Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Sentencing - One count of possession of methylamphetamine with intent to sell or supply - First offender - Mature man of good character - 6.25 grams of methylamphetamine of 25 per cent purity - Sentence of 2 years immediate imprisonment - Whether term manifestly excessive - Whether sentence should have been suspended

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

Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998

Dinsdale v The Queen [2000] HCA 54; (2000) 175 ALR 315

Leonard v The Queen, unreported; CCA SCt of WA; Library No 990152; 29 March 1999

Miller v The Queen [1999] WASCA 66

Minchinton (1998) 104 A Crim R 502

R v GP (1997) 18 WAR 196

R v Votano [2000] WASCA 144

Reppucci (1994) 74 A Crim R 353

Vogel v The Queen [2002] WASCA 261

Bellissimo (1996) 84 A Crim R 465

Chick [2000] WASCA 231; (2000) 114 A Crim R 417

Darwell (1997) 94 A Crim R 35

Korculanic v The Queen, unreported; CCA SCt of WA; Library No 980437; 16 July 1998

Koushappis v The Queen [2001] WASCA 18

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

Simion v The Queen, unreported; CCA SCt of WA; Library No 970738; 23 December 1997

1 MALCOLM CJ: At the conclusion of the hearing of this application for leave to appeal, the Court unanimously allowed the application. It was then indicated that we would publish our reasons later. I agree with the reasons to be published by Roberts-Smith J.

2 MURRAY J: I have had the advantage of reading in draft the reasons for decision published by Roberts-Smith J. They express very adequately for me the reasons why I joined in the orders made on the hearing of the appeal. I have nothing to add.

3 ROBERTS-SMITH J: On 23 March 2004 following a one day trial before his Honour H H Jackson DCJ and a jury, the applicant was found guilty of one count of possession of methylamphetamine with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 and was sentenced to a term of 2 years immediate imprisonment with an order that he be eligible for parole.

4 The applicant was found in possession of 6.25 grams of powder consisting of 25 per cent methylamphetamine and 19 per cent pseudoephedrine.

5 By notice dated 13 April 2004 the applicant sought leave to appeal against that sentence on the following grounds:

"1. The Learned Judge's sentencing discretion miscarried when he sentenced the prisoner to a sentence of 2 years imprisonment, which was manifestly excessive in all of the circumstances.

Particulars

The Learned sentencing Judge failed to give enough weight to the appellants lack of any significant criminal record and prior good character.

2. The Learned Judge's sentencing discretion miscarried when he sentenced the appellant to 2 years imprisonment which in all the circumstances was excessive for the amount of drug that the appellant was convicted of, namely 6.25 grams of methylamphetamine.

3. The Learned Judge fell into error in not adequately considering the applicability and/or appropriateness of a suspended sentence in all the circumstances."

6 Leave to add ground 3 was granted at the hearing before this Court on 1 July 2004.

7 On the completion of the hearing on that date the Court was unanimously of the opinion that leave to appeal against sentence should be granted and the appeal should be allowed to the extent that in lieu of an immediate sentence of imprisonment the sentence of 2 years imprisonment should be suspended for a period of 2 years. We said then we would publish our reasons later for reaching that conclusion. These are my reasons.

8 The evidence given at trial was not included in the application book, nor did much appear from counsel's plea in mitigation.

9 Counsel for the applicant before his Honour said that he did not want to mention anything "because of family harmony" in respect of the matter because the family had not been informed. He handed up character references, although at the same time expressing the caveat that he realised in respect of this type of case that personal circumstances "do not really take the matter much further". Nor did he consider that a pre-sentence report would reveal anything which was not already apparent.

10 Counsel submitted that the applicant's age and the fact that he has been an excellent family man and worked extremely hard for his family made a conviction for this offence at this stage of his life tragic, both for him and his family. He said it would be "a very shattering experience for him". Counsel then added:

"I appreciate in respect of drug offences that the courts are usually left with very little option and I see no point in me prolonging the matter other than to indicate to you that we have to accept the jury's verdict and because of that, we are faced with a drug offence committed by a man who has never had any offences in the past in connection with drugs. Although the statutory presumption applies to this particular matter, it's difficult to see what his real involvement is in respect of selling or supplying."

11 At that point his Honour said he thought he might come back to counsel after hearing from the State Prosecutor.

12 She said the State's position was that a term of immediate imprisonment was the only appropriate disposition. The weight of the drug was more than twice the threshold for the statutory presumption and was of a high percentage of purity with a street value of over $4,000. As there was no indication that the applicant was a drug user the only conclusion that could be drawn was that he was involved in the selling or supplying of the drug. In fact, of course, that was the effect of the statutory presumption.

