STAIGER -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 99 | Case summary

Court of Appeal (WA)|2020-06-23|Before: Buss P

The appellant seeks leave to appeal against a total effective sentence of 3 years 8 months' immediate imprisonment, imposed for two counts of possession of methylamphetamine with intent to sell or supply to another.
Count 1 concerns the possession of a total of 6.83 g of methylamphetamine found in various locations in the appellant's bedroom during a search of his South Lake residence by police on 14 June 2018. The sentencing judge found that the appellant was a heavy methylamphetamine user at this time, and that the drugs were predominantly for his personal use. However, he would supply it, in terms of sharing it, with others. The sentencing judge found that there was also a 'small element of commerciality' in that the appellant was dealing 'very much at a retail user, drug user level, in order to cover the costs of [his] own sale, not to make a profit'.[1] The appellant received a sentence of 8 months' immediate imprisonment (reduced from 1 year for totality) in respect of count 1.
Count 2 concerns the possession of a total of 29.51 g of methylamphetamine found by police on 28 July 2018, when the appellant was on bail in respect of count 1. About 28 g, or an ounce, with a purity of 77% was found in a ball of electrical tape located in a satchel strapped to the appellant's leg as he rode a motorcycle in South Lake. A further 0.72 g was found with a glass smoking pipe in the saddlebag of the motorcycle. A later search of the appellant's residence located a further 1.15 g of methylamphetamine in a bedside drawer. The sentencing judge sentenced the appellant on the basis that the majority of the drug was for the appellant's personal use, but he would occasionally supply drugs, and also sell drugs in order to try to recoup some of the costs of his own methylamphetamine habit. The appellant received a sentence of 3 years' immediate imprisonment (reduced from 3 years 6 months for totality) in respect of count 2.
The appellant was 50 years old at the time of sentencing. He had a good upbringing in New Zealand, and had a productive working life. He had served in the Navy and, for many years since moving to Western Australia in 2005, had managed a bar. He suffered significant depression following financial difficulties in his business when he was the victim of fraud or theft, the breakdown of his marriage and an injury suffered in a skateboard accident. His methylamphetamine dependence followed use of that drug in an attempt to self-medicate his depression. After his arrest, the appellant sought treatment to address his mental health issues, resulting in a significant improvement in his mental health. The appellant had no significant prior criminal record.

Mr Staiger had an entrenched methamphetamine dependence. Whether or not he was dealing drugs, it is arguable that his case primarily reflects a medical issue more than a lifestyle or criminal one in that it is likely that he would not have used methamphetamine let alone become depressed beforehand had he not been subject to the severe stress that he was from around 2012. Similarly, he is unlikely to have developed methamphetamine dependence to the extent that he did had his depression been adequately treated in the first place.

The sentencing judge indicated that he did not accept this passage insofar as it might suggest that there was some sound medical reason to turn to methylamphetamine. The sentencing judge went on to observe:[5]

I understand how you went there. But your psychological - your mental health did not drive you there in that sense. That was a choice that you made at that point because you were resistant and not using the treatment that normally would be used. All right. So in that sense, it's not causative.

But this is not something that happened - your methylamphetamine use, I accept, is not something that happened in a vacuum. It is something that happened as your response to those circumstances that you were in at the time, albeit that it involved poor choices by you.

The sentencing judge was correct to conclude that a mental health disorder could not be regarded as causative of the offences of possession of methylamphetamine with intent to sell or supply it to another. No error has been revealed in his Honour's approach in that regard.
Ground 2 contends that the 'total sentence was manifestly excessive' having regard to the mental health issues noted above, the lack of any significant criminal record and the effect of imprisonment on the appellant's mental health condition. The appellant contends that an intensive supervision order would have been appropriate to enable him to continue treatment in the Alma Street clinic. We will treat this ground as contending that the individual sentences were manifestly excessive as to type and length, and that the total effective sentence infringed the first limb of the totality principle.
Ground 2 asserts inferred error. The principles governing the determination of sentencing appeals on the ground of inferred error are well established and need not be repeated here.[6]
There is no merit in the submission that the appellant ought to have received a sentence type other than immediate imprisonment. It is well established that generally, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for serious drug offences. The major sentencing considerations for offences of dealing or trafficking in dangerous drugs are general and personal deterrence. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. The question for this court on appeal is whether it was reasonably open for the sentencing judge to conclude that sentencing options other than immediate imprisonment were inappropriate in the circumstances of the particular case.[7]
There was nothing in the particular circumstances of this case which could arguably make an intensive supervision order, or a suspended or conditionally suspended sentence of imprisonment, appropriate sentencing options. The sentencing judge's conclusion that sentences of immediate imprisonment were the only appropriate sentencing option was plainly correct. It would not have been open to the sentencing judge to have imposed sentences other than immediate imprisonment for these offences.
Further, having regard to:

(1) the maximum penalties (25 years' imprisonment for count 1 and life imprisonment for count 2);

(2) the customary sentencing standards for this kind of offending;[8]

(3) the circumstances of the appellant's offending (including the quantities of methylamphetamine the subject of count 2 and the fact that count 2 was committed while on bail for a serious drug offence);

it is not reasonably arguable that either the individual sentences or the total effective sentence were so long as to be unreasonable or plainly unjust. It cannot arguably be inferred that the sentencing judge erred by imposing sentences longer than those which were commensurate with the seriousness of the appellant's offending.

As neither ground of appeal is reasonably arguable, leave to appeal should be refused on both grounds and the appeal should be dismissed.

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

Research Orderly to the Honourable Justice Mitchell

[3] See, for example, Kirby v The State of Western Australia [2016] WASCA 199 [43].

[6] See, for example, Kabambi v The State of Western Australia [2019] WASCA 44 [21].

[7] See the discussion in Dinh v The State of Western Australia [2019] WASCA 167 [27] - [31].

[8] As to which see, for example, The State of Western Australia v Delaney [2020] WASCA 93 [24] - [33].

STAIGER -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 99 (23 June 2020)

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Legislation Cited (1)