Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Breach of a conditional suspended imprisonment order - Possession of a prohibited drug with intent to sell or supply - Whether sentencing judge erred in determining that it was not unjust to order the appellant serve the suspended period - Whether a miscarriage of justice occurred in the sentencing of the appellant

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(2)

Sentencing Act 1995 (WA), s 84F, s 84L, s 84J, s 84K

Dragon v The State of Western Australia [2008] WASCA 252

Drleski v The State of Western Australia [2015] WASCA 144

Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364

Ryan v The State of Western Australia [2018] WASCA 121

Salkilld v The State of Western Australia [2010] WASCA 22

1. On 13 August 2018, we made these orders:
   1. The application for an extension of time to appeal is dismissed.
   2. Leave to appeal is refused.
   3. The appeal is dismissed.
2. We said that we would publish our reasons at a later date. What follows are those reasons.

1. On 30 March 2015, police officers stopped a motor vehicle in which the appellant was travelling as a passenger. A search of the vehicle revealed two clipseal bags containing methylamphetamine and a set of digital scales hidden under the protective rubber lining of the vehicle's bonnet. A later analysis revealed that the methylamphetamine weighed 15.14 g.[1]
2. On 28 April 2016, the appellant was convicted on her plea of guilty of one count of possession of 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 sentencing judge, O'Neal DCJ, accepted that the drugs were owned by the appellant's then boyfriend and her possession of them was for the purpose of using some of them and then returning the drugs to her boyfriend.[2] His Honour described the appellant as having a very low degree of culpability. He sentenced her to 10 months' imprisonment suspended for 14 months on conditions that she be supervised and undertake programs (the Order).[3]
3. During the period of suspension, the appellant breached the Order in two ways.[4] First, by failing to comply with one of its requirements, namely to report to a community corrections officer at least once in every 28 days during the suspension period. Second, by offending.[5]
4. On 8 June 2018, the appellant appeared before Gething DCJ as a consequence of these breaches. His Honour ordered that the appellant serve the term of 10 months' imprisonment in full.[6] The term was backdated to commence on 3 June 2018 and a parole eligibility order was made.[7]
5. On 4 July 2018, the appellant filed her notice of appeal against sentence. The appeal notice was filed five days late. Accordingly, the appellant required an extension of time.
6. The appellant brought an application for bail pending appeal. On 18 July 2018, that application was dismissed by Buss P.[8] His Honour ordered that the appellant's application for an extension of time and for leave to appeal against sentence be heard on 13 August 2018.
7. On 8 August 2018, the appellant filed her appellant's case. She sought leave to appeal on two grounds. Ground 1 alleged that Gething DCJ erred in determining that it was not unjust to order that the appellant serve the period of imprisonment previously suspended. Ground 2 alleged that there was a miscarriage of justice in that she claimed information material to her sentencing was not provided to Gething DCJ.

1. Gething DCJ was provided with a statement of facts with respect to the appellant's failure to contact a community corrections officer at least once in any period of 28 days during the period of suspension.[9] The contents of the statement were not challenged by the appellant's counsel. Among the matters referred to in the statement were:

(a) On 12 May 2016, the appellant confided that, since the birth of her son on 19 April 2016, she had gone blind and had been diagnosed with optical neuritis, but had been informed that there was an 80% chance that her eyesight would return.

(b) The appellant was granted authorised absences from reporting to her community corrections officer on 9 May 2016 and 26 May 2016 due to her medical condition.

(c) On 2 June 2016, the appellant met with her community corrections officer and informed that officer that her eyesight 'was slightly improving'.

(d) In order to accommodate a deterioration in her eyesight, the appellant was visited by her community corrections officer at home on 20 June 2016. On this occasion, the appellant advised that her eyesight was improving. The appellant was advised to next report on 27 June 2016.

(e) Between 28 June 2016 and 7 July 2016, the appellant failed to contact her community corrections officer.

1. Gething DCJ was informed that the appellant did not re-establish contact with the Department of Corrective Services until 28 November 2016. Thereafter, her engagement was sporadic and she did not engage meaningfully in any supervision or any counselling or programmatic intervention during the period of suspension.[10]
2. On 23 December 2016, the appellant committed the offence which breached the Order. On that day, she was found by police in possession of a small clipseal bag containing approximately 0.01 g of methylamphetamine. She was charged with possession of a prohibited drug, namely methylamphetamine, contrary to s 6(2) of the Misuse of Drugs Act. This is an offence for which the statutory penalty includes imprisonment. She was convicted of this offence in the Perth Magistrates Court on 10 May 2017 and fined $300.[11]
3. Gething DCJ was provided with three pre-sentence reports in relation to the appellant dated 9 June 2017, 15 August 2017 and 2 November 2017, respectively. The appellant failed to attend scheduled interviews for the preparation of the first two reports. Nor did she attend a scheduled interview for the preparation of a psychological report. The appellant did attend an interview for the preparation of the pre-sentence report dated 2 November 2017.
4. In this report, it was noted that the appellant said that the previous few months had been stressful for her as she did not have accommodation, her son had been removed from her care by the Department for Child Protection and Family Support, and she had ongoing health issues. The report also made reference to the difficulties she had with her former partner, including with domestic violence.
5. Under the heading 'Current offence circumstances', the author of the pre-sentence report dated 2 November 2017 observed:[12]

