Court of Appeal (WA)|2001-06-21|Before: Lure J

McGregor v Connor & Anor [2001] WASCA 187 (21 June 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : McGREGOR -v- CONNOR & ANOR [2001] WASCA 187

Criminal law - Use and possession for personal use of amphetamines - Appeal from Magistrate - Whether sentences imposed were manifestly excessive - Test to apply in considering whether to suspend imprisonment - Whether custodial sentence appropriate - Turns on its own facts

Australian Coal & Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Matsebula v Vandeklashorst [2000] WASCA 141

Vickers v Bailey [2000] WASCA 136

1 McLURE J: The appellant was charged in the Court of Petty Sessions Bunbury that on 27 April 2001 he had in his possession a prohibited drug, namely amphetamines in breach of s 6(2) of the Misuse of Drugs Act.

2 On 4 May 2001 the appellant pleaded guilty to the charge ("possession conviction"). The learned Magistrate sentenced the appellant to 4 months' imprisonment on this charge.

3 The possession conviction placed the appellant in breach of a community based order ("CBO") imposed in respect of two convictions entered in January 2001. In particular, on 25 January 2001, the appellant pleaded guilty to and was convicted in the Court of Petty Sessions Bunbury on charges that on 20 January 2001 he:

(a) used a prohibited drug, namely amphetamines in breach of s 6(2) of the Misuse of Drugs Act ("use conviction");

(b) had in premises one Sony play station console, one Alpine car CD stacker, one Alpine car stereo fascia and one Alpine car stereo remote control reasonably suspected of having been stolen or unlawfully obtained in breach of s 69 of the Police Act.

4 On 25 January 2001 the Magistrate placed the appellant on a CBO for a period of 12 months on condition that the appellant do 80 hours unpaid work and undergo a programme requirement involving substance abuse counselling.

5 Pursuant to s 128 of the Sentencing Act 1995 the Magistrate hearing the matter on 4 May 2001 had the power to deal with the appellant under s 130 of the Sentencing Act. Section 130 empowers the Magistrate to confirm or amend the CBO or cancel it and sentence the appellant for the offence for which the CBO was imposed "in any manner the court could if it had just convicted the person of that offence": s 130(1)(a)(iii) of the Sentencing Act.

6 On 4 May 2001, after sentencing the appellant on the possession conviction, the Magistrate sentenced the appellant to 4 months' imprisonment on the use conviction and 4 months' imprisonment on the unlawful possession of goods conviction. The sentences for the convictions entered in January 2001 were made concurrent and cumulative with the sentence for the possession conviction giving a total head sentence of 8 months' imprisonment.

7 The appellant was given leave to appeal on the following grounds:

1. The sentences imposed for the charge of unlawful possession, use of prohibited drug, and possession of a prohibited drug, were manifestly excessive -

(a) The applicant pleaded guilty at the first opportunity.

(b) The applicant does not have an extensive criminal record.

(d) The applicant's personal circumstances called for a more lenient sentence.

2. The learned Magistrate erred in the exercise of his discretion by failing to take into account the totality of the circumstances in which the appellant had breached the Community Based Order and therefore reached the wrong conclusion when he said that "any aspect of rehabilitation has now gone out the window".

(a) Counsel for the applicant was not given adequate opportunity to advise the learned Magistrate why the Community Service Component of the Community Based Order was not completed in the usual time-frame.

(b) The learned Magistrate drew an adverse inference from the statement that the applicant's girlfriend had gone "up north" prior to his sentencing on 25 January 2001.

(c) The learned Magistrate incorrectly attributed the reason for his brother Magistrate giving consideration to the opportunity for rehabilitation to the statement that the applicant was going to go to Geraldton to work with his father.

(d) The learned Magistrate did not attribute any significance to the personal difficulties that the applicant experienced after the Community Based Order was made on 25 January 2001.

(e) The learned Magistrate did not attribute any significance to the submission that the applicant wanted to "get himself out of the Bunbury scene whether it be with his girlfriend or whether it was with his father in Geraldton.