13 At that point the learned sentencing Judge enquired of counsel whether it would be of any assistance to him were he to learn more from the police about the background to the matter, making the comment that it was an unusual case in terms of his experience.

14 Counsel for the applicant then gave the following explanation:

"In the way of disclosure there was given to me a surveillance record. He had visited the premises of a Vietnamese man who was associated with drugs on that particular day. That led to the police, who were keeping this other person under surveillance, to taking details of his motor vehicle. They followed him for the rest of the day as a person of interest and that resulted, from their inquiries as to who was the owner of the car and things of that nature, in them searching his vehicle and apparently he had picked up that picture, that of the pinball attachment, and that was taken away and examined. Obviously they suspected that when he collected that, that he must be connected to drugs but that was found to be in no way involved in the drug scene.

The other person who he visited on that particular day - there had been a transfer of a plastic container but that contained curry so it was of no interest whatsoever to the police, but they had the warrant; they found the drugs, and I'm not in a position with the jury's verdict but I was kindly given the surveillance record in this matter by way of disclosure. Unless the prosecutor objects in any way whatsoever I'm quite happy for you to see how he came to the attention of the police. Other than that, sir, I know nothing further; I was not the lawyer originally acting for him in this matter."

15 His Honour then proceeded to pass sentence. It is apparent from his sentencing remarks that the learned sentencing Judge thought himself at a disadvantage for want of more information about the circumstances of the offence in particular. It is as well that I set out his Honour's remarks in full:

"Lester Jude Samuel, you have been convicted after trial by jury on indictment 793 of 2002 of one count of being in possession of methylamphetamine with intent to sell or supply. The charge arises out of a police operation on 22 November 2001 when police, executing a search warrant under the Misuse of Drugs Act, executed that warrant by searching a car which you acknowledged to be your own. In the boot of the car they found a blue bag, like a blue travel bag, in which they located a quantity of amphetamine (sic) parcelled in clipseal bags inside an aluminium foil.

You were the subject of a video search film and then of a video record of interview in which you denied any knowledge of the package, including the amphetamine (sic), but acknowledged that the vehicle was yours and that the bag and its contents, save for the methylamphetamine, were yours. You were charged with possession with intent. The evidence of the intent being on the basis of the legal presumption that a person in possession of more than two grams of methylamphetamine is taken to be intending to sell or supply some to another. You told the police that there was only one set of keys to the vehicle and only one person used the vehicle.

You came to trial on the basis that you had no knowledge of the existence of the amphetamine (sic). The presumption was not challenged for that reason. Your evidence is that you are not a user of the substance. You are 47, I think, years of age. You have lived in Australia for something like 15 - more than that, 17 years. You have, it seems, had significant periods of employment. You are a family man and obviously close to your family and for my purposes you have no relevant history before the courts. I have read the references that have been provided by your counsel in relation to the church of which you are apparently a member and your employment and there seems to be no reason to doubt that you have been a good worker and a good family member.

I fail to understand why you would commit this offence which of course you deny having committed but on which the jury has returned a verdict of guilty by which I am bound. The papers provided to me by your counsel since conviction indicate this was a police surveillance operation which of course is what the police themselves said in very brief form in evidence and I am, whilst better informed by that information, still mystified as to what you (sic) part you played or why you would be involved in these sorts of matters. At your age there is, as your counsel indicated, not much reason to obtain a pre-sentence report.

The courts in this country have made it quite plain, as do the courts elsewhere, that involvement in this sort of activity really only has one end result. It's not put to me that your personal antecedents would justify suspension of a term of imprisonment to be served immediately. Given the quantity, which is not large, given the absence of other connecting information other than the police surveillance report and the evidence, as I say, I'm somewhat mystified as to why you would be involved in this. No doubt there are matters of which I'm not aware.

I take into account your prior history and your work and family situation but you're not a user, there's no suggestion really therefore that this involvement could have been for anything other than gain which I, as I say, fail to really understand. It would seem to me that a term of imprisonment to be served immediately is inevitable but given your prior history and your other personal considerations which I have briefly referred to I don't wish to make that a longer term than the community would call for in the circumstances.

You are sentenced to a term of two years' imprisonment. That will start immediately. There is no reason in the materials before me why you should not be eligible for parole and I make you eligible for parole."