Apparently ongoing life stressors including health and an inability to cope contributed to her avoidance in complying with the Order conditions, resulting in breach which is presently before the Court. At interview with a previous officer, she admitted she ing to the letter, the Department was hopeful that reunification between the appellant and her now 2-year-old son could occur. The appellant had regular unsupervised contact with her son and was said to be making very good progress towards that end. The author of the letter expressed the view that 'it would be detrimental to our planning for her [the appellant] to be incarcerated'.* In his sentencing reasons, Gething DCJ referred to all of the pre-sentence reports and the letter from the Department for Child Protection and Family Support. In deciding to order that the appellant serve the term of imprisonment that had previously been suspended he said:[13]

Now, in terms of the report [the appellant's counsel] didn't draw my attention to any aspects of the reports which conflicted with your instructions to her. Now, your engagement with the Community Corrections officers during the period of the order was sporadic. You do not appear to have engaged in any meaningful supervision or any meaningful counselling over the course of the order and the materials before me are to the effect that at least until September 2017 you continued to use methylamphetamine.

Now, since your sentencing you've also continued to have issues with your health, in particular with your eyesight and I accept that you've got some ongoing loss of eyesight in that regard. You've also been diagnosed with depression and are being medicated for that.

Now, shortly before you were sentenced on the last occasion you gave birth to a son and your infant son is now living with his paternal grandmother and the Department for Child Protection and Family Support is involved. You're in a relationship which you described to the author of the November pre-sentence report as being positive.

Now, I have also been provided with a letter from the Department for Child Protection and Family Support from the senior child protection worker responsible for your son's care and that's of 19 March. The author tells me - gives me some background; tells me that you've completed weekly random supervised urinalysis since 2017, was clean, and you've also been engaging with a caseworker Partners in Recovery, who's been assisting you implementing and maintaining a relapse plan which includes counselling.

The author tells me that you have regular unsupervised contact with your son and that 'It would be detrimental to our planning for you to be incarcerated' and I understand that there's a hearing coming up in relation to the protection application in July.

As I said at the outset, the law provides that I'm to order you to serve the term of imprisonment initially imposed unless it would be unjust to do so in view of all of the circumstances arisen or become known after the order was imposed.

Now, in imposing the order or the initial term of imprisonment the judge who sentenced you made it clear that for drug-related offences any offence other than an immediate term of imprisonment is somewhat exceptional and the facts need to be somewhat exceptional and the judge placed your facts in those circumstances.

Now, in that context and given that you've not demonstrated any real commitment to take advantage of the support and counselling offered to you by Community Corrections and what I consider would be unjust to require you to serve the term of imprisonment of 10 months that was initially imposed.

I've taken into account the engagement that you've had with the Department of Communities and, as I've indicated to [the appellant's counsel], that tells me that had you chosen to do so, you could have engaged with Community Corrections in relation to your order. However, you chose not to do so.

So I'm going to impose a term of imprisonment of 10 months.

The statutory framework

1. Section 84F of the Sentencing Act 1995 (WA) sets out how a person who is subject to a conditionally suspended imprisonment order must be dealt with if that person reoffends during the period of suspension. The section relevantly reads:

84F**. How re-offender to be dealt with**

(1) If satisfied that a person has been convicted (in this State or elsewhere) of an offence the statutory penalty for which is or includes imprisonment and that the offence was committed during the suspension period of CSI, a court that must deal with the person under this section must deal with the person by one of the following methods -

(a) unless an order under this paragraph, paragraph (b) or section 84L(1)(a) or (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;

(b) unless an order under this paragraph, paragraph (a) or section 84L(1)(a) or (b) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended (even if the period ordered to be served is 6 months or less);

(c) unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;

(d) it may fine the person not more than $6 000 and make no order in respect of the CSI.

(2) The powers in subsection (1) may be exercised as often as is necessary.

(3) A court must make an order under subsection (1)(a) unless it decides that it would be unjust to do so in view of all the circumstances that have arisen, or have become known, since the CSI was imposed.