8 At the hearing on 25 January 2001, Ms Tiresi (who appears to be a community corrections officer) informed the Court without objection that the appellant had completed 4 years in the navy from the age of 16 and had since worked in a variety of fields as a labourer and tried to establish himself as a roof painter but had been unemployed for six months. The Court was advised that the appellant's father resided in Geraldton and the appellant was planning to move to that city in the near future to work on cray boats. At that stage the appellant had been using drugs for about a year and his use had recently escalated to using amphetamines seven times a week. It was said the appellant accepted that he had a significant problem with amphetamines and was prepared to undergo a programme and treatment for substance abuse. The Magistrate's stated concern at the hearing in January 2001 was that the appellant was moving from "the second biggest drug town in Western Australia to the first" (Geraldton). The appeal book does not contain any record or statement of the facts of the charges dealt with in January 2001.

9 At the May 2001 hearing the Court was informed that the use conviction related to the possession of a syringe. The possession conviction was for approximately one gram of amphetamine for the appellant's personal use. In relation to the unlawful possession of goods, the Court was advised that (notwithstanding the complaint also referred to a Sony play station) the only item in the appellant's possession was a CD player which was purchased through a friend of a friend approximately 12 to 18 months earlier and which had no bearing or relationship with the appellant's substance abuse.

10 It was accepted by the appellant that he had not complied with the CBO in that he had only done eight hours' unpaid work and had attended two out of four rehabilitation sessions that had been prescribed for him.

11 The appellant relied on his personal circumstances to explain his failure to comply with the CBO. They were in substance that prior to the January 2001 hearing, the appellant and his girlfriend had separated and she had gone to Port Hedland. Prior to the separation it was his intention to go with her to Port Hedland and obtain employment because he wanted to get out of the drug scene in Bunbury. After the convictions in January 2001, the appellant had been attempting to re-establish the relationship with his former girlfriend and hoped to go to Port Hedland. The Magistrate expressed a degree of cynicism about these propositions because of the advice given to the Court in January 2001 that the appellant intended to go to Geraldton to work. The Court was informed that as a result of his personal circumstances, the department had given the appellant some latitude in relation to the performance of his CBO obligations.

12 The Court was also informed that the appellant's use of amphetamines had reduced to one every two to three days. At the time he was sentenced in May 2001 the appellant was 25 years old. There was no pre-sentence report.

13 The appellant had three convictions prior to those entered in January 2001. The first related to the demerit point suspension of a motor driver's licence, the second was for common assault (a 12-month CRO was imposed) and the third was for an unlicensed vehicle (for which he was fined $200). Between 25 January 2001 and May 2001 the appellant was convicted of the demerit point suspension of a motor driver's licence and possessing a controlled weapon for which he was fined $200.

"I think it's not unreasonable for the court and the community to expect that a person who is afforded the opportunity of a court disposition that is more consistent with treatment as distinct from punishment, that the person take up the opportunity and address it with some degree of commitment, not only for the benefit of himself or themselves but also for the ultimate benefit of the community.

When a person does so the court generally takes a dim view of persons who turn their back on the commitment made to the court to reform and rehabilitate. That's precisely what you've done. You've taken the easy option on the falsity that you would commit yourself to rehabilitation. Necessarily, having received a favourable response then proceeded quite happily with your use and possession of amphetamine.

Amphetamine is of growing concern within the community and particularly amongst the younger members of the community. In fact, one might be prepared to say that in my experience in this particular geographical location the incidents in which persons are brought before this court for amphetamine use is now alarming.

I would have thought in every respect your complete denial of the opportunity and denial of the obligations to maintain an appropriate course of conduct within the community as regards your drug use is now inconsistent with the continuance of that rehabilitation process. I propose to deal with you today for the offence of 27th April and those for which you were dealt with on 25th January.

It seems to me that in all the circumstances what is required is a disposition that reflects both your circumstances personally and necessarily the deterrent considerations to both you specifically and the community generally. As regards the possession on 27th April you were sentenced to 4 months imprisonment.

In respect of the matters of 20th January - the use - you're sentenced to 4 months' imprisonment and in respect of the possession of the goods reasonably suspected of having been stolen or unlawfully obtained, 4 months' imprisonment. The matters of 20th January are concurrent one with the other and the matter of the possession on the 27th is cumulative giving you a total head sentence of 8 months. There's orders for destruction. Please stand down. Yes, Mr Barker?