16 To some extent, this sparse factual information was supplemented, without objection, by statements from the bar table on the hearing of the application for leave to appeal.

17 According to counsel for the applicant, evidence was given at the trial by the applicant and his wife and son (a flying instructor), all of whom said the drug belonged to a cousin who had since returned to India. Hence the reference before his Honour to "family harmony".

18 Counsel emphasised that there was no evidence the applicant had obtained the drugs, simply that he was in possession of them. That is correct. It was not suggested at any stage either that the applicant had been under surveillance, or that he had obtained the drugs from the Vietnamese man whom he visited for an innocent reason, but who was under surveillance by the police at the time.

19 The drugs themselves were found in clipseal bags, all contained in a larger clipseal bag.

20 So far as grounds 1 and 2 are concerned, it cannot be said a sentence of 2 years imprisonment was manifestly excessive for an offence of possessing 6.25 grams of methylamphetamine of 25 per cent purity with intent to sell or supply, even given the matters personal to the applicant. There was no reduction to be given for a plea of guilty, for remorse or for cooperation with police.

21 Comparisons with sentences imposed in other cases are not usually helpful, since circumstances from case to case vary so widely.

22 However, those cases to which we were referred on behalf of the applicant tended to support a view that a sentence of 2 years imprisonment was well within the range of a proper exercise of his Honour's sentencing discretion.

23 The authorities make it clear that previous good character and other factors personal to an offender will not be accorded great weight in sentencing for drug offences involving sale or supply. That is partly because organisations dealing in drugs seek out persons of good character to carry out tasks of that nature (see Miller v The Queen [1999] WASCA 66). Although in the applicant's case there is no suggestion he was acting on behalf of anyone else, it must be accepted that he committed the offence purely for personal financial gain, as he was not himself a drug user. Nor was there any evidence of financial need or desperation.

24 There were substantial personal factors operating upon the offender in R v Votano [2000] WASCA 144. He was a mature family man with an excellent background and character, who had pleaded guilty to two counts of possessing amphetamines with intent to sell or supply. He was a courier conveying the drugs to Perth from interstate. There was one package of 146 grams of powder of 55 per cent purity and one package of 988 tablets weighing 237.9 grams with a purity of 6.8 per cent. The applicant had lost his job and had been subject to great financial pressure and distress. He was given an effective sentence of 3 years imprisonment. On a Crown appeal, Wallwork J (with whom Kennedy and Pidgeon JJ agreed) held the sentencing Judge had given too much weight to the offender's personal circumstances. The sentence was increased to 7 years imprisonment. That sentence of course reflected the constraints on the court on a Crown appeal.

25 In Chick v The Queen [2000] WASCA 231 the applicant had been convicted after trial of 10 offences of possessing drugs with intent. There were separate counts of possession of cannabis, LSD, methylamphetamine, ephedrine and amphetamines. This Court held that an aggregate sentence of 11 years was not excessive. Sentences of 7 years imprisonment had been imposed in respect of each of two counts of possessing methylamphetamine, being 106.75 grams and 181 grams respectively. All the sentences imposed added up to 23 years 9 months imprisonment, but the sentencing Judge structured them to produce an aggregate of 11 years in deference to the totality principle. In commenting on this Anderson J (with whom Pidgeon and Wallwork JJ agreed) expressly said that each of the individual sentences was of an appropriate length.

26 In Vogel v The Queen [2002] WASCA 261 a sentence of 3 years imprisonment with eligibility for parole was upheld in respect of one count of possession of methylamphetamine with intent to sell or supply. The offender had two packets of white powder, one containing 3.8 grams of methylamphetamine of 11 per cent purity and the other containing 2.86 grams of 37 per cent purity. At [8] Wheeler J pointed out that:

"This Court has now noted on a number of occasions that methylamphetamine is regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs: Darwell v R (1997) 94 A Crim R 35. The major sentencing considerations in relation to offences of this kind are general and personal deterrence, and there has been a "firming up" of sentences in this area in the last 5 years or so, based upon the view taken by the courts that sentences imposed in the past do not seem to have been an adequate deterrent: Bellissimo v R (1996) 84 A Crim R 465."

27 Those observations are apposite to the present case (and see Reppucci (1994) 74 A Crim R 353 and the authorities referred to therein).

