Court of Appeal (WA)|2004-06-30|Before: Murray J, Miller J, McLure J

Schlenka v The Queen [2004] WASCA 142 (30 June 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SCHLENKA -v- THE QUEEN [2004] WASCA 142

Criminal law and procedure - Sentencing - Possession of methylamphetamine with intent - Young offender imprisoned for first time - Whether sufficient weight given to rehabilitation

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

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

R v Bellissimo (1996) 84 A Crim R 465

Watt v The Queen [2000] WASCA 354

1 JUDGMENT OF THE COURT: The applicant is a young man who is about to turn 29. On 8 October 2003, he and a co-offender, a man named Downes, were convicted by a jury in the District Court of the offence of possession of methylamphetamine with intent to sell or supply it to another, contrary to the Misuse of Drugs Act 1981 (WA), s 6(1)(a). Under s 34(1)(a), that offence is punishable by a fine of $100,000 or imprisonment for 25 years or both.

2 The offence occurred at Balladonia on 16 September 2001, some 2 years before the matter came to trial. A car being driven by the applicant was stopped by police officers for speeding. Hidden under the cover of the front passenger seat were two plastic bags wrapped up together in black tape. When opened, the bags contained a total of 12.7 grams of methylamphetamine of high quality, a purity of 47 per cent. Although the purity was high (the drug traded on the street would usually be of a purity of between 3 and 7 per cent), the quantity was relatively small. Under the Act, s 11 and Sch V, possession of 2 grams of the drug will be deemed to be possession with intent to sell or supply, unless the contrary is proved. Under s 32A and Sch VII, conviction of possession of 28 grams of the drug with intent, will expose the offender to a declaration that he or she is a drug trafficker.

3 Her Honour the trial Judge, while passing sentence, noted the quantity and high degree of purity when describing the offence as "extremely serious". In our respectful opinion, her Honour was right to describe the offence in that way.

4 The drug was jointly possessed by the two co-offenders and was certainly to be jointly used by them. Their unsuccessful defence at trial was that they had no intent to sell or supply others, but proposed to use the whole of the drug in their possession themselves. Her Honour accepted that they would have used part of the drug, but observed that its degree of purity was such that it could be cut a number of times and disseminated widely in the community for some form of gain. It should be noted that her Honour did not distinguish between the relative culpability of the two offenders, both of whom were relatively heavy users of methylamphetamine. They had purchased the drug while on a trip to NSW, because of its high degree of purity.

5 It appears to have been accepted that in retrospect the applicant was genuinely pleased that he was apprehended. He had acquired the habit to which we have referred when he was diverted from a stable lifestyle and employment by associating with a group of people who used the drug for recreational purposes. For a period of some months he engaged in what was described as a destructive lifestyle. Immediately following the arrest and the charge of this offence, when the applicant was released on bail, he voluntarily undertook a two months residential course of rehabilitation at a place called Hannick House, an institution run under the auspices of St Patrick's Catholic Church in Fremantle. He completed the course successfully, undertaking counselling sessions twice weekly. He remained drug free during this period.

6 Also during this period, the applicant, who works as a boat fitter, obtained employment with a company called Shine Fisheries in Fremantle, employment described by a principal of that company as that of a casual labourer. We gathered that the work is seasonal and so the applicant is presented with periods of unemployment, but subject to that he held that employment while he remained at liberty on bail for the 2 years leading up to his trial.

7 Again, shortly after completing the course at Hannick House, the applicant met a young woman with whom he formed a relationship and with whom he lived since April 2002. This young woman, herself in full-time employment, wrote to the Court that the applicant told her of the offence with which he had been charged and his determination to cease the use of amphetamines, a determination which she said he had made good. She said in her letter, honestly, that the applicant and she used only small amounts of cannabis "on a strictly recreational basis".

8 That is in fact confirmed by the applicant's criminal record which reveals that at the time of the commission of this offence, the applicant had no prior criminal history. But in the Fremantle Court of Petty Sessions, in February 2002, he was convicted of the possession of a smoking implement and fined $125. In May 2003 he was convicted of a similar offence, for which he was fined $150, and of possession of cannabis, for which he was fined $300. Those convictions, to our mind, as was the view of the sentencing Judge, were of no significance when considering the sentence for the earlier offence of possession of methylamphetamine with intent.

