Criminal law - Appeal against sentence - Possession of methylamphetamine with intent to sell or supply - Failure to comply with a data access order

1 On 2 July 2013 I allowed this appeal against sentence and resentenced the appellant. I indicated at that time that reasons for my decision would be subsequently published.

2 On 26 March 2013 the appellant pleaded guilty to a charge of possessing a prohibited drug, namely methylamphetamine, with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) and a charge of failing to obey a data access order, contrary to s 61(2) of the Criminal Investigation Act 2006 (WA). On 11 April 2013 she was sentenced to 30 months' imprisonment on the charge of possession of methylamphetamine and 4 months' imprisonment concurrent for the failure to comply with the data access order. Accordingly, the total effective sentence was 30 months' imprisonment. An order was made that the appellant was eligible for parole.

3 An appeal notice seeking leave to appeal against the sentences was filed on 4 June 2013, approximately five weeks out of time. In an affidavit filed with the appeal notice the appellant says that the reason for the delay was that transcript of the proceedings in the Magistrates Court was not received until 16 May 2013.

4 I have noted in other cases that a delay in obtaining transcript is not generally a sufficient reason for granting an extension where the appeal is against sentence and the appellant was represented in the court below. However, an extension of time may also be granted where it is established that the appellant would suffer a miscarriage of justice if an extension was not granted. In this case, a miscarriage was established and an extension was granted.

5 At the hearing of the appeal the respondent conceded that ground 1 should succeed and the appeal be allowed. That ground is that the magistrate made an error in finding that the appellant was in the midrange level for dealing in methylamphetamine. It was accepted that such a finding was not properly open in circumstances where there had been a trial of issues and the magistrate had concluded that it had not been established that the appellant was dealing commercially in methylamphetamine. That concession was properly made. The erroneous finding was a significant one. It was accepted by the respondent that the appropriate course was to set aside the sentence imposed for the drug offence and resentence the appellant.

6 I was also satisfied that ground 2 should succeed. This ground asserts that the sentence of 30 months' imprisonment for the possession offence was manifestly excessive. I was not satisfied that either of grounds 3 or 4 were reasonably arguable and leave in respect of those grounds was refused. Ground 3 asserted that the 4 month sentence imposed for the failure to obey a data access order was manifestly excessive. Ground 4 asserted that the magistrate erred by excluding suspended sentences of imprisonment for each of the offences.

7 On 9 September 2012 the appellant was driving on the Coalfields Road between Bunbury and Collie when she was stopped by police. A small bag containing 3.5 grams of methylamphetamine was found inside the appellant's bra. Also found on the appellant were a small number of clipseal bags, one of which contained 0.1 grams of methylamphetamine. A set of electronic scales were found on another woman in the car. The scales were later tested and no detectable traces of drugs were found on them.

8 A mobile telephone belonging to the appellant was also seized by the police. The telephone had a pin lock which prevented the police from accessing it. The appellant refused to reveal the pin number, stating to police that she did not want to 'get anyone into trouble'.

9 The appellant was arrested and taken to the Collie Police Station where she participated in an interview. In the interview she told police that she had been given the drugs a couple of days earlier. She denied any intention of selling the drugs and said that she was a user and the methylamphetamine was intended solely for her own personal use.

10 The drugs were subsequently analysed and found to consist of a total of 3.51 grams of methylamphetamine with a purity of 30%. Because the amount of methylamphetamine was greater than the amount specified in sch 5 of the Misuse of Drugs Act, being 2 grams, an intent to sell or supply was deemed by virtue of s 11 of that Act.

11 On 11 October 2012 police obtained a data access order pursuant to the Criminal Investigation Act in respect of the appellant's mobile telephone. The order required the appellant to provide the police with the pin number to the phone. She was served with the order on 13 October 2012. She again refused to comply, stating that she did not want to get anyone into trouble. She refused a further request on 19 October 2012. On 17 December 2012 the appellant was charged with the failure to comply with the data access order. She then provided a pin number. An attempt to access the telephone using that pin number was unsuccessful. The reasons for that were not explained.

12 After some adjournments for legal advice the appellant admitted her guilt in respect of both charges. As regards the possession of methylamphetamine, the appellant admitted that she possessed the drugs with the intention of using some of it for herself and providing some to friends for no charge. However, she denied any intention to sell any of the drugs. In these circumstances she could not challenge the presumption of an intent to sell or supply, however there was a dispute as to the facts. The prosecution case was that the appellant intended to sell drugs, not merely provide them free of charge to her friends. This dispute as to the facts resulted in a trial of issues which occurred on 26 March 2013.