28 Leonard v The Queen, unreported; CCA SCt of WA; Library No 990152; 29 March 1999 was a case in which 22.4 grams of amphetamines of 8.5 per cent purity was purchased from the offender by an undercover police officer. The offender was sentenced to 5 years imprisonment. Application for leave to appeal against sentence was refused. Noting that on the evidence the only profit which the applicant and his co-offender received was a small portion of the drug for their own use, Heenan J nonetheless stressed that (at 7):

"It must be kept in mind that the vice at which the drug laws primarily are directed is the supply of dangerous drugs to others. Trafficking in any substantial degree is a grave offence. The gaining of profit simply makes it worse. In this case the applicant and [his co-offender] were contributing to the dissemination of a drug the use of which is related to many serious crimes. A heavy deterrent penalty almost always is required for such conduct."

29 Even on this brief comparison it can be seen that the sentence of 2 years imprisonment was well within the range of the sound exercise of his Honour's sentencing discretion.

30 In addressing the third ground of appeal, counsel for the applicant submitted the learned sentencing Judge failed to follow the process required by s 39(3) of the Sentencing Act 1995 (WA). That section relevantly provides that:

"(2) Subject to sections 41 to 45, a court sentencing an offender may -

(a) with or without making a spent conviction order, under Part 6 impose no sentence and order the release of the offender;

(b) with or without making a spent conviction order, under Part 7 impose a CRO and order the release of the offender;

(c) with or without making a spent conviction order, under Part 8 impose a fine and order the release of the offender (unless an order under section 58 is made);

(d) with or without making a spent conviction order, under Part 9 impose a CBO and order the release of the offender;

(e) under Part 10 impose an ISO and order the release of the offender;

(f) under Part 11 impose suspended imprisonment and order the release of the offender_;_ or

[(g) deleted]

(h) under Part 13 impose a term of imprisonment.

(3) A court must not use a sentencing option in subsection (2) unless satisfied, having regard to Division 1 of Part 2, that it is not appropriate to use any of the options listed before that option."

31 In making that submission, counsel acknowledged this Court held in Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998 that there is no obligation on a sentencing Judge to refer to each sentencing option adumbrated in s 39.

32 In that case the 28 year old female offender had been sentenced to 2 years imprisonment with eligibility for parole following conviction after trial of 30 counts of stealing as a servant. She was of previous good character with a good work record and had been in financial difficulties. The offences were committed over 16 months. She was a trusted bookkeeper of a self-employed contractor. The thefts were accompanied by falsification of records. On the appeal it was submitted for the applicant that there was manifest error because the sentencing Judge did not reveal that any consideration whatsoever had been given to the option of a suspended sentence and that a sentencing Judge must "work through" each of the provisions of s 39. As to this, Franklyn J (with whom Malcolm CJ and Ipp J agreed) said (at 6-7):

"The gravamen of that submission, it seems to me, is that it is incumbent on a sentencing Judge imposing any sentence option provided for by s39(2) to make express reference to each of the options listed in s39(2) before that option and to his satisfaction that it is inappropriate to use any of the same. Whilst not within the appeal grounds it is my opinion that that contention should be put to rest. It is not supported by common sense, logic, the presumption of regularity or any principle of construction. That the sentencing Judge should make the references contended for is not a requirement of the Act. It is trite to say that a Judge is presumed to know the law. A conclusion by a sentencing Judge that a specific sentencing option is appropriate carries the necessary inference of satisfaction that all other options are inappropriate. That the sentencing Judge does not express in positive terms that conclusion cannot lead to an inference that he failed to give proper consideration to the inappropriateness of the sentencing options not exercised by him. That this is so is made clear, in my view, by the provisions of s6(4) of the Sentencing Act 1995 which provides:

'(4) 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.'

Further support is obtained from the provisions of s145(1) of the Act which provides:

'The failure of a court sentencing an offender to comply with a requirement of this Act does not invalidate a sentence imposed or an order made by it'."

33 That decision then is clear and binding authority for the proposition that it is not incumbent upon a sentencing Judge to expressly refer to each of the options in s 39, nor indeed, even those preceding the one he or she considers appropriate in the particular case.

34 As I understood it, counsel's submission here was rather that although the Sentencing Act does not require specific reference to the sentencing options, it does still require the sentencing Judge to give proper consideration to them. That, I think, must be right. It follows from a plain reading of the section. The question then is whether in the particular case what appears reveals either that no consideration was given to a sentencing option lower in the hierarchy, or that inadequate consideration was given to it. In some cases it will be readily apparent that an option is not realistically open and in those circumstances a sentencing Judge could not be criticised for not expressly referring to it. In other cases, the circumstances may be such that two or more options may be realistically open and then it would usually be necessary for the sentencing Juge to make some reference to why the less severe option is not appropriate.

