MITCHELL -v- PURVIS [2016] WASC 351 (1 November 2016)

No authority to drive - disqualified - s 49(1)(a) Road Traffic Act 1974

Obstruct public officer -s 273(4) Road Traffic Code

Possess stolen property (credit card) - s 417(1) Criminal Code

Possess stolen property (cash) - s 417(1) Criminal Code

Possess cannabis with intent to sell or supply - s 6(1)(a) MDA

Possess cannabis with intent to supply - s 6(1)(a) Misuse of Drugs Act 1981

2 By an appeal notice filed on 30 August 2016, the appellant seeks leave to appeal against the sentences of imprisonment imposed. The other sentences, though not the subject of appeal, are relevant for contextual reasons.

1. The learned sentencing Magistrate erred in imposing an aggregate sentence that was of a length that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances, including those referable to the offender personally.
2. The learned sentencing Magistrate erred in imposing a sentence for the offence of possession of cannabis with intent to supply that was, in all of the circumstances, manifestly excessive.
3. The learned sentencing Magistrate erred in imposing a sentence for the offence of possession of cannabis with intent to sell or supply that was, in all of the circumstances, manifestly excessive.
4. The learned sentencing Magistrate erred in imposing a sentence for the offence of driving whilst disqualified that was, in all of the circumstances, manifestly excessive.
5. The learned sentencing Magistrate erred in failing to suspend the sentence imposed when, in all of the circumstances including those referable to the appellant personally, it was open to do so.

4 Grounds 2 and 3 are identical, but are each intended to relate to one of the two charges of possessing cannabis with intent to sell or supply, being charges PE 27449/16 and PE 34087/16.

5 The first ground relies upon the totality principle. The other grounds all allege, either specifically or by implication, that the individual sentences were manifestly excessive. Accordingly, no express errors by the magistrate are said to have been made. In these circumstances, it will not be necessary to refer to the magistrate's reasons in any great detail.

7 At about 12.10 pm on Saturday, 14 May 2016 the appellant drove a motorcycle with no registration plates in a southerly direction on Gilmore Avenue in Leda. He drove past police officers at an unknown speed that was estimated to be higher than the speed limit. He was then stopped and asked to provide his name and any identification papers. He was unable to provide any identification and ran from the scene into bushland nearby. Police officers pursued the appellant and apprehended him after a short distance.

8 After being arrested the appellant gave his name and date of birth. He was then searched by the police officers who located a black bag in which a smaller blue bag was found. Inside the blue bag were 14 individual clip seal bags containing cannabis. In total the cannabis weighed 30 g. In the larger black bag police found a set of scales, $321.05 in cash, a small quantity of methylamphetamine, a stolen credit card and a mobile telephone. On searching the telephone police viewed a message sent by the appellant which stated:

I got weed for sale and so where do you want me to go?

9 Included in this message was a picture of the motorcycle helmet the appellant was wearing next to what appeared to be a bag of cannabis. The appellant was arrested and taken to the Kwinana Police Station where he participated in an interview.

10 Subsequent enquiries determined that the motorcycle the appellant was driving was an unlicensed vehicle. The motorcycle's registration had expired on 16 September 2015. It was also established that the appellant had no authority to drive a motor vehicle as he had never held a Western Australian licence for that class of vehicle. He had also been disqualified from obtaining a driver's licence until 26 April 2022 after being convicted of other offences in the Rockingham Magistrates Court. At the time of driving the appellant had nine concurrent court suspensions from driving.

11 As a consequence the appellant was charged with possessing cannabis with intent to sell or supply (PE 27449), possession of methylamphetamine, (PE 27453), obstructing police by failing to provide his name or identification and running from the area (PE 27452), possession of stolen or unlawfully obtained property, which related to the $321.05 found in his bag (PE 27454), a second charge of being in possession of stolen and unlawfully obtained property relating to the credit card found in the bag in the name of another person which had been reported stolen from a vehicle on 13 May 2016 (PE 27455), using an unlicensed vehicle (PE 27450) and driving without authority (PE 27451). He was released on bail on these charges.