9 This history was known to her Honour the sentencing Judge. She had regard to it and her Honour considered whether a non-custodial disposition of the case could be warranted. Despite the recommendation in a pre-sentence report that the Court might make a form of community based order, the sentencing Judge considered the case to be too serious. Her Honour noted a number of prior decisions and, with respect correctly, observed that in cases of this kind, personal and general deterrence were of particular significance. Her Honour appreciated that that did not mean that the personal circumstances of offenders were to be treated as being without weight but, again with respect correctly, her Honour observed that such factors could not "override the gravity of the offending or the need for general deterrence to be stressed in the sentencing process". Having regard to those matters, her Honour rejected a community based disposition.

10 She decided that imprisonment was the only available option and considered whether the sentence to be imposed should be suspended. Her Honour referred herself to Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, where the proper approach to the consideration of suspension of service of a sentence of imprisonment was discussed by the High Court. Her Honour determined that a sentence of imprisonment to be immediately served was the only available option. That, in our opinion, is a highly defensible view of the case and the way in which her Honour the sentencing Judge arrived at that conclusion reveals, in our opinion, no error which might cause this Court to intervene.

11 Her Honour expressed the view that a sentence of 3 1/2 years imprisonment was the appropriate disposition. She then had regard to transitional provisions following amendments to the Sentencing Act 1995 (WA), which required her Honour to reduce that term by a third. That produced a term of 2 years and 4 months, which was imposed on 25 November 2003, with eligibility for parole, backdated to 8 October 2003, since when, following his conviction, the applicant had been in custody.

12 It is against that sentence that the applicant now seeks leave to appeal. He argues that the sentence was manifestly excessive, having regard to the rather unusual circumstances of the demonstration to the sentencing Judge that the applicant had, by the time of sentence, shown that he had successfully rehabilitated himself, that he had put behind him what had been an involvement with methylamphetamine of a limited duration, and that he had rebuilt a law-abiding way of life, involving a stable personal relationship and stable employment.

13 The respondent argues that these matters were not overlooked by her Honour, and submits that the sentence should be regarded as a proper exercise of discretion having regard to the seriousness of the offence, including the high degree of purity of the drug which enabled it to be cut to a concentration relevant to street distribution, and which potentially exposed the community to its distribution. The respondent submits that in those circumstances her Honour's discretionary judgment by way of sentence should not be interfered with by this Court: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671-2.

14 However, in our view, while her Honour's sentence would ordinarily be regarded as being within the range of a proper exercise of sentencing discretion, this was a particularly unusual case. The applicant was a person of prior good character. He had, for a short period, fallen into a lifestyle which exposed him to the regular use of amphetamines. He took that up, and soon acquired a substantial habit. Upon his arrest, of his own volition, he immediately set about remedying his fall into serious unlawful behaviour. He undertook that task with some determination and, upon the evidence provided to the sentencing Judge, he succeeded in rebuilding his life. He deserved substantial credit for that effort.

15 Although her Honour was right to have regard to the seriousness of the offence the applicant had committed, she was also right to observe that that did not mean that matters of mitigation were to be overlooked or to be regarded as being without weight. However, in our opinion, her Honour simply gave too little weight to such matters. While imprisonment to be immediately served was, we think, the appropriate disposition, we are of the view that a shorter term would adequately serve the principle of general deterrence. Particularly is that so, in our view, when regard is had to the fact that by the time the applicant came to be sentenced the requirement for particular deterrence was much reduced.

16 In our view, the applicant should be granted leave to appeal and the appeal should be allowed. We would quash the sentence imposed. Turning to the task of resentencing the applicant, in our opinion, under the former sentencing regime, a sentence of 2 1/2 years imprisonment would have been the appropriate disposition. Applying the reduction of one-third required by cl 2(1) of Sch I of the legislation amending the Sentencing Act as from 31 August 2003, that term would be reduced to a term of 1 year and 8 months imprisonment. The term dates from 8 October 2003 with eligibility for parole. The non-parole period will expire on 8 August 2004.

Schlenka v The Queen [2004] WASCA 142

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Schlenka v The Queen [2004] WASCA 142 (30 June 2004)

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