Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Appellant convicted after trial of two counts - Count 1 involved the possession of 12.81 g of methylamphetamine of a high degree of purity with intent to sell or supply - Count 2 involved the possession of $4,800 cash that was reasonably suspected to be unlawfully obtained - Appellant sentenced to 2 years 8 months' immediate imprisonment on count 1 and 4 months' immediate imprisonment on count 2 - Total effective sentence of 3 years' immediate imprisonment - Whether sentence for count 1 manifestly excessive - Whether total effective sentence infringed the first limb of the totality principle

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a)

Sentencing Act 1995 (WA), s 4, s 6, s 39, s 76, s 81

Attenborough v The State of Western Australia [2005] WASCA 132

Bailey v The State of Western Australia [2016] WASCA 10

Cartwright v The State of Western Australia [2010] WASCA 4

Chu v The State of Western Australia [2012] WASCA 135

Coleski v The State of Western Australia [2008] WASCA 260

Crichton v The State of Western Australia [No 2] [2014] WASCA 37

Donaldson v The State of Western Australia [2018] WASCA 143

Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246

Fenton v The State of Western Australia [2015] WASCA 255

Fogg v The State of Western Australia [2011] WASCA 11

Gaskell v The State of Western Australia [2018] WASCA 8

Giglia v The State of Western Australia [2010] WASCA 9

Kirkup v The State of Western Australia [2018] WASCA 102

Leckie v The State of Western Australia [2018] WASCA 91

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

Maric v The State of Western Australia [2015] WASCA 190

Mrsa v The State of Western Australia [2018] WASCA 217

Ness v The State of Western Australia [No 2] [2013] WASCA 56

Pepper v The State of Western Australia [2005] WASCA 177; (2005) 30 WAR 447

Potaka v The State of Western Australia [2017] WASCA 98

Roffey v The State of Western Australia [2007] WASCA 246

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

Schlenka v The Queen [2004] WASCA 142

Skipworth v The State of Western Australia [2008] WASCA 64

Stewart v The State of Western Australia [2014] WASCA 195

Swains v The State of Western Australia [2007] WASCA 251

The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198

The State of Western Australia v Egeland [2018] WASCA 228

The State of Western Australia v Johnson [2010] WASCA 187

The State of Western Australia v Thompson [2014] WASCA 108

Towler v The State of Western Australia [2018] WASCA 141

Tran v The State of Western Australia [2013]WASCA 77

Truscott v The State of Western Australia [2016] WASCA 58

Vogel v The Queen [2002] WASCA 261

1. The appellant has applied for leave to appeal against sentence.
2. The appellant was convicted, after a trial in the District Court before Goetze DCJ and a jury, of two counts in an indictment.
3. Count 1 alleged that on 13 April 2016, at Balga, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
4. Count 2 alleged that on 13 April 2016, at Balga, the appellant was in possession of a thing capable of being stolen, namely $4,800 in cash, that was reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) (the Code).
5. The trial judge sentenced the appellant to 2 years 8 months' immediate imprisonment on count 1 and 4 months' immediate imprisonment on count 2. The sentences were ordered to be served cumulatively. The total effective sentence was therefore 3 years' immediate imprisonment. A parole eligibility order was made.
6. The existing ground of appeal, as explained by counsel for the appellant at the hearing of the application, alleges that the sentence for count 1 was manifestly excessive as to the type of sentence imposed (in particular, his Honour should have made a suspended imprisonment order), alternatively as to the length of the term of imprisonment.
7. At the hearing of the application, counsel for the appellant said that the appellant also wished to contend that the total effective sentence infringed the first limb of the totality principle.
8. Neither the existing ground of appeal nor the proposed contention in relation to totality has a reasonable prospect of success. Leave to appeal should be refused. The appeal must be dismissed. Our reasons are as follows.