12 At about 5.40 pm on Friday, 17 June 2016 the appellant was sitting on a stationary black motorcycle on Grange Drive in Cooloongup. He was spoken to by police and provided his personal details and consented to his backpack being searched. Police again located a small blue bag inside the backpack. It contained four clip seal bags containing cannabis weighing in total approximately 6.75 g. A wallet and mobile telephone were also found. The wallet contained $1,410 in cash. The appellant claimed ownership of both the wallet and the mobile telephone.

13 Police searched the mobile telephone and found messages that had been sent by the appellant. Those messages read:

I gave you 70 and two 50s of weed last night. Let me know if you need a ball or whatever. I have got green too.

14 There were various messages to multiple people on the telephone relating to supplying drugs. The messages also included one with a photograph of several clip seal bags of what appeared to be cannabis.

15 The appellant was arrested and taken to the Rockingham Police Station. He participated in an interview and was then charged. These facts relate to the second charge of possessing cannabis with intent to sell or supply (PE 34087).

16 At about 9.00 pm on 9 June 2016 the appellant attended Rockingham general hospital. He sought treatment for facial injuries that he had sustained earlier that day. At about 12.15 am the following morning, the appellant was transferred to the xray department. He was seen by a doctor and told to wait for the nurse to call him for an xray. He was seated in an area that was normally out of bounds to the public. Whilst there he stole a gold iPhone 6 mobile telephone. He completed his xray and was discharged from the hospital. The person who owned the telephone later realised that it was missing and activated GPS tracking. This led police to the appellant's home in Calista. A search warrant was executed and the case for the mobile telephone was found but the telephone itself was not. The appellant was arrested and conveyed to the Kwinana Police Station where he was interviewed. He initially made no admissions but later led police to the location of the telephone, from where it was recovered.

17 The appellant is aged 26 years old and is the father of three children who live with his expartner. There have been difficulties in this relationship and this had resulted in him having limited access to the children. However, as at the date of sentencing, he had reconciled with his expartner to the extent that they were described as being friends and she was willing to facilitate him spending time with the children.

18 The appellant had been sentenced to a total effective sentence of 8 months' imprisonment on 14 December 2015 for unrelated offences. He was released from prison in early 2016. It was submitted to the magistrate that, on his release, the appellant's inability to spend time with his children had led to a relapse into substance abuse. He responded poorly to supervision at this time and failed to attend urinalysis as required. It was in this context that the offences the subject of this appeal occurred.

19 A presentence report in respect of the appellant was obtained and an oral update of that report was given on 8 August 2016. The appellant told the presentence author that he had purchased a motorbike on 13 May 2016 'as a project'. He said that he was aware that he had no authority to drive and that the motorbike was unlicensed. However, he made a decision to ride the motorbike in order to sell cannabis to an associate. He admitted that the 30 g of cannabis that was found in his possession on 14 May 2016 was for the purpose of sale. He said that on seeing police he panicked and ran off.

20 The appellant claimed that the cash found on him on 14 May 2016 was cash that he had drawn from his bank as a result of being credited with a Centrelink payment the previous day. He denied any knowledge of the stolen bank card found in his backpack. The claims regarding the cash and the bank card were inconsistent with his pleas of guilty and these explanations were not relied upon in the sentencing proceedings. However the fact that he made false statements in regard to these matters to the presentence report author undermines suggestions that he had fully accepted responsibility for his conduct and was remorseful.

21 The appellant also said that the methylamphetamine found in his possession was for his personal use and that he was selling cannabis in order to obtain funds to purchase methylamphetamine. He admitted stealing the mobile telephone from the hospital, however was unable to explain why. In regard to the second offence of possession of cannabis the appellant said that the 6 g possessed on this occasion was for his personal use. This, too, is inconsistent with his plea of guilty to possession with intent to sell or supply.

22 The appellant told the presentence report author that he had secured employment with a family member as a bricklayer. He intended to reside with his mother and have regular access to his children. A friend had offered transport to employment and other appointments. He said that he no longer owned a vehicle and denied any intention of purchasing another. He indicated an intention to engage in counselling.

23 The presentence report author stated that the future likelihood of compliance with court orders was questionable given the appellant's inability to complete previous periods of community supervision, including a conditional suspended imprisonment order and a short term parole order. It was noted that the current series of offences commenced less than six weeks following the appellant's release from custody on 1 April 2016 after serving a previous period of imprisonment. The appellant was not considered suitable for a further community based disposition.

