of the sentence imposed by the primary Judge. Gleeson CJ and Hayne J said (at [12] - [13]):

" ... The Court concluded that the offences committed by the appellant 'were rightly found to be of sufficient seriousness to require the punishment of imprisonment to be imposed', but concluded that because 'there was no rehabilitation process going on which merited the support of a suspended sentence' there was no reason shown which 'dictated a merciful disposition of the case'.

This inverts the order in which the statute requires a sentencing judge to consider matters. The sentencing judge must first decide the kind of punishment to be imposed. In this case that was understood as requiring a choice between imposing a term of suspended imprisonment and imposing imprisonment which the appellant would have to serve immediately. Only if satisfied that it is not appropriate to impose a term of suspended imprisonment may the judge impose a term of imprisonment which is to take effect immediately. The Court of Criminal Appeal considered how long a period of incarceration (immediate or suspended) the appellant's conduct warranted and then searched for reason 'in mercy' to suspend that term. This is not what s 39(3) of the Act required."

10 What is meant in par [13] must be seen in the context of par [15] which states:

"No doubt, under s 6(4), a sentencing judge must determine whether imprisonment is warranted and, under s 76(2) must fix the length of the term which would otherwise be appropriate. Neither step must be allowed, however, to obscure the need to decide whether suspended imprisonment is an appropriate disposition of the matter. Only if it is decided that it is not appropriate may a court impose a term of immediate imprisonment."

11 It is clear from par [15] that there is no error in first considering whether imprisonment is warranted and fixing the length of the term which would otherwise be appropriate before determining the type of sentence to be imposed, that is a sentence of imprisonment to be suspended or immediately served. In my assessment, the error identified by Gleeson CJ and Hayne J may turn on the CCA's search for a reason "in mercy" to suspend the term.

12 The statutory scheme requires the Court to be positively satisfied that the option of suspending imprisonment (and each remaining lesser option) is not appropriate before it can impose a term of (immediate) imprisonment. I respectively agree with Parker J's analysis of Dinsdale in R v Latham [2000] WASCA 338; (2000) 117 A Crim R 74. He said (at 78):

" ... [W]hat appears to be critical to the adequate exercise of sentencing discretion is whether due regard was had to the stipulation of s 6(4) [of the Act] which gives effect to the principle that imprisonment (whether or not suspended) is a sentence of last resort, and to the effect of s 39(3) that a term of imprisonment to be served immediately should not be imposed unless the court is satisfied that a suspended sentence is not appropriate. It seems probable that the practical effects of s 76(1), (2) and (3), in particular cases, may lead the court to consider ss 6(4) and 39(3) at different stages of the process of reasoning which leads to a sentence. In the end, what appears to be critical to the propriety of the sentencing process is, not so much when ss 6(4) and 39(3) are considered, but that they be properly considered."

13 I do not read the reasons of Roberts-Smith JA in Samuels as necessarily inconsistent with this view of the effect of Dinsdale. It is necessary to apply these principles to the facts of this case. The sentencing Judge said:

"Now, when I come to sentence you, I am required, because of the prevalence of this offence and the fact that you had possession of methylamphetamine in a commercial enterprise, and it's at the high end of the hierarchy of seriousness for drugs, that normally this would require a term of immediate imprisonment, and that is so because not only the commercial nature but because of the need for general deterrence, and general deterrence is one of the important aspects of the sentencing of the Court.

Now in your case I would have imposed a sentence of 3 years' imprisonment but I reduced that to 2 years because of the need to take a third off and because of matters favourable to yourself, particularly your fast track plea and your undertaking rehabilitation, and the fact that I find that not all of this quantity was involved in the commercial enterprise I am prepared to reduce the sentence to one of 18 months.

The most important issue really for you is whether it is possible in the circumstances in which I find you for me to suspend that term of imprisonment, and I start by saying it's highly unusual to even consider it. Considering it in your case because of the commercial nature, even though for a small amount, it does seem to me that the interests of the community and the need for general deterrence would stop me from suspending your term of imprisonment."