1. On 13 April 2016, the appellant was in a motor vehicle that was stopped by the side of the road. A police vehicle approached and parked behind the appellant's vehicle. The appellant's vehicle contained three people: the appellant, who was in the driver's seat, and two passengers.
2. Police officers saw a smoking implement in the appellant's vehicle. They suspected that his vehicle may contain prohibited drugs. In response to a question from the police officers, the appellant produced $4,800 cash from his pockets. The police officers searched the appellant's vehicle and located a number of items, namely a package sealed with black electrical tape, a clipseal bag, two mobile telephones, digital scales and empty plastic bags. The package and the clipseal bag contained, in total, 12.81 g of methylamphetamine. Of that quantity, 3.13 g had a purity of 81%, 3.13 g had a purity of 79% and 6.55 g had a purity of 73%.
3. The trial judge found that the appellant was a low-level drug dealer who was involved in 'street dealing'. He sold drugs to finance his drug addiction.
4. The appellant was aged 49 years at the time of the offending and was aged 52 when sentenced.
5. In 2013 the appellant was convicted in Victoria on two charges of cultivating cannabis. He was sentenced to 3 years' imprisonment. His Honour said the prior conviction showed the appellant's past association with prohibited drugs and that he was not of prior good character.
6. The trial judge commented that since the appellant had committed the offences for which he was to be sentenced he had ceased using prohibited drugs. His Honour noted that the appellant would need to be medicated in custody for high blood pressure. The appellant also had some other medical conditions and he may need treatment for post-traumatic stress disorder. His Honour was satisfied that adequate treatment could be provided in custody.
7. His Honour considered whether the terms of imprisonment he had imposed on the appellant were able to be suspended. His Honour concluded that the offending was too serious to enable suspension.

The existing ground of appeal: counsel for the appellant's submissions

1. Counsel for the appellant submitted in effect that the sentence for count 1 was unreasonable or plainly unjust. The sentence should have been suspended, alternatively a lesser term of imprisonment should have been imposed, having regard to the following:

(a) the absence of aggravating features such as proof of future orders for drugs, possession of a substantial quantity of cash and possession of firearms;

(b) the 'modest reward' which the appellant anticipated receiving from the sale of the drugs in question;

(c) the lack of sophistication in the appellant's drug dealing business;

(d) the appellant's medical conditions, including his post-traumatic stress disorder;

(e) the appellant's efforts to overcome his drug addiction; and

(f) the sentencing pattern in prior comparable cases.

1. A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
2. When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
3. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
4. The discretion conferred on sentencing judges is, of course, of fundamental importance. This court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[1]
5. At the material time, the maximum penalty for the offence of possessing methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, was 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the MD Act.
6. The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
7. By s 6(4) of the Sentencing Act 1995 (WA):

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

(b) the protection of the community requires it.

1. Section 76 of the Sentencing Act provides, relevantly:

(1) A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the term or terms be suspended for a period set by the court; but not more than 24 months.

(2) 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.

1. Similarly, s 81(1) of the Sentencing Act provides that a prescribed court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months, subject to certain conditions. Section 81(2) provides that conditional 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.
2. Section 4(4) of the Sentencing Act provides that, in the Act, a reference to the suspension of a term or terms of imprisonment is a reference to a suspension of the whole of the term or terms or part of the term or terms.
3. The limit of 5 years specified in s 76(1) and s 81(1) reflects Parliament's view that if an offender is sentenced to a term of imprisonment, or to an aggregate of terms of imprisonment, in excess of the specified limit, the offending will be of an order of seriousness which precludes suspension or conditional suspension.
4. The limit of 5 years also reflects Parliament's view that a term of imprisonment, or an aggregate of terms of imprisonment, may appropriately be suspended even though the offender has committed an offence or offences that are of sufficient seriousness as to warrant a sentence or total sentence of 5 years' imprisonment.
5. A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditional suspended imprisonment. See s 39(2) and s 39(3).
6. A sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia;[2] Fogg v The State of Western Australia.[3] The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v The Queen.[4] The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86].
7. The principles applicable to suspended sentences for serious drug offences were explained in Cartwright v The State of Western Australia,[5] as follows:

Section 39(2) of the Sentencing Act 1995 (WA) (the Act) sets out the various sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Act a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term; the power to suspend is not confined by reference wholly, mainly or specially to the effect that suspension would have on the rehabilitation of a particular offender: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84], [85].

However, as noted in Collins v The State of Western Australia [2007] WASCA 108 [17], the sentencing discretion is not to be exercised in a vacuum. A sentencing judge must impose a type of sentence that falls within a sound discretionary range. The decisions of this court and its predecessor provide guidance to sentencing judges with the aim of achieving consistency in sentencing. This court has made it plain that generally, a term of immediate imprisonment is the only appropriate sentencing option for serious drug offences. The incentives, financial and otherwise, to participate in the illicit drug distribution network must be counterbalanced by a clear and certain understanding that such involvement will ordinarily result in a penalty of immediate imprisonment: The State of Western Australia v Saxild [2008] WASCA 156 [12]. Thus, the imposition of a sentence other than immediate imprisonment for such an offence is, as a matter of fact, exceptional: The State of Western Australia v Andela [2006] WASCA 77 [17]; Saxild [13].