35 The High Court has made it clear that it would be an error of law to conclude that a sentence of imprisonment is appropriate and only then consider whether it can be suspended. The court held in Dinsdale v The Queen [2000] HCA 54; (2000) 175 ALR 315 that such an approach reverses the statutory process. Furthermore, the court in Dinsdale emphasised that it is wrong to reserve a suspended sentence only for those cases in which there is a prospect of rehabilitation or a need to show mercy to an offender; all of the circumstances must be considered, not only as going to the length of the term of imprisonment, but also as to whether or not suspended imprisonment is appropriate.

36 Nor is a suspended sentence to be reserved for minor offences. Section 76 of the Sentencing Act expressly allows a sentence of up to 5 years imprisonment to be suspended. It therefore necessarily contemplates that sentencing option may be used in an appropriate case even in respect of an offence of sufficient seriousness as to justify a term of imprisonment of up to 5 years.

37 The point was made by Murray J in Minchinton (1998) 104 A Crim R 502 at 507, where his Honour reiterated what he had earlier said in R v GP (1997) 18 WAR 196, that:

"... beyond the general statements of principle as to the circumstances in which it will be appropriate to suspend imprisonment, and having regard to the way in which the relevant provisions of the Sentencing Act are expressed, there is 'no warrant for the conclusion that an additional element should be incorporated with respect to any given class or type of offence which would make the use of a suspended sentence a more exceptional, rare or unusual disposition than in respect of a different type of offence', given that the conditions warranting suspension are made out. The Sentencing Act is constructed in such a way as to negate the view that in any particular class of case suspension of imprisonment will only be justified in exceptional circumstances."

38 It cannot be said here that the learned sentencing Judge failed to give any consideration of the option of a suspended sentence. He must have done, because he expressly commented that it had not been put to him that the applicant's personal circumstances would justify suspension of a term of imprisonment to be served immediately.

39 However, in expressing it that way, it seems to me his Honour fell into the error identified in Dinsdale. In saying that the courts of this country and elsewhere have made it quite plain that involvement in this sort of activity really has only one end result, it is plain his Honour was referring to immediate imprisonment. His Honour's comment then that nothing had been put to him which would justify suspension, suggests he was directing himself to the question whether immediate imprisonment being appropriate, it could be suspended. That reverses the statutory process.

40 Furthermore, it is apparent that his Honour perceived in the matters before him, a number of circumstances which in fact bore directly and cogently on the question whether a suspended sentence of imprisonment was appropriate, and should have been taken into consideration in that regard. These included that the applicant was a 47 year old first offender who had an unblemished history of some 17 years in this country, he was a good family man, married with two sons, was a good worker, the quantity of the drug was not large, he was not a drug user and there was no apparent explanation for his commission of the offence - indeed, his Honour said he failed to understand why the applicant would have committed it.

41 There was nothing to suggest the applicant was likely to commit any offence in the future.

42 A failure by counsel for an offender to submit a particular sentencing disposition is appropriate, does not relieve a sentencing Judge from a statutory obligation to comply with s 39 of the Sentencing Act. As I have said, that requires a proper consideration of realistically alternative sentencing options. In the circumstances of this case, and having regard to the very brief reference his Honour made to the question of a suspended sentence and the manner in which he expressed that, I think his failure to mention the factors bearing on the question whether a suspended sentence was appropriate, reveals that his Honour erred in failing to give proper consideration to that question. That being so, the exercise of his sentencing discretion miscarried and the sentence must be set aside.

43 This was a case such that, notwithstanding the seriousness of the offence, a suspended sentence was appropriate. It was a sentence of imprisonment for a term which would reflect the seriousness of the offence and it was one which would in my view operate as a powerful personal deterrent to the applicant. Although considerations of general deterrence will ordinarily carry great weight where drug dealing offences are concerned, that principle does not inevitably have to be given primacy in every case. It is sometimes in the greater public interest to give more weight to the principles of condemnation, personal deterrence and rehabilitation. In my view, this is one such case. That is why I concluded that leave to appeal should be granted, the appeal allowed, the sentence of the District Court set aside and the sentence of 2 years imprisonment to be suspended for 2 years from the date of hearing of the appeal, be substituted.