14 These reasons disclose no error. In the first paragraph, the sentencing Judge correctly observes as a matter of fact that, for the reasons she gives, a sentence of immediate imprisonment would usually be imposed. It is the case that immediate imprisonment is the type of sentence customarily imposed for drug dealing: The State of Western Australia v Andela [2006] WASCA 77. In the second paragraph, the sentencing Judge determines the appropriate term of imprisonment, whether it be suspended or served immediately. In the final paragraph, the sentencing Judge in effect considers whether in the circumstances of this case the option of suspended imprisonment was appropriate (or, to the same effect, whether immediate imprisonment was the only appropriate sentencing option). Proper consideration was given to s 39(3) of the Sentencing Act. I would dismiss this ground.

15 The third ground of appeal is in terms that the sentencing Judge's "discretion miscarried when she determined not to suspend the

[appellant's] term of imprisonment". I infer this is a claim that the sentence was manifestly excessive, being outside the range of a sound sentencing discretion. The type of sentence imposed in this case was not manifestly excessive for the reasons given by the sentencing Judge.

17 PULLIN JA: This is an appeal against a sentence of 18 months' imprisonment, imposed by Yeats DCJ on 21 June 2005.

18 The appellant pleaded guilty in the District Court to one count of possessing methylamphetamine with intent to sell or supply. Yeats DCJ backdated the term of imprisonment to 20 June 2005, and ordered that the appellant be eligible for parole. The appellant applied for bail pending his appeal against sentence. The exceptional reasons relied on were that the non-parole period of his custodial sentence would be entirely or substantially served by the time his appeal came on for hearing, and that the appeal had a real prospect of success. Roberts-Smith JA granted bail upon hearing the application on 27 July 2005.

19 The facts of the offence were as follows. At about 12 pm on Thursday, 14 April 2005, investigators of the Gang Response Unit executed a search warrant at the appellant's work address in Inglewood. The appellant arrived in his car about an hour and a half later, while the search was still being conducted. A search of the appellant's backpack, found in his car, revealed two metal tins. The metal tins contained a total of 6.739 grams of methylamphetamine, split up into 13 small plastic clip seal bags. The largest amount was found to be 25 per cent pure. The drugs had a street value of $4170.

20 During a subsequent police interview, the appellant admitted that the drugs were his. He said he had purchased them for $390 the day before off an unknown person in Forrest Chase in Perth. He said that the drugs were for his own personal use but he would share them with his friends if asked. While searching the appellant's backpack, the investigators found a notebook containing notations which appeared to be drug transactions conducted by the appellant. The appellant's explanation was that these were records of his winnings and losses in poker games. The appellant also had $225 cash in his possession, which he could not explain.

21 Given the packaging and quantity of the drugs, and in particular the notebook, the sentencing Judge said she was quite satisfied beyond a reasonable doubt that it was a commercial enterprise. However, her Honour indicated that she would take into account the fact that the

appellant himself was a heavy user and so an amount of that was for his own use. She also accepted that some was to be shared with friends without actually selling it, and therefore she did not think the commercial aspect applied to all of the 6.739 grams.

22 The antecedent report before the sentencing Judge confirmed that the appellant had one minor conviction for possession of cannabis for which he received a fine. That offence occurred more than seven years prior to the commission of the instance offence. Annexed to the appellant's affidavit were two character references and a report from Holyoake, the Australian Institute for Alcohol & Drug Addiction Rehabilitation, indicating that the appellant had commenced a programme.

23 The appellant's personal circumstances included that he was 25 years old, and had the one prior conviction mentioned above. He had completed an upholstery apprenticeship, and eventually established his own business manufacturing and upholstering furniture. As a result of his imprisonment, that business has been forced to close down. At the time of his bail application, the appellant deposed that he was currently in a stable relationship with a woman who has a young child, to whom he had become like a father figure, and that he provided financial assistance to his elderly parents. He also stated that he had two brothers, both working, and a sister.