However, even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge is not relieved of his or her obligation to determine the appropriate penalty in the particular case. In such circumstances the question for the sentencing judge is whether having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence: Collins [21].

1. So, ordinarily, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for a serious drug offence. In other words, the imposition of a suspended term of imprisonment is, as a matter of fact, exceptional. See The State of Western Australia v Johnson;[6] Truscott v The State of Western Australia.[7]
2. The fact that an offender deals in small quantities of a prohibited drug at street level does not bring an offender within the exceptional category. See Duong v The State of Western Australia;[8] Ness v The State of Western Australia [No 2];[9] Tran v The State of Western Australia;[10] Truscott.[11]
3. The appellant's offending in relation to count 1 was serious. It involved the possession, with intent to sell or supply, of 12.81 g of methylamphetamine with a high degree of purity. The appellant was a low-level drug dealer as well as a user. Dealers in a prohibited drug who are addicted to the drug are not treated more leniently merely because the motive for their dealing is the need for money to finance their addiction or to reduce drug debts. See Chu v The State of Western Australia.[12] Although the appellant was to be punished only for the offence in question, his status as a drug dealer indicated that count 1 did not involve an isolated transaction.
4. The appellant was aged 49 at the time of the offending. He was not youthful or inexperienced for sentencing purposes.
5. The appellant had a prior criminal record; in particular, a reasonably recent conviction for cultivating cannabis. The appellant's prior criminal record, and any failure of previous sentences to achieve the purpose for which they were imposed, did not aggravate the offending in question. However, his record indicated that the current offence was not an aberration by a person who was otherwise of good character and it underscored the importance of personal deterrence as a sentencing factor.
6. The appellant was, of course, entitled to proceed to trial. However, he did not have the mitigation that a plea of guilty would have brought.
7. The absence of aggravating features (for example, the possession of firearms in connection with drug dealing) is not mitigating. The fact that the appellant anticipated receiving only a 'modest reward' from the sale of the drugs in question, the appellant's medical conditions and his efforts to overcome his drug addiction were appropriately reflected in the sentence which the trial judge imposed.
8. We have had regard to the sentencing dispositions in a range of cases including Vogel v The Queen;[13] Schlenka v The Queen;[14] Samuel v The State of Western Australia;[15] Pepper v The State of Western Australia;[16] Attenborough v The State of Western Australia;[17] Swains v The State of Western Australia;[18] Cartwright; Coleski v The State of Western Australia;[19] Crichton v The State of Western Australia [No 2];[20] The State of Western Australia v Thompson;[21] Stewart v The State of Western Australia;[22] Maric v The State of Western Australia;[23] The State of Western Australia v Baldini;[24] Fenton v The State of Western Australia;[25] Bailey v The State of Western Australia;[26] Truscott; Potaka v The State of Western Australia;[27] Leckie v The State of Western Australia;[28] Kirkup v The State of Western Australia;[29] Towler v The State of Western Australia;[30] Donaldson v The State of Western Australia;[31] and Mrsa v The State of Western Australia.[32] We have also had regard to other cases cited by counsel for the appellant.
9. It is unnecessary to reproduce the facts and circumstances of the prior cases we have considered or the sentencing outcomes. There are some comparable features between some of the prior cases and the present case, but there are also distinguishing features. The sentence imposed on the appellant for count 1 is broadly consistent with the sentencing pattern for offences of the kind he committed, having regard to the comparable and distinguishing features between the prior cases and the appellant's case.
10. The appellant relies, in particular, on The State of Western Australia v Egeland,[33] which is a recent decision of this court concerning sentences for drug dealing offences involving relatively small quantities of drugs. In our view, it provides no support for the appellant's claim of implied error. The offence in Egeland had a number of unusual features that diminished its seriousness[34] and the offender's personal circumstances gave rise to a number of mitigating factors,[35] making that case very different from the present case. Moreover, while the majority in Egeland upheld the conditionally suspended term imposed in that case, they expressly recognised that it was open to have imposed immediate imprisonment.[36] Thus, in Egeland, in which the arguments for a suspended sentence were much stronger than the present case, the imposition of immediate imprisonment would not have revealed implied error.
11. In our opinion, after taking into account:

(c) the sentences imposed in previous cases with at least some features comparable to the appellant's offending;

(d) the place which the appellant's offending occupies on the scale of seriousness of offences of this kind;

(f) the mitigating factors referred to by his Honour; and

the sentence of 2 years 8 months' immediate imprisonment for count 1 was not unreasonable or plainly unjust, either in relation to the type of sentence imposed or in relation to the length of the term of imprisonment.