MR BARKER: I would ask that if you're not minded to suspend the term of imprisonment you give reasons.

HIS WORSHIP: I'm not and that's why I indicated any aspect of rehabilitation has now gone out the window which would deny the prospects of suspension of the prison term. Stand down, Mr McGregor."

15 What is meant by "manifestly excessive" was described in the joint judgment of Gleeson CJ and Hayne J in R v Dinsdale [2000] HCA 54; (2000) 115 A Crim R 558 in the following terms at [561]:

"A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing Judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short."

16 In the written and oral submissions delivered on behalf of the appellant, he relied on a specific error of principle under the rubric of the "manifestly excessive" ground. In particular, it was submitted the Magistrate erred by focusing solely on rehabilitation in refusing to suspend the term of imprisonment. In making this submission, the appellant was not intending to concede that a term of imprisonment was justified under s 6(4) of the Sentencing Act. Section 6(4) prohibits a court from imposing a sentence of imprisonment unless the court decides that:

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

17 The Court of Criminal Appeal in this State has noted the possibility of differences of understanding in the reasoning of their Honours in Dinsdale as to the order of approach to be followed by a sentencing Judge when considering whether or not a suspended sentence is to be imposed: Latham v The Queen [2000] WASCA 338 per Parker J at [10]; Colledge v The Queen [2001] WASCA 132 per Murray J at [26]. Applying Dinsdale, Parker J in Latham v The Queen identified a two-step process. Firstly, the Court has to conclude that sentence to a term of imprisonment and not some lesser sentence is called for (s 6(4), s 39(3) and s 76(2) of the Sentencing Act 1995). Only if a sentence of imprisonment is called for is it necessary and appropriate to proceed to the second step which is to determine whether such term of imprisonment should be suspended for a period set by the Court.

18 The power to suspend imprisonment given by s 76(2) of the Sentencing Act is not confined by reference wholly, mainly or specially to the effect the suspension would have on the rehabilitation of a particular offender: Dinsdale per Gaudron and Gummow JJ at 565; per Kirby J at 579; per Gleeson CJ and Hayne J at 564.

19 Rather, the same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term. This means 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 "whether aggravating or mitigating" in deciding whether to suspend the term of imprisonment: Dinsdale per Kirby J at [85]; per Gaudron and Gummow JJ at [26].

20 Prima facie, the penultimate sentence in the Magistrate's reasons suggests that he regarded rehabilitation as the only or at least the primary consideration in determining whether or not to suspend the term of imprisonment. That would be an error. The respondent says it is necessary to read the Magistrate's reasons in their entirety and to infer that the Magistrate also took into account the factors mentioned in his reasons for concluding that a sentence of imprisonment should be imposed.

21 The Magistrate in his reasons for imposing a term of imprisonment addressed the expectations of the Court and community of a person given the benefit of, inter alia, a CBO in terms that a person would take up the opportunity and address it with commitment. The Magistrate also said the appellant had made a commitment to reform and rehabilitate to the Court who gave the CBO and intentionally turned his back on the commitment by committing a further offence and breaching his CBO obligations. The Magistrate regarded this conduct as inconsistent with continuation of the rehabilitation process and said that what was required was a disposition that reflected the appellant's personal circumstances and "necessarily the deterrent considerations to both you specifically and the community generally".

22 I accept that the Magistrate's remarks concerning his refusal to suspend imprisonment must be read in context. However, even if it is open to infer that the Magistrate took into account the considerations leading to the decision to imprison in deciding against a suspended sentence, it remains the case that the reasons disclose that the Magistrate erred by placing undue weight on rehabilitation in refusing to suspend imprisonment.

23 Further, the Magistrate's reasons raise for consideration the question whether the sentences imposed on 4 May 2001 were increased to mark his disapproval of the appellant's conduct after the original sentencing in January 2001. Such a course is impermissible: R v Wroblewski (1999) 105 A Crim R 129 at 130 and 134. Anderson J said at page 134-135:

" ... the sentence that is considered to be proportionate to the crime could never be increased in order to mark the Court's disapproval of subsequent conduct. That would offend the basic sentencing principle laid down in cases such as Veen v The Queen (No 2) [1988] HCA 14; (1987-1988) 164 CLR 465; 33 A Crim R 230 and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348; 40 A Crim R 391. In the latter case, Mason CJ, Deane, Dawson, Toohey and McHugh JJ said (at 354; 395):

' ... a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances.'