24 The appellant has a lengthy criminal record, both as an adult and a juvenile. His record as an adult includes prior offences of obstructing public officers, possession of prohibited drugs and driving without authority. The offence committed on 14 May 2016 was the fourteenth such offence committed by the appellant as an adult. He had been convicted of such offences on 18 August 2010, 18 October 2010, 20 October 2010, 1 November 2010, 17 November 2010, 14 December 2010, 3 August 2011 (x 4), 25 July 2012 and 14 December 2015 (x 3). For the four offences for which the appellant was convicted on 3 August 2011, he was sentenced to 8 months' imprisonment on each suspended for 12 months. The next such offence for which the appellant was sentenced on 25 July 2012 did not breach the suspended sentence because that offence had been committed on 9 July 2011. The appellant was fined $1,200 for that offence. The three offences for which the appellant was dealt with on 14 December 2015 were committed on three different dates, 12 December 2013, 21 May 2015 and 8 June 2015. The appellant received sentences of 4 months' imprisonment for each of those offences which were to be served concurrently with each other and other sentences of imprisonment imposed at the same time.

25 Grounds 2, 3 and 4 each allege that the sentences imposed for individual offences were manifestly excessive. Ground 2 relates to the 7 month sentence imposed for the first offence of possession of cannabis with intent to sell or supply. Ground 3 relates to the 8 month sentence of imprisonment imposed for the second offence of possession of cannabis with intent to sell or supply. Ground 4 relates to the sentence of 8 months' imprisonment imposed for the offence of driving whilst disqualified.

26 A ground that alleges manifest excess asserts implied error. That is, in all the circumstances, including those personal to the appellant, the sentence imposed was not one that was open in the exercise of sound sentencing discretion. It is always important to bear in mind that the question on appeal against sentence where such a ground is asserted is not what the appellate court would do if it were the sentencer, but whether the sentence imposed in the court below was open to that court in the exercise of its discretion.

27 A sentence is manifestly excessive if it is unreasonable or plainly unjust. To determine whether a sentence is manifestly excessive it is necessary to view it in the perspective of the maximum penalty prescribed by law for the offence, the standard of sentences customarily observed with respect to that offence, the place that the criminal conduct occupies on the scale of seriousness of offences of the type and the personal circumstances of the offender. A sentence may be manifestly excessive because the wrong type of sentence has been imposed: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6].

28 The maximum penalty for the offence of possession of cannabis with intent to sell or supply is 10 years' imprisonment and/or a fine of $24,000 or both. The summary conviction penalty is 4 years' imprisonment and/or a fine of $5,000. The summary conviction penalty represents the jurisdictional limit of the Magistrates Court. It remains relevant to consider the statutory maximum penalty in assessing the seriousness of the offence. The maximum penalty for driving without authority is 18 months' imprisonment and/or a fine of between $1,000 and $4,000.

29 As to the standard of sentences customarily imposed, there is a wide range of circumstances in which offences of possession of cannabis with intent to sell or supply can occur. There is no established range for such offences. Penalties imposed have included fines through to sentences of immediate imprisonment. In Crilly v Gardiner [2011] WASC 140 a fine for $3,000 for possession of 278 g of cannabis was imposed (though this was an appeal against conviction rather than sentence). In Smith v Vuleta [2007] WASC 13 the appellant was sentenced to a community based order for possession of 300 g of cannabis with intent to sell or supply (however this was also an appeal against conviction). In Rodi v The State of Western Australia [No 2] [2014] WASCA 233, the appellant was convicted after trial on indictment of possession of 925.19 g of cannabis with intent to sell or supply and was sentenced to 12 months' imprisonment. Reference was also made to Sandwell v The State of Western Australia [2012] WASCA 15 and Waldron v The State of Western Australia [2010] WASCA 63 in both of which sentences of imprisonment of 12 months were imposed for much larger quantities of cannabis.

30 The respondent referred to The State of Western Australia v Atherton [2009] WASCA 148 in which the offender was sentenced to terms of 8 months' imprisonment in respect of each of two offences of possession of cannabis with intent to sell or supply involving 50.4 g and 133 g of cannabis. Reference was also made to Hobby v The State of Western Australia [2009] WASCA 108 in which the offender was sentenced to 6 months and 12 months' imprisonment respectively for two offences involving possession of 14 g and 56 g of cannabis, with intent to sell or supply.