13 At the end of the trial of issues the magistrate stated that he was unable to determine to what extent there was a commercial aspect to the appellant's possession of the drugs. However, he stated that this was not a case of possession by the appellant merely for her own personal use and that of others. His Honour said that there was 'a commercial aspect to it'. These findings appear to indicate that the magistrate made a finding adverse to the appellant. However, his Honour's statements need to be seen in the light of his sentencing remarks.

14 In sentencing the appellant the magistrate made findings that appear to be inconsistent with those made at the end of the trial of issues. In particular, on 11 April 2013, the magistrate stated:

Save aspects of the commerciality attached to the possession of the methylamphetamine, there is no dispute as to what I'll refer to as the primary facts. The disputed fact as to the commerciality was dealt with following a trial of issues on the 26 March 2013 with the court concluding that on the prosecution's case it was unable to establish the commercial aspect of the possession in the sense of the sale of the methylamphetamine, it being your assertion that on the instructions of counsel that it was principally for your own use, that you would share it with friends if they were around and wanted any. However, in the absence of commerciality in the sense of sale is not the end of the matter and for the purpose of sentence it is necessarily the case that I accept that you clearly acknowledge the intent to supply (ts 11/4/13, page 14).

15 It is clear from this paragraph that the magistrate ultimately proceeded on the basis that it had not been established that there was any commercial aspect to the appellant's possession of the drugs. Rather, she was to be sentenced on the basis that she possessed the drugs with the intention of sharing some of it with friends.

16 To the extent that there is an inconsistency, it is clear from the transcript that the magistrate's final position was the one referred to in the passage quoted above. During the course of sentencing submissions the prosecutor referred to his understanding that the finding following the trial of issues was that the appellant was in possession of the drugs for commercial purposes. The magistrate interrupted the prosecutor and said:

HIS HONOUR: The dispute was as to whether there was any commerciality attached to in the sense of money.

PROSECUTOR: Yes.

HIS HONOUR: And my view was, apart from making some observations as to the inadequacy in that respect of the police investigation is that the prosecution hadn't established that particular aspect of the commerciality for money, but that didn't detract, as I am to understand my recollections, from the supply aspect of it and other matters relevant to sentencing.

PROSECUTION: She always said she had it to supply.

HIS HONOUR: That's right. There was no issue about that.

PROSECUTOR: What was the finding?

HIS HONOUR: That the prosecution haven't established the money aspect in terms of the commerciality by way of money. That's not to suggest that it was otherwise, and I'll explain later in greater detail, what my view in that respect was and is. You're frowning.

PROSECUTOR: I'm confused. I thought I had written down fairly basic - found to be a - - -

HIS HONOUR: Maybe I wasn't clear enough, but Ms Walsh will clarify it, if need be, from her recollection. (ts 11/4/13, pages 2 3).

17 The prosecutor's confusion was understandable. Perhaps the magistrate had forgotten what he had said at the conclusion of the trial of issues. Alternatively, it may be that what he said on that occasion did not reflect his final view. In any event, it is what the magistrate said in sentencing that was his final view and the basis on which the appellant was sentenced.

18 Whilst the admission that the appellant intended to supply some of the drugs to her friends meant that she could not rebut the presumption of an intent to sell or supply and remained liable to the higher penalty applicable to an offence in such circumstances, whether she was dealing in drugs by selling them or was merely sharing them with her friends was a relevant factor in sentencing. Having decided that the appellant was to be sentenced on the basis that she was not engaged in any selling of drugs it was not open to sentence her on the basis that she was.

19 Yet, somewhat confusingly, the magistrate considered that it was necessary to determine where the appellant was to be placed on a 'range of drug dealing'. He said that mid range dealers were those in close proximity to importation or manufacture and placed the appellant at the bottom end of mid range offending. He distinguished those in lower range on the basis that they were 'streetdealers'. His Honour justified his conclusion in this regard on the basis that a police witness said that the drugs had a wet and sticky appearance and that this indicated proximity to the point of manufacture. Whether or not that is so, any view that the appellant was a mid level dealer could not be reconciled with the magistrate's acceptance that the appellant was to be sentenced on the basis that she possessed the drugs only for the purpose of using them herself and sharing them with her friends.

