OAI -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 110 (25 August 2022)

Personal circumstances, plea of guilty and cooperation

1. The appellant is not a youthful offender. He had past convictions for drug dealing offences, for which sentences other than immediate terms of imprisonment were imposed. The appellant was an entrenched drug user who had taken steps to be drug free. The appellant was in a committed relationship and was employed at the date of the sentencing hearing. The sentencing judge accepted that the appellant had abstained from using methylamphetamine and had ceased contact with former associates. The sentencing judge concluded that the appellant had good prospects of rehabilitation.
2. The sentencing judge granted a discount of 25% under s 9AA of the Sentencing Act 1995 (WA) for a plea of guilty at the first reasonable opportunity.
3. Since being arrested, the appellant cooperated with police in a manner described in a confidential letter to the sentencing court. The sentencing judge gave the appellant a substantial further discount for this cooperation, which his Honour accepted was significant and involved a high level of risk for the appellant.

1. The legal principles relevant to a sentencing appeal in which the offender contends that a term of immediate imprisonment for a drug offence ought to have been suspended were outlined in HNA v The State of Western Australia,[1] as follows:

Section 6 of the Sentencing Act 1995 (WA) requires that a sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of the appellant's offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors. The appellant bears the onus of establishing mitigating factors on the balance of probabilities.

Section 6(4) of the Sentencing Act provides that a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only a sentence of imprisonment can be justified or the protection of the community requires it.

The effect of s 39(3) of the Sentencing Act is that a court must not impose a term of immediate imprisonment unless satisfied that suspended and conditionally suspended imprisonment are not appropriate sentencing options. In deciding whether it is satisfied of that matter, the court must have regard to the sentencing principles in pt 2 div 1 (including s 6) of the Act.

Section 39(3) of the Sentencing Act imposes a constraint on the court's sentencing discretion. The constraint is not discretionary. A court 'must not' use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before that option. Section 39(3) prohibits a court from imposing a sentence of immediate imprisonment unless the required state of satisfaction exists.

The condition for the release of the constraint on the court's sentencing discretion which s 39(3) of the Sentencing Act imposes is defined by reference to the existence of a state of satisfaction in the sentencing court. The subject matter about which the sentencing court must be satisfied is the appropriateness of different types of sentence. A sentencing judge must be positively satisfied that suspended and conditionally suspended imprisonment are not appropriate sentencing options before imposing a sentence of immediate imprisonment.

In considering whether suspended or conditionally suspended imprisonment is not appropriate, the provisions relating to those sentencing options must be considered. Only terms of 5 years or less may be suspended or conditionally suspended. Suspended or conditionally 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. Further, suspended or conditionally suspended imprisonment is not to be imposed if the offence was committed when the offender was subject to an early release order, or the offender is serving or is yet to serve a term of imprisonment that is not suspended. These specific requirements did not preclude the imposition of suspended or conditionally suspended imprisonment in the appellant's case.

Otherwise, considering what sentencing options are 'not appropriate' involves an evaluative judgment which is broad but not at large. The determination of what is 'not appropriate' must be reached by applying the relevant sentencing principles and considerations to all the circumstances of the offence and the offender.

Where a sentence is said to be manifestly excessive as to type, the question for this court is whether it was reasonably open to the sentencing court, upon application of the relevant sentencing principles and considerations and in all the circumstances, to be positively satisfied that earlier listed sentencing options were not appropriate.

As was emphasised in Dinsdale v The Queen ([2000] HCA 40; [2000] HCA 54; (2000) 202 CLR 321), in an appeal alleging the imposition of the wrong type of sentence, it remains necessary to identify an error of principle by the sentencing judge before this court has authority to interfere with the sentence. Where error is not express and manifest excess or inadequacy is alleged, the court may infer error where the sentence imposed is unreasonable or plainly unjust. (footnotes omitted)

1. Whether suspension is appropriate involves a discretionary value judgment, which by its nature gives some latitude to the decision‑maker. In borderline cases, different types of sentences may each be reasonably open.[2] In such cases, the decision to decline to suspend a term of imprisonment would not be unreasonable or plainly unjust and would reveal no implied error. It is for the appellant to satisfy this court that the sentencing judge's judgment - that suspension was not appropriate - was a conclusion that was not reasonably open.[3]
2. The considerations relevant to a question of manifest excess are well established. In determining whether a sentence is manifestly excessive as to type or length, regard must be had to the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to the offence, where the offender's criminal conduct is placed on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
3. Other well-established general principles were outlined by Mazza and Mitchell JJA in The State of Western Australia v Egeland,[4] as follows:

This court has, time and again, made it plain that, generally, as a matter of fact, 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. Accordingly, the imposition of a sentence other than immediate imprisonment for an offence of the kind under consideration in this appeal is, as a matter of fact, exceptional.

However, even if a term of immediate imprisonment is generally the appropriate penalty, a sentencing judge is not relieved of their obligation to determine the appropriate penalty in the particular case.