1. The learned sentencing Judge failed to give proper consideration to s 39(2)(e) - (h) of the Sentencing Act 1995 (WA);

2. The learned sentencing Judge failed to consider adequately or at all the imposition of a suspended sentence;

3. The learned sentencing Judge's discretion miscarried when she determined not to suspend the appellant's term of imprisonment.

25 On 21 June 2005, s 39(2)(e) - (h) of the Sentencing Act 1995 (WA) provided for the imposition of an intensive supervision order, a suspended imprisonment or a term of imprisonment by a court when sentencing an offender. Counsel for the appellant submitted that upon accepting that the commercial aspect of the offence did not apply to all of the 6.739 grams, the sentencing Judge ought to have determined what amount was for the appellant's own use, what amount was to be shared with friends and to what amount the commercial aspect could be said to apply. The submission is that by failing to determine these quantities, the sentencing Judge failed to inform herself of those factors that would enable her to give proper consideration to s 39(2)(e) - (h).

26 This submission is not supported by any authority. In Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [70], the High Court said that the selection of the weight of a drug as the chief factor to be taken into account in sentencing represents a departure from fundamental principle. As well as considering quantity, the sentencing Judge also had regard to the fact that the 6.739 grams of methylamphetamine found in the appellant's possession were divided amongst 13 small plastic clip seal bags. Particular importance was placed on the notebook, also found in the appellant's backpack. Her Honour accepted that the notations it contained appeared to be drug transactions, a submission which the appellant's counsel expressly declined to challenge. Based on these factors, the sentencing Judge was quite satisfied that a commercial aspect applied to some, though not all, of the 6.739 grams. Under these circumstances, it was open to the sentencing Judge to sentence the applicant upon the basis that he was both a user and a dealer, without making any specific finding as regards the quantity which would have been sold or supplied: R v Marker [2002] WASCA 282; (2002) 135 A Crim R 55 at [113] - [116] per Steytler J.

27 Her Honour was under no obligation to determine the precise quantities of methylamphetamine that were intended for personal, shared or commercial use. This ground is without merit.

28 By ground 2, the appellant contends that the learned sentencing Judge failed to consider adequately, or at all, with regard to the applicable law the imposition of a suspended sentence.

29 The appellant relies on the passage in Roberts-Smith JA's judgment in Samuel v The State of Western Australia [2004] WASCA 154 at [35] which reads:

"The High Court has made it clear that it would be an error of law to conclude that a sentence of imprisonment is appropriate and only then consider whether it can be suspended. The Court held in Dinsdale v The Queen [2000] HCA 54; (2000) 175 ALR 315 [202 CLR 321] that such an approach reverses the statutory process."

"However, despite the approach laid down by the High Court in Dinsdale, the learned sentencing Judge fell into error when she determined to impose a term of immediate imprisonment of 18 months and then, having done that, turn to the question of whether or not such should be suspended."

31 What is said in these submissions, and what was said in Samuel's case, requires a close consideration of Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 and Samuel's case. In Dinsdale, a District Court Judge had sentenced an offender to concurrent terms of suspended imprisonment for two sex offences. The Court of Criminal Appeal allowed a prosecution appeal and ordered immediate imprisonment. All five Judges in the High Court concluded that the sentence passed was not manifestly inadequate as the Court of Criminal Appeal had decided and concluded that the Court of Criminal Appeal had erred in considering that the discretion to impose a suspended sentence was confined by considerations relating to rehabilitation and mercy. In the course of their judgments, reference was made to the provisions of the Sentencing Act and what was required to be done by sentencing Judges when considering whether a suspended imprisonment was the appropriate sentencing option. There has been some uncertainty created by Dinsdale and so it is important to set out what each of the Judges said. Gleeson CJ and Hayne J said at 327 - 328:

"[12] ...The Court concluded that the offences committed by the appellant 'were rightly found to be of sufficient seriousness to require the punishment of imprisonment to be imposed', but concluded that because 'there was no rehabilitation process going on which merited the support of a suspended sentence' there was no reason shown which 'dictated a merciful disposition of the case'.