31 The quantity of drugs found in the possession of the appellant on the two occasions he was apprehended by the police were not large. However the quantity of drugs is not always the most significant factor: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 and HNA v The State of Western Australia [2016] WASCA 165. The quantity of drugs seized may be relevant in assessing the harm that could be potentially caused by the substance in question. However, in this case the appellant admitted that he was conducting a business of selling cannabis in order to fund his methylamphetamine habit. Having regard to the text messages on his phone, it was apparent that the drugs found in his possession on each occasion represented only his stock in trade. This context puts the offending into a more serious category than the amounts involved might otherwise have indicated. Comparison with other cases merely on the basis of the amounts involved is unhelpful when this context is borne in mind.

32 As to the seriousness of the cannabis offences, the appellant was an admitted small time drug dealer. He was clearly in the business of purchasing wholesale and then weighing and packaging cannabis for onsale to customers. He engaged in this business in order to generate profits. The driving force was his own addiction to methylamphetamines, but this does not mitigate his conduct. The second offence was committed whilst the appellant was on bail for the first, which shows his persistence and determination to continue with his illicit business. In these circumstances, there was a strong need for personal as well as general deterrence.

33 As to personal circumstances, there was little by way of mitigation. The appellant had been caught by the police in possession of cannabis and on the first occasion had attempted to obstruct the police by fleeing the scene. The commission of the second offence whilst on bail for the first was a significant aggravating factor.

34 As regards the offence of driving without authority, it is not unusual for persistent offenders who have a long history of driving whilst disqualified to receive sentences of imprisonment to be immediately served. Whilst previous instances of the same kind of offending do not aggravate an offence and could not justify the imposition of a sentence greater than that which is otherwise appropriate, they do heighten the need for personal deterrence: Durward v Belton [2012] WASC 479. In Sheiner v Roberts [2009] WASC 281, the appellant was resentenced on appeal to 8 months' imprisonment in respect of five counts of driving without authority in circumstances where she had 10 prior convictions. In that case, McKechnie J set out a schedule of sentences imposed in other cases. I have had regard to that schedule and it is apparent that the sentence of 8 months imposed here was consistent with sentences imposed in comparable cases.

35 As to the seriousness of the driving without authority offence, the appellant admitted that at the time he drove the motorcycle he knew that he was disqualified and that the vehicle itself was unlicensed. He was in fact under a disqualification that extended to 2022. The reason that he gave for driving afforded him no mitigation. This was not a case where the driving was momentary, due to an oversight or in circumstances where there was some perceived need. The appellant admitted that the reason that he drove was to deliver drugs to customers. This reveals contempt for the orders of the court disqualifying him from driving. This is a reflection of the appellant's established propensity to drive notwithstanding that he is disqualified from doing so. Sentences of imprisonment imposed on the appellant in the past, both suspended and immediate have not achieved the desired objective of deterring him from this type of behaviour.

36 The appellant has not established that the individual sentences imposed were not open in the proper exercise of sentencing discretion. The sentences imposed for the cannabis offences could be viewed as being severe. But I am unable to accept that they are manifestly excessive. In any event, I note that the sentence for the offence of driving without authority was made concurrent and this substantially reduces any harshness in the sentences for the drug offences. I will refer to this consideration in the next section of these reasons.

37 The first limb of the totality principle is that the total effective sentence must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246. The appellant alleges that the aggregate sentence of 15 months' imprisonment did not bear a proper relationship to the overall criminality of the appellant's conduct.

38 The sentence of 15 months' imprisonment was achieved by making the sentences for the two drug offences cumulative and all of the other sentences of imprisonment concurrent. The two drug offences occurred a month apart and were unrelated. Cumulative sentences were clearly appropriate in these circumstances, particularly given that the second offence was committed whilst on bail for the first. The sentence for driving without authority could also have justifiably attracted a cumulative sentence. As I have noted above, the appellant had a long record for driving whilst disqualified and a sentence of imprisonment to be served was entirely appropriate. It would appear that the decision to make this sentence concurrent, and that for possession of the stolen or unlawfully obtained property (the credit card), were based on totality considerations.