1. It was reasonably open to the trial judge to be satisfied that it was inappropriate to impose wholly or partly suspended or to impose conditionally suspended imprisonment. His Honour was entitled to be positively satisfied that it was not appropriate wholly or partly to suspend or to conditionally suspend the term of imprisonment.
2. We are satisfied that error by his Honour in the exercise of his discretion should not be inferred from the sentencing outcome.
3. The existing ground of appeal is without merit.

The proposed contention in relation to totality

1. At the material time, the maximum penalty for possessing any thing capable of being stolen that is reasonably suspected to be stolen or otherwise unlawfully obtained, contrary to s 417(1) of the Code, was 7 years' imprisonment.
2. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
3. The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual sentences. See Roffey v The State of Western Australia.[37] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia;[38] Gaskell v The State of Western Australia.[39]
4. In our opinion, it is not reasonably arguable in the present case that the total effective sentence of 3 years' immediate imprisonment infringed the first limb of the totality principle. The offences charged in counts 1 and 2 were separate and distinct. A custodial term of 3 years was necessary in order properly to reflect the serious character of the appellant's offending, viewed as a whole, and to give effect to the sentencing considerations of personal and general deterrence. The total effective sentence bears a proper relationship to the criminality involved in both of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing factors, including the seriousness of the overall offending, the pattern of sentencing in reasonably comparable cases and the matters of mitigation.
5. Error by his Honour in the exercise of his discretion should not be inferred, based on the first limb of the totality principle, from the sentencing outcome. The total effective sentence of 3 years' immediate imprisonment was not unreasonable or plainly unjust.

1. Leave to appeal should be refused. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh,

[2] Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] - [14] (McLure JA).

[3] Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P; Mazza J agreeing).

[4] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18] (Gleeson CJ & Hayne J), [26] (Gaudron & Gummow JJ), [84] (Kirby J).

[5] Cartwright v The State of Western Australia [2010] WASCA 4 [8] - [10] (McLure P; Owen & Wheeler JJA agreeing).

[6] The State of Western Australia v Johnson [2010] WASCA 187 [15] - [25].

[7] Truscott v The State of Western Australia [2016] WASCA 58 [20].

[8] Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246.

[9] Ness v The State of Western Australia [No 2] [2013] WASCA 56.

[10] Tran v The State of Western Australia [2013] WASCA 77.

[12] Chu v The State of Western Australia [2012] WASCA 135 [33] (Mazza JA; Buss JA agreeing).

[13] Vogel v The Queen [2002] WASCA 261.

[14] Schlenka v The Queen [2004] WASCA 142.

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

[16] Pepper v The State of Western Australia [2005] WASCA 177; (2005) 30 WAR 447.

[17] Attenborough v The State of Western Australia [2005] WASCA 132.

[18] Swains v The State of Western Australia [2007] WASCA 251.

[19] Coleski v The State of Western Australia [2008] WASCA 260.

[20] Crichton v The State of Western Australia [No 2] [2014] WASCA 37.

[21] The State of Western Australia v Thompson [2014] WASCA 108.

[22] Stewart v The State of Western Australia [2014] WASCA 195.

[23] Maric v The State of Western Australia [2015] WASCA 190.

[24] The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198.

[25] Fenton v The State of Western Australia [2015] WASCA 255.

[26] Bailey v The State of Western Australia [2016] WASCA 10.

[27] Potaka v The State of Western Australia [2017] WASCA 98.

[28] Leckie v The State of Western Australia [2018] WASCA 91.

[29] Kirkup v The State of Western Australia [2018] WASCA 102.

[30] Towler v The State of Western Australia [2018] WASCA 141.

[31] Donaldson v The State of Western Australia [2018] WASCA 143.

[32] Mrsa v The State of Western Australia [2018] WASCA 217.

[33] The State of Western Australia v Egeland [2018] WASCA 228.

[37] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P and Miller JA agreeing).

[38] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).

[39] Gaskell v The State of Western Australia [2018] WASCA 8 [54] - [59] (Buss P), [151] (Mazza & Beech JJA).