[13] This inverts the order in which the statute requires a sentencing judge to consider matters. The sentencing judge must first decide the kind of punishment to be imposed. In this case that was understood as requiring a choice between imposing a term of suspended imprisonment and imposing imprisonment which the appellant would have to serve immediately. Only if satisfied that it is not appropriate to impose a term of suspended imprisonment may the judge impose a term of imprisonment which is to take effect immediately. The Court of Criminal Appeal considered how long a period of incarceration (immediate or suspended) the appellant's conduct warranted and then searched for reason 'in mercy' to suspend that term. This is not what s 39(3) of the Act required. Nor was it required by either s 6(4) or s 76(2) of the Act. Section 6(4) provides:

'A court must not impose a sentence of imprisonment on an offender unless it decides that -

(a) the seriousness of the offence is such that only imprisonment can be justified; or

Section 76(2) provides:

'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.'

[14] Sections 6(4) and 39(3) reflect the principle of sentencing that imprisonment is a punishment of last resort. Section 76(2) also reflects that principle, and the related consideration that committing a further offence during the period of suspension should not produce an unintended consequence.

[15] No doubt, under s 6(4), a sentencing judge must determine whether imprisonment is warranted and, under s 76(2) must fix the length of the term which would otherwise be appropriate. Neither step must be allowed, however, to obscure the need to decide whether suspended imprisonment is an appropriate disposition of the matter. Only if it is decided that it is not appropriate may a court impose a term of immediate imprisonment.

[16] Because the resentencing by the Court of Criminal Appeal was flawed, the sentence imposed by that Court cannot stand. But the error which the Court of Criminal Appeal committed in resentencing the appellant is an error which also reflects upon the opinion which the Court formed about the adequacy of the sentence imposed on the appellant. The adequacy of that sentence could not be judged except against the standards of sentencing that are set, in fundamentally important respects, by the Act. As we have said, the Act requires a court passing sentence to decide first whether a sentence of suspended imprisonment could properly be imposed, before deciding to impose a sentence of actual imprisonment. It follows that the adequacy of the sentence passed by a trial judge is not to be determined by looking first at the length of term of suspended imprisonment which was imposed and only then deciding whether, 'in mercy', the prospects of the offender's rehabilitation were such that the sentence can be suspended. Adequacy principally depended, in the present case, upon whether suspended imprisonment was inappropriate. "

32 The opening sentences in [13] might suggest that Gleeson CJ and Hayne J considered that a sentencing Judge should first decide whether suspended imprisonment might be imposed without considering the length of the term to be suspended. However, in my view, their Honour's judgment read as a whole, does not suggest that. This is because towards the end of [13] their Honours refer to s 76(2) of the Sentencing Act and then in [15] conclude that "a sentencing judge must determine whether imprisonment is warranted and, under s 76(2) must fix the length of the term which would otherwise be appropriate." Their Honours referred to the fact that "neither step" must be allowed to obscure the need to decide whether suspended imprisonment is an appropriate disposition. This entirely consistent with the judgment of Kirby J, who said in his reasons.

"[79] The common failure of Parliaments to state expressly the criteria for the suspension of a term of imprisonment has led to attempts by the courts to explain the considerations to which weight should be given and the approach that should be adopted. The starting point, given emphasis by the terms of s 76(2), is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of 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'." (Citations omitted)

"Moreover, the scheme of the legislation, and the two steps which s 76(1) and (2) of the Act requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term. This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the court's mercy. On the contrary, the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of 'all the circumstances'. This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment." (Citations omitted)

34 At [87] his Honour again referred to the "two-step approach" when he said:

"... Requiring the primary judge, asked to suspend a sentence of imprisonment, to consider anew all of the relevant circumstances both reinforces the two-step approach which the statute mandates and facilitates a desirable flexibility in sentencing options that permits, in a particular case, the exploration of alternatives to immediate custodial punishment." (Citations omitted)

35 In [89] his Honour referred to the "second step" when he said:

"The Act obliged the primary judge, in the second step, to reconsider and give renewed attention to all the circumstances of the case. This is what I take Viol DCJ to have done. No occasion therefore arose for appellate intervention in the primary judge's discretion or the order which he made suspending service of the sentence of imprisonment."