39 Any consideration of the 15 month total effective sentence imposed on the appellant needs to take into account the totality of his conduct, that is not only the two drug offences, but also the offence of driving whilst disqualified and the offence of being in possession of stolen or unlawfully obtained property. As I have noted above, any possible harshness in the sentences imposed for the drug offences was ameliorated by making the other sentences concurrent. I am unable to accept that a total effective sentence of 15 months was disproportionate to the total offending in this case.

40 The magistrate expressly considered the question of a suspended sentence. She was asked to do so on the basis that the appellant had addressed his drug problem and now had supports within the community. However her Honour noted that the appellant had been given the opportunity of suspended imprisonment in the past and that it had not acted as a deterrent. She said that having regard to the serious nature of the offending and its repetitive nature she did not regard it as appropriate that the sentences of imprisonment be suspended.

41 Sentences must be commensurate with the seriousness of the offence: s 6(1) Sentencing Act 1995 (WA). The seriousness of the offence must be determined by taking into account the factors in s 6(2). Section 6(4) requires a court not to impose a sentence of imprisonment of any type 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. Section 39(2) of the Act sets out the various sentencing options. Section 39(3) provides that a court must not use a sentencing option in s 39(2) unless it is inappropriate to use any less serious option. Further, a term of immediate imprisonment cannot be imposed unless the sentencer is satisfied that suspended imprisonment is inappropriate: Cartwright v The State of Western Australia [2010] WASCA 4 [8].

42 In determining whether a suspended imprisonment order can be imposed, a sentencer must revisit all the circumstances relevant to the decision to impose a term of imprisonment: Dinsdale v The Queen [18], [26], [84], [85]. A sentence should be suspended when all the circumstances make it appropriate to do so: The State of Western Australia v McCarthy [2014] WASCA 210 [56].

43 An appellate court must avoid the risk of too readily concluding that there was an error on the basis of its own assessment of the circumstances. Accordingly, the appropriate question is not whether the appellate court considers on its own assessment of the circumstances that it was open to impose a suspended sentence but whether it was reasonably open to the magistrate to take a view of the facts and circumstances that would result in a conclusion that a suspended sentence was not appropriate: Plant v Harrington [2010] WASC 364 [36].

44 There may be cases in which an appellate court concludes that a failure to suspend was an error, on the basis that the sentence would otherwise be manifestly excessive. However such a conclusion can only be drawn from a consideration of all the available facts in the case and does not flow, or does not flow alone, from any failure by the magistrate to mention particular relevant factors in his or her reasons: Howlett v Hesp [2012] WASC 351 [34].

45 The appellant submits that there were factors pointing in favour of suspension in this case. They were that the cannabis offences were at the lower end of the scale for offences of that type owing to the small quantities involved, that the appellant was aged 25 years old, that he had been on remand for almost two months, that he had employment and stable accommodation and was no longer the owner of a vehicle. These were relevant factors, but there were countervailing considerations.

46 As I have noted above, the small quantity of cannabis did not accurately reflect the seriousness of the offending. The appellant had a significant record, in particular for driving whilst disqualified. The fact that he no longer owned a vehicle did not provide any reliable indication that he would not reoffend. The suggestion that he had changed his ways and had employment and supports in the community had to be weighed against his history of offending, his long history of substance abuse and his poor past performance under supervision in the community. As was noted in the presentence reports, the appellant would benefit from rehabilitation, however he was yet to prove his commitment to engaging in such a process. He had told the presentence report author that he would not consider entering a residential rehabilitation programme, commenting that he intended to focus on gaining employment. The two were not mutually exclusive.

47 It is not sufficient on an appeal of this nature to show that a suspended sentence may, on one view, have been a possible option. What is necessary for this ground to succeed is for the appellant to show that it was not open to the magistrate in the proper exercise of her discretion to exclude a suspended sentence. That hurdle has not been achieved. There were ample grounds in the information before the magistrate for her to conclude that a suspended sentence was not appropriate in the circumstances of this case.

48 For the reasons I have given, none of the grounds of appeal has any reasonable prospect of success. In those circumstances leave to appeal must be refused.