Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentencing - One count of possession of methylamphetamine with intent to sell or supply - Whether sentence of immediate imprisonment manifestly excessive - Turns on own facts

Criminal Appeals Act 2004 (WA), s 31(4)(a)

Firearms Act 1973 (WA)

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

Duong v The State of Western Australia [2006] WASCA 110

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

Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55

Mishal v The Queen [2001] WASCA 328

The State of Western Australia v Andela [2006] WASCA 77

The State of Western Australia v Marchese [2006] WASCA 153

Vogel v The Queen [2002] WASCA 261

Bellissimo (1996) 84 A Crim R 465

Benter v The State of Western Australia [2005] WASCA 245

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

Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048

R v Gillan [1991] FCA 184; (1991) 100 ALR 66

R v Liddington (1997) 18 WAR 394

R v Osenkowski (1982) 30 SASR 212

R v Penant [1998] 2 VR 453

Wong v The State of Western Australia [2004] WASCA 286

1 ROBERTS-SMITH JA: I have had the benefit of reading in draft the reasons set out by McLure JA. I agree with them.

2 There were only two grounds of appeal. The first was that the sentence was manifestly excessive having regard to the following:

(a) the use of methylamphetamine as a social drug within the Perth community;

(b) the lack of significant indicia indicating the selling or supplying of drugs of a large scale;

(c) the personal circumstances of the appellant, namely:

(iii) the appellant was a first offender in the context of drug offences;

(v) lack of any evidence of drug distribution network;

(ix) the fact that there is no tariff for drug-related sentences;

(x) the fact that the conviction was not the result of an intense drug-related operation or surveillance;

(xii) the fact that the police stumbled across the drug-related paraphernalia and drugs during the course of a search in relation to another matter;

3 The second ground of appeal was that the sentencing Judge failed to give adequate weight to matters personal to the appellant and too much weight to general deterrence.

4 In the course of the hearing, Mr Moen conceded that the substance of the appellant's appeal was simply that his Honour should have ordered that the sentence be suspended.

5 This Court may allow an appeal against sentence only if brought to the opinion that a different sentence should have been imposed (s 31(4)(a) Criminal Appeals Act 2004 (WA)) - what must be shown is that there was a miscarriage of the exercise of the sentencing discretion such that a different sentence should have been imposed. It must be demonstrated that the sentence falls outside the range of a sound exercise of the sentencing discretion (Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665). Even where some specific error can be demonstrated, an appeal cannot be allowed unless the Court is of the opinion that a different sentence should have been imposed. McLure JA has succinctly explained why that conclusion could not be reached here.

6 I think some of the particulars to ground 1 require brief comment.

7 There were no submissions directed to the use of methylamphetamine as a social drug within the Perth community. That is not surprising. There was no evidence going to that point. It is entirely unclear how the social use of a prohibited drug within the community could be a factor in mitigation of sentence. It is notorious that various prohibited drugs are so used, as is the harm caused to and in the community, as a result. The particular is meaningless.

8 In the context of an applicant's plea of guilty to possessing a prohibited drug with intent to sell or supply, the "lack of significant indicia indicating the selling or supplying of drugs on a large scale" is tantamount to saying no more than that if such indicia had been found, the appellant could have been treated more severely than he was. The same may be said about particulars (c)(x), (xi) and (xii). They all amount merely to an argument that if the objective circumstances had been more serious and demonstrated a greater degree of culpability of the appellant, a more severe sentence could have been imposed. Those particulars are otherwise irrelevant.

9 Particulars are important to the presentation of a ground of appeal and the conduct of an appeal. They ought not be included unless they are demonstrably relevant to the ground, founded in the material before the court and bear logically on the outcome to which the appeal is directed.

10 McLURE JA: On 11 October 2005 the appellant was convicted on a fast track plea of guilty of one count of possession of methylamphetamine

with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The conviction relates to 22.7 grams of methylamphetamine of 8 per cent purity.

11 On 11 November 2005 the appellant was sentenced by Healy DCJ to a term of immediate imprisonment of 30 months with eligibility for parole. The appellant appealed against the sentence on the ground that it was manifestly excessive. He contended that a suspended sentence should have been imposed. At the conclusion of argument on the appeal, the Court was unanimously of the opinion that the appeal should be dismissed. These are my reasons for arriving at that conclusion.

12 The facts found by the sentencing Judge are as follows. In the late evening on 13 May 2005 the police executed a search warrant under the Firearms Act 1973 (WA) at the appellant's premises. The police found a large clip seal bag with 22.7 grams of methylamphetamine concealed among clothing in a wardrobe in the appellant's bedroom. On a window sill, behind window blinds, the police located a plastic container holding 18.3 grams of diamethylsulfone, a white powder commonly known as MSM and used as a cutting agent. Other drug-related paraphernalia was also found in the appellant's bedroom, including digital scales and a smoking implement, both containing traces of methylamphetamine, and three clip seal bags showing traces of a white powder. There were further empty and unsealed clip seal bags found in the bathroom.

13 The appellant was aged 27 at the time he committed the offence. He had a minor record of offending that included firearms and traffic offences. He had a successful business which he closed in order to invest in another business that failed. A psychological report dated November 2005 suggested the appellant worked hard and had a strong need to succeed in business and generally. He was a user of amphetamines which use appears to be linked with the failure of a relationship, the subsequent failure of his business and associated depression. The appellant has a close and supportive family.

14 The appellant's counsel informed the sentencing Judge that the appellant was not in a position to say how much of the drug in his possession was for his personal use. The sentencing Judge correctly approached the matter on the basis that the appellant was "a user dealer" (see Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55; Duong v The State of Western Australia [2006] WASCA 110 at [6] - [7]).

15 The relevant sentencing principles relating to offences of this nature were discussed at length in The State of Western Australia v Andela

[2006] WASCA 77. It is unnecessary to repeat them here. It is sufficient to note that ordinarily courts impose a term of immediate imprisonment for drug trafficking. Personal and general deterrence are weighty considerations. Trafficking in drugs results in significant adverse consequences for drug users and the community as a whole. As a result, less weight is given to matters personal to an offender. Having regard to all relevant matters, including the circumstances of the offence and matters personal to the appellant, a term of immediate imprisonment is the penalty customarily imposed and is not manifestly excessive (Vogel v The Queen [2002] WASCA 261; Mishal v The Queen [2001] WASCA 328; The State of Western Australia v Marchese [2006] WASCA 153). Accordingly, I was satisfied that the sentencing Judge did not err in imposing a term of immediate imprisonment.