20 This ground asserts that the magistrate erred in finding that the appellant was engaged in conduct at a mid range level of dealing in methylamphetamine. I accept that that finding was clearly inconsistent with the magistrate's acceptance that the appellant was to be sentenced on the basis that she intended only to share the drugs with her friends. Having accepted that there was no intention to sell any of the drugs, it was not appropriate to deal with the appellant as if she was a mid level dealer. The error was compounded because the magistrate then referred to cases involving offenders who had been correctly categorised as dealers.

21 On the hearing of the appeal the respondent accepted that the magistrate had made the error referred to in this ground and that the error was a material one. Given the facts referred to above, that concession was clearly properly made. In those circumstances leave to appeal in respect of ground 1 was granted, the appeal allowed and the sentence on the possession charge set aside.

22 This ground asserts that the sentence of 30 months' imprisonment on the possession charge was manifestly excessive. Given that the appeal was allowed on ground 1 it is strictly unnecessary to determine this ground. However, I will do so for the sake of completeness.

23 A ground of appeal that asserts that a sentence is manifestly excessive is a complaint of implied error; that is, whilst there may be no express error that can be identified, it is said that the sentence imposed was inappropriate having regard to all the circumstances such that it can be inferred that the magistrate erred in the exercise of his discretion.

24 To determine whether a sentence is manifestly excessive, it is necessary to take into account the maximum sentence prescribed by law, the standards of sentences customarily imposed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of offences of this type and the personal circumstances of the offender: See Chan (1989) 38 A Crim R 337, 342 (Malcolm CJ).

25 The maximum penalty for possession of a prohibited drug with intent to sell or supply it to another is a fine not exceeding $100,000 or imprisonment of up to 25 years or both. Where sentenced by a summary court the maximum penalty is a fine not exceeding $5,000 or imprisonment of up to 4 years or both: s 34(2)(b) Misuse of Drugs Act.

26 It has been held that a term of immediate imprisonment is generally the only appropriate sentencing option for those who deal in serious drugs. However, this does not relieve a sentencing judge from the obligation to consider whether it is appropriate to use a less severe sentencing option: Coleski v The State of Western Australia [2008] WASCA 260 [16] (Steytler P). In that same decision Steytler P referred to a number of cases where suspended periods of imprisonment were imposed. See [18] [24]. These cases included a number where the offender possessed amounts of methylamphetamine of a comparable quality and purity to that possessed by the appellant. However, it does not follow that suspended sentences of imprisonment will always be appropriate in such cases. Personal factors may be significant in persuading a court that a suspended sentence is appropriate.

27 In Tran v The State of Western Australia [2010] WASCA 38 it was accepted that the customary range of sentencing for offences involving possession of methamphetamine with intent to sell or supply involving quantities of between 3 and 65 grams was between 2 and 4 years' imprisonment. However, it was recognised that the amount of methylamphetamine involved was not the only factor. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing and whether the offending was committed solely for commercial gain: [24], [26] [27] (Newnes JA). See also The State of Western Australia v Reid [2012] WASCA 109; Lynch v The State of Western Australia [2011] WASCA 243 and Haasy v The State of Western Australia [2010] WASCA 207.

28 In the present case, given the quantity of drugs involved, being 3.51 grams, and that the appellant was to be sentenced on the basis that her possession was for the purpose of personal use and sharing with friends, any sentence of imprisonment would be expected to fall at the low end of the range referred to in Tran. The sentence of 30 months' imprisonment was very much higher than any sentence properly open for the offending in this case.

29 As regards the seriousness of the circumstances of the offence, I have already referred to the factual findings made by the magistrate. Whilst an intention to provide drugs to friends should not be viewed as being benign, it is clearly less serious than the conduct of a person engaged in dealing on a commercial basis. The sentence imposed was not commensurate with the nature of the offending as found by the magistrate.

30 As to the appellant's personal circumstances, the information before the magistrate was that the appellant was a single mother of three children aged between three and nine. She had intermittently used amphetamines, in particular when she had previously lived in Geraldton. She had moved from Geraldton with her family in order to avoid contact with negative associates. She had been largely successful in avoiding the use of drugs for some years. However, shortly before her arrest her relationship with the father of her two younger children had broken down. The stress associated with this had caused the appellant to again resort to drug use.