See also Wicks v The Queen (1990) 3 WAR 372 at 379; (1989) 44 A Crim R 147 at 378 - 379, per Malcolm CJ.

Therefore, in my opinion, in re-sentencing her Honour first had to evaluate the seriousness of the offence itself and then see to what extent it was still proper to mitigate the appropriate penalty for that offence. In weighing up the mitigating factors, I see no reason why her Honour was not entitled to look at the matters personal to the applicant as they appeared at the time at which she had to sentence the applicant."

24 Indeed, s 7(2)(c) of the Sentencing Act expressly states that an offence is not aggravated by the fact that a previous sentence has not achieved the purpose for which it was imposed.

25 In view of the approach to be taken to the interpretation of a Magistrate's reasons (Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998), I am not prepared to infer from the Magistrate's reasons that he increased the sentences to reflect his disapproval of the appellant's conduct after the imposition of the CBO.

26 I turn now to the question whether the sentences of imprisonment are manifestly excessive. The use and possession convictions under s 6(2) of the Misuse of Drugs Act attract a penalty of a fine not exceeding $2000 or imprisonment for a term not exceeding 2 years or both. The researches of counsel for the parties (and my own) did not reveal any established pattern of sentences for offences of the kind the subject of the use and possession convictions. Indeed, convictions for such offences do not seem to have been considered by this Court. Counsel for the appellant indicated that in his experience in the Court of Petty Sessions, the usual disposition is a fine or other sentence short of imprisonment. Counsel for the respondent was not in a position to contradict the statement.

27 The unlawful possession of goods conviction under s 69 of the Police Act also attracts a penalty of $2000 or a term of imprisonment not exceeding 2 years. The unlawful possession conviction was unrelated to the appellant's substance abuse.

28 In my opinion, the circumstances of this case, both objective and subjective, did not justify a term of imprisonment for any of the convictions. Those circumstances include the facts and nature of the offences, the appellant's short record with no other conviction of any significance in relation to the convictions for which he was sentenced and his early pleas of guilty on both occasions.

29 Although matters relating to rehabilitation are relevant to the Court's consideration of the appropriate sentence by reference to the sentencing options in increasing order of severity (s 39(2) and (3) of the Sentencing Act and assuming imprisonment is an option under s 6(4)), they cannot be the sole or primary consideration in the exercise of the sentencing discretion. As with all exercises of a discretionary judgment, the weight to be given to a particular factor such as rehabilitation will derive from a consideration of all the circumstances as a whole. In any event, the Magistrate's conclusion that all hope of rehabilitation was lost is not supported by the evidence. There is no doubt the appellant's conduct in reoffending and failing to fully comply with the CBO was greatly discouraging. However, the Magistrate appeared to have no regard to the reduction in the frequency and amount of the appellant's drug use, his partial completion of his CBO obligations, the latitude given to the appellant in relation to the performance of his CBO obligations by the relevant authority and the appellant's personal circumstances which were said to have contributed to his conduct. For these reasons, I am of the opinion that custodial sentences were not appropriate. It follows from this conclusion that a suspended term of imprisonment is not an available sentencing option in this case.

30 As the Magistrate erred in the exercise of his sentencing discretion, it is open to this Court to exercise its own sentencing discretion in substitution if it has the necessary materials: House v The Queen [1936] HCA 40; (1936) 55 CLR 499 at 505.

31 I propose to allow the appeal to quash the sentences of imprisonment imposed on the appellant on 4 May 2001 for the use conviction, the possession conviction and the unlawful possession of goods conviction and order the release of the appellant from prison. Having regard to the period of imprisonment already served and all the relevant circumstances, I intend to impose a CBO for a term of 6 months on condition that the appellant do 60 hours' community service and undergo a programme requirement under s 66 of the Sentencing Act.

McGregor v Connor & Anor [2001] WASCA 187

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Judgment (61 paragraphs)

McGregor v Connor & Anor [2001] WASCA 187 (21 June 2001)

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Cases Cited (6)