36 In [85] which I have quoted above, his Honour supported the last sentence by reference to what was said by Ipp J in R v Liddington (1997) 18 WAR 394 at 402 where his Honour said, beginning at 401:

"Once a suspended sentence is regarded merely as one of the sentencing options open to a Judge, it should be employed as a sentencing disposition whenever warranted by all the circumstances of the case. There should be no rigid rule as to the primacy of any particular circumstance, and all factors which could possibly be relevant should be taken into account. Such factors would include the nature and seriousness of the offence, and all aggravating and mitigating circumstances, including circumstances relating to the commission of the offence and those personal to the offender. This is so notwithstanding that 'double weight' might have to be given 'to some factors for which the Judge has previously made allowance [when determining the length of the period of imprisonment]': see R v P [1992] FCA 626; (1992) 39 FCR 276 at 285."

37 Gaudron and Gummow JJ agreed with Kirby J that the reasons of the Court of Appeal did not disclose what it was that constituted error. They also agreed with Kirby J, for the reasons given, that the sentencing Judge considered the range of relevant considerations, and finally at [26] agreed with Kirby J that the power to suspend given by s 76(1) of the Sentencing Act is not confined by reference wholly, mainly or specially to the effect the suspension would have on the rehabilitation of the particular offender.

38 As a result of this consideration of Dinsdale, it can be seen that both the Chief Justice, Hayne and Kirby JJ expressly considered that there were two steps involved in deciding whether to impose a suspended sentence. The first step is to set the appropriate term of imprisonment.

39 Parker J in R v Latham [2000] WASCA 338; (2000) 117 A Crim R 74 at [10] and [18] discussed Dinsdale, said that the judgments in Dinsdale may "leave open the possibility" of some difference of understanding about whether a particular order of approach must be followed, but in his discussion in the paragraphs I have referred to, dispels the view that there is a difference of approach.

40 Taking all of the above into account, I make the following comments about the sentencing process:

(a) Section 39 refers to the sentencing options open to a Judge when sentencing a natural person. Section 39(2) sets out a range of sentences from the least serious to the most serious. Section 39(3) requires a court not to use a sentencing opinion in subs (2) unless satisfied, having regard to Div 1 of Pt 2, that it is not appropriate to use any of the options listed before that option.

(b) Section 76 of the Sentencing Act imposes a constraint which applies when a Judge is considering whether a suspended sentence is the appropriate option. The section makes it clear that a Judge may not decide in the abstract that a suspended sentence is the appropriate option. By this, I mean a Judge may not decide that a suspended sentence is appropriate without considering the length of the term of imprisonment which might be imposed and then suspended. Section 76 requires a Judge to take the first step of settling upon a term of imprisonment (or, if more than one offence, the aggregate sentence) and this must be the term which would be imposed if a suspended sentence were not appropriate.

So, by way of example, if a Judge arrives at a conclusion pursuant to s 76(2), that the appropriate sentence of imprisonment (if not suspended) would be, say, 8 years, then a suspended sentence could not be imposed. A suspended sentence may only be imposed if the sentence of imprisonment, appropriate in the circumstances, would be less than 60 months: s 76(1).

(c) It is clear from Dinsdale that if the sentencing Judge concludes that an appropriate sentence of imprisonment s 60 months or less, then he or she must then take the second step of considering whether to suspend the sentence. The considerations to be taken into account in deciding whether to suspend the sentence must not be confined merely to questions about whether rehabilitation merited suspension or whether it was merciful to suspend the sentence or not. The considerations applicable to the setting of an appropriate term of imprisonment are again relevant to the issue of suspension.