1. By s 84J read with s 84K, where a person who is subject to a conditionally suspended term of imprisonment breaches a requirement of a conditionally suspended imprisonment order, that person commits an offence and is liable to be dealt with according to s 84L, which reads:

84L**. Additional powers to deal with s. 84J offender**

(1) A court that is required by section 84K or 84R to deal with a person under this section must deal with the person by one of the following methods -

(a) unless an order under this paragraph, paragraph (b) or section 84F(1)(a) or (b) has already been made, it may order the person to serve the term or terms of imprisonment that were suspended;

(b) unless an order under this paragraph, paragraph (a) or section 84F(1)(a) or (b) has already been made, it may order the person to serve part of the term or terms of imprisonment that were suspended (even if the period ordered to be served is 6 months or less);

(c) unless the suspension period has ended, it may substitute another suspension period of not more than 24 months for the suspension period originally set; the new suspension period to begin on the day it is substituted;

(d) it may make no order in respect of the CSI.

(2) The powers in subsection (1) may be exercised as often as is necessary.

(3) If under subsection (1)(a) or (b) a court orders a person to serve a term, or part of a term, of imprisonment that was suspended -

(a) section 88 applies in respect of the term to be served; and

(b) the court may make a parole eligibility order,

as if the term to be served were a term of imprisonment being imposed by the court.

(4) If a person is dealt with under subsection (1)(d), then, unless the suspension period has ended, the sentence of CSI remains in effect and the suspension period continues to elapse.

(5) In dealing with a person under this section a court must take into account the extent to which the person has complied with the CSI and how long the person has been subject to the CSI.

Disposition of the grounds of appeal

1. We will deal with ground 2 first.
2. Ground 2 alleges, in effect, that information concerning the abovementioned matters at [10] and [14] - [16] was not provided to the learned sentencing judge.
3. The assertion in ground 2 is simply incorrect. There was information before his Honour about all of the matters the appellant claims should have given rise to the imposition of a term of imprisonment less than the suspended term. That information was contained in the pre-sentence reports to which his Honour expressly referred and in the letter from the senior child protection worker, dated 19 May 2018.
4. Ground 2 has no reasonable prospect of success and leave to appeal should be refused in respect of it.
5. As to ground 1, the appellant's written and oral submissions are to the effect that it was unjust for Gething DCJ to order that the appellant serve all of the term of imprisonment that had previously been suspended. It was submitted that his Honour should have made an order requiring the appellant to serve part of the term of imprisonment that was suspended, having regard to:

(a) her medical condition;

(b) the severity of the abuse which she had suffered at the hands of her partner during the suspension period;

(c) the difficulties she faced and had to cope with as a single mother;

(d) the alleged attempts she had made to comply with domestic violence counselling, being the only program she had been asked to undertake by her community corrections officer;

(e) the progress that she had made towards being reunified with her 2-year-old son; and

(f) her efforts to rehabilitate herself from her illicit drug use.

1. There is no dispute that s 84F of the Sentencing Act applied to the appellant. As we have said, the statutory penalty for possession of a prohibited drug includes a term of imprisonment.

2. A court dealing with someone who breaches a conditionally suspended term of imprisonment by reoffending is limited to the options provided for in s 84F(1). In the present case, the option in s 84F(1)(c) was unavailable because the suspension period had ended. By reason of s 84F(3), a sentencer must order that the offender serve the term or terms of imprisonment that were suspended unless, in view of all the circumstances that have arisen or become known since the order was imposed, it would be unjust to do so.

3. Thus, and again returning to this case, the learned sentencing judge was required to order that the appellant serve the term of 10 months' imprisonment that had previously been suspended unless he concluded, in the light of all the circumstances that had arisen or become known since the making of the order by O'Neal DCJ, that it would be unjust to do so. If his Honour decided that it was unjust, the options in s 84F(1)(b) and (d) were open to him.

4. Undoubtedly, a decision as to whether it would be unjust to make an order under s 84F(1)(a) involves a value judgment. It is a matter about which reasonable minds may differ. See Dragon v The State of Western Australia;[14] Salkilld v The State of Western Australia;[15] Drleski v The State of Western Australia;[16] Hall v The Queen.[17] If a sentencing judge makes a material express or implied error, for example, if the judge fails to take into account a relevant consideration, or takes into account an irrelevant consideration, or if the opinion that is formed is unreasonable or plainly unjust, this court's power to intervene is enlivened.

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

FN

Associate

15 JANUARY 2019

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[1] ts 67 - 68.

[2] ts 67 - 68.

[3] ts 25, 67 - 68.

[4] ts 68.

[5] ts 68.

[6] ts 70.

[7] ts 70.

[8] See Ryan v The State of Western Australia [2018] WASCA 121.

[9] ts 60.

[10] ts 66.

[11] ts 68.

[12] Pre-sentence report, 2 November 2017, page 2.

[13] ts 69 - 70.

[14] Dragon v The State of Western Australia [2008] WASCA 252 [46].

[15] Salkilld v The State of Western Australia [2010] WASCA 22.

[16] Drleski v The State of Western Australia [2015] WASCA 144.

[17] Hall v The Queen [1999] WASCA 225; (1999) 21 WAR 364.