The major sentencing considerations for offences of dealing or trafficking in dangerous drugs such as MDMA 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 personal 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. (footnotes omitted)

1. The maximum term of imprisonment for the present offence is 25 years' imprisonment.
2. The appellant's offending was a moderately serious kind of offence under s 6(1)(a) of the Misuse of Drugs Act. The quantity of methylamphetamine in the appellant's possession was just below the 28 g threshold, at which point the maximum penalty becomes one of life imprisonment. The appellant's involvement in the offending was not fleeting. The appellant provided a service of delivering and receiving payment for a prohibited drug, which was critical to the distribution of the drug into the community. The appellant knowingly acted for a drug dealer in delivering the methylamphetamine.
3. There were a number of mitigating features of the appellant's offending, including the appellant's plea of guilty at the first reasonable opportunity, steps towards and prospects of rehabilitation and his significant cooperation with authorities. However, his past history of drug offences showed that the appellant was not a person of good character and elevated the significance of personal deterrence as a sentencing consideration. The mitigating weight to be given to matters personal to the appellant is reduced by the importance of general deterrence as a sentencing consideration.
4. In support of the appellant's claim that the sentence imposed in this case was manifestly excessive as to type, counsel refers to this court's decision in ENW. In that case, a sentence of 12 months' immediate imprisonment, after a plea of guilty, for possession of 21.44 g of methylamphetamine with intent to sell or supply it to another was found to be manifestly excessive as to type. However, the offending in ENW was much less serious than that of the appellant. The offender in ENW had fleeting joint possession with her partner of a bag of methylamphetamine, without ever having physical possession of the drugs. Her unfulfilled intention, for less than one minute, was to take control of the drugs and hide them from the police. She was unaware of the existence of the bag of drugs prior to police arriving at her home.[5] Although the offender in ENW received only a 10% discount under s 9AA of the Sentencing Act, there were very substantial mitigatory factors in that case.[6]
5. The decision in ENW does not establish that the decision to impose a sentence of immediate imprisonment in the present case was unreasonable or plainly unjust. In our view, the circumstances of the appellant's offending were so serious as to make suspended or conditionally suspended imprisonment inappropriate sentencing options, even taking the substantial mitigating factors into account.
6. Nor are we satisfied that the length of the term of imprisonment imposed on the appellant was manifestly excessive. But for the appellant's cooperation with authorities, a significantly longer term of immediate imprisonment would be expected for the current offence. We agree with the view expressed by the sentencing judge to the effect that the mitigating effect of the appellant's cooperation is appropriately reflected in a shorter sentence than would otherwise have been appropriate.
7. The authorities on which counsel for the appellant relies do not establish that the sentence imposed on the appellant was manifestly excessive as to length. Some of those cases involved significantly lesser quantities of methylamphetamine than that possessed by the appellant in the present case.[7] In a number of those cases, leave to appeal was refused in an appeal against sentence.[8] As Quinlan CJ noted in Pedrochi v Brown:[9]

Where an appeal on the ground of manifest excess is refused leave, on the basis that it has no reasonable prospect of success, it may have very little utility as a comparable sentence. Where a sentence is, in effect, not even arguably excessive, it can in no way provide a marker as to the upper limits of the proper exercise of discretion.

1. The sentences imposed in the other cases on which the appellant relied, Greenfield v The State of Western Australia and Donaldson v The State of Western Australia,[10] are broadly consistent with the sentence imposed on the appellant, having regard to the comparable and distinguishing features of those cases.
2. Having regard to:
   1. the maximum penalty of 25 years' imprisonment;
   2. the seriousness of the appellant's offending; and
   3. all relevant facts and circumstances and all relevant sentencing factors, including the appellant's personal circumstances and the other mitigating circumstances,

we are satisfied that the sentence of 2 years' immediate imprisonment was not unreasonable or plainly unjust. The sole ground of appeal does not have a reasonable prospect of success.

1. For the above reasons, we would make the following orders in the appeal:
   1. Leave to appeal on the sole ground of appeal is refused.
   2. The appeal is dismissed.

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

[1] HNA v The State of Western Australia [2016] WASCA 165 [23] ‑ [31]. To similar effect see ENW v The State of Western Australia [2021] WASCA 213 [65] - [67].

[3] Fogg v The State of Western Australia [2011] WASCA 11 [8] ‑ [10]; Cross v The State of Western Australia [2018] WASCA 86 [36]; Dinh v The State of Western Australia [2019] WASCA 167 [28].

[4] The State of Western Australia v Egeland [2018] WASCA 228 [140] ‑ [142].

[7] Turner v The State of Western Australia [2021] WASCA 132; Donaldson v The State of Western Australia [2018] WASCA 143.

[8] Towler v The State of Western Australia [2018] WASCA 141; MRSA v The State of Western Australia [2018] WASCA 217; McCooke v The State of Western Australia [2020] WASCA 155; O'Malley v The State of Western Australia [2021] WASCA 8; Pearman v The State of Western Australia [2021] WASCA 106.

[9] Pedrochi v Brown [2021] WASC 81 [43].

[10] Greenfield v The State of Western Australia [2019] WASCA 29; Donaldson v The State of Western Australia [2020] WASCA 193.