(d) Finally, if the Judge concludes that suspension of the term should not be ordered, then the Judge will then impose the term of imprisonment determined in the first step.

41 A Judge does not invert the process required by s 39(2) and (3) merely because the Judge first discusses and arrives at what would be the appropriate term of imprisonment before discussing whether to suspend the sentence. To do so is the correct approach.

42 Where it is evident that the Judge has overlooked the possibility of suspending the sentence of imprisonment, there will be error in failing to consider all sentencing options. I hasten to add, however, that a sentencing Judge is not in every case required to mechanically work through each of the options set out in s 39(2). See Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998 at 6 - 7; Samuel (supra) at [31] - [32]. There are many cases where a serious offence has been committed and where sentence of imprisonment will be imposed without any reference to some of the other sentencing options listed in s 39(2)(a) to (f).

43 If what was said by Roberts-Smith JA at [35] in Samuel is to be read as suggesting any approach different from that set out above, then it would be contrary to Dinsdale . However, reading Roberts-Smith JA's judgment as a whole, and noting particularly what his Honour said in [30], [38] and [39], it should be understood to mean no more than that the sentencing Judge in that case erred by concluding that a sentence of immediate imprisonment should be imposed without first giving consideration to suspended imprisonment as required by s 39(3) of the Sentencing Act.

44 I now turn to the circumstances of this case. Her Honour said:

"The most important issue really for you is whether it is possible in the circumstances in which I find you for me to suspend that term of imprisonment, and I start by saying it's highly unusual to even consider it. Considering it in your case because of the commercial nature, even though for a small amount, it does seem to me that the interests of the community and the need for general deterrence would stop me from suspending your term of imprisonment."

45 To allege that the sentencing Judge failed to consider a suspended sentence "at all" in the face of those statements is, with respect, patently absurd. To submit that the sentencing Judge did not "adequately" consider a suspended sentence is unsustainable in face of the quoted passage. Clearly her Honour did give proper consideration to the option of a suspended sentence and then dismissed it.

47 Ground 3 asserts that the sentencing Judge's discretion miscarried when she determined not to suspend the appellant's term of imprisonment. The principles according to which an appellate court may interfere with a discretionary judgment by a sentencing Judge are well-established. As the High Court observed in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.

48 In Vogel v The Queen [2002] WASCA 261 at [8], Wheeler J said:

"This Court has now noted on a number of occasions that methylamphetamine is regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs: Darwell v R (1997) 94 A Crim R 35. The major sentencing considerations in relation to offences of this kind are general and personal deterrence, and there has been a 'firming up' of sentences in this area in the last 5 years or so, based upon the view taken by the courts that sentences imposed in the past do not seem to have been an adequate deterrent: Bellissimo v R (1996) 84 A Crim R 465."

49 It is often not useful compare sentences imposed in other cases, as each case turns upon its own facts and circumstances: R v Hafner [2002] WASCA 211 at [23]; Samuel (supra, at [21]). Nevertheless, it is my view that a sentence of 18 months' immediate imprisonment is within the appropriate range of sentences available for this type of offence: see Vogel (supra); Samuel (supra, at [22]); Schlenka v The Queen [2004] WASCA 142.

50 The sentencing Judge referred to the prevalence of this type of offence, the seriousness of methylamphetamine in the hierarchy of prohibited drugs, the fact that the appellant possessed the methylamphetamine in a commercial enterprise and the need for general deterrence as factors warranting a term of immediate imprisonment. Her Honour allowed a reduction to account for the appellant's fast-track plea and efforts at rehabilitation, and the fact that not all of the quantity of methylamphetamine was part of the commercial enterprise. As I have already stated, she declined to suspend the term of imprisonment on the basis of the commercial nature of the offence, the interests of the community and the need for general deterrence.

51 In my opinion, her Honour was correct in her assessment of these factors. No error in the exercise of the sentencing Judge's discretion can be shown. I would dismiss this ground, and dismiss the appeal.

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

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Duong v The State of Western Australia [2006] WASCA 110 (20 June 2006)

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