31 The appellant had the support of her parents, who lived close to her in Capel. A number of favourable character references were tendered to the magistrate. It was submitted that she had concealed her drug use from others in her local community. The drugs that were found in her possession on her arrest were said to have been purchased relatively recently and she had not expected to receive the quantity that she did.

32 The appellant had a limited prior criminal record. It included four previous offences of possessing a prohibited drug, one of which was with intent to sell or supply. On 28 May 2003 she had been dealt with in the Geraldton Court of Petty Sessions on three of these charges and received a 9 month community based order on each of them. The fourth possession charge was dealt with in the Geraldton Magistrates Court on 27 July 2006 and resulted in a fine of $400. The only other criminal offence was a breach of a violence restraining order for which the appellant received a 6 month conditional release order on 2 February 2012.

33 The prior offending was consistent with the submission that the appellant had been an intermittent drug user. The penalties imposed for the past offences were consistent with the amounts involved being small. The fact that an offender has committed offences of a similar nature in the past does not aggravate the present offence: s 7 Sentencing Act 1995 (WA). It may be relevant in that the offender cannot claim past good character and because it may reveal a persistent defiance of the law. In this case the past record was comparatively minor.

34 The appellant had pleaded guilty at a relatively early stage and that plea was deserving of a significant discount on any sentence imposed. The value of the plea was not diminished by the dispute as to the facts bearing in mind that the dispute was ultimately resolved in a way that was favourable to the appellant.

35 Having regard to all relevant factors, the sentence of 30 months' imprisonment imposed for the possession offence was manifestly excessive. In those circumstances, I also granted leave in respect of ground 2.

36 This ground asserts that the sentence of 4 months' imprisonment imposed with respect to the breach of the data access order was manifestly excessive. That sentence was made concurrent.

37 The maximum penalty for an offence contrary to s 61(2) of the Criminal Investigation Act is 5 years' imprisonment if convicted on indictment. On summary conviction the maximum penalty is a fine of $24,000 or 2 years' imprisonment. No comparable cases were referred to me on the hearing of the appeal.

38 As to the seriousness of offences of this type, it is clear that the offence provision is intended to address circumstances where a police investigation would be hindered unless information to enable access to electronic data was provided. It is an offence to fail to comply without reasonable excuse (the onus of proving which is on the person). It is not a defence that the information to be given would or may incriminate the accused.

39 The factors that may be relevant in sentencing for such an offence include the following:

(1) the significance of the information to the police investigation;

(2) whether the information was readily available to the person served with the notice;

(4) the reasons that the person gave for noncompliance;

(5) the effect that noncompliance had on the police investigation; and

(6) the importance of imposing a penalty that acts as a deterrent and overcomes the reluctance that the person and others may have to cooperate with the police.

40 In the present case the appellant was given an opportunity to voluntarily provide the information at the time of her arrest. When she declined she was served with a data access notice. She refused to comply with the notice at the time it was served and subsequently. It was only when she was charged on 17 December 2012 that she provided a pin number. However, that pin number, for reasons that are unclear, did not enable police to access the phone.

41 It can be inferred from the reason that the appellant gave for noncompliance, namely that she did not want to get others into trouble, that she believed it to contain information that would be of assistance to the police in identifying others who had been involved in the supply of drugs to her. She did not express any fear for her personal safety. Her refusal was a deliberate and considered one. There must have been an awareness that a failure to provide access to the phone may hinder a police investigation.

42 Even assuming that the appellant ultimately gave the correct pin number on 17 December 2012, that cooperation only occurred in circumstances when she was charged with an offence. It was suggested that the police could have accessed information regarding telephone calls made to or from the telephone from the service provider. Whether or not this is so is not known. In any event, that information may not have included the content of any text messages. Furthermore, in any police investigation timeliness will often be significant. The lapse of time between when the notice was served on 11 October 2012 and when the appellant provided a pin number on 17 December 2012 was lengthy and may well have rendered any information contained on the mobile phone of lesser value.

43 I am unable to conclude that the sentence of 4 months' imprisonment for the failure to comply with the data access order was manifestly excessive. Sentences of 6 months' imprisonment or less are prohibited by the Sentencing Act. However, for reasons which I will state later, I have concluded that on a resentencing the appellant should receive a sentence of imprisonment to be served for the possession offence. In those circumstances, the sentence for the data access order should stand.

44 This ground asserts that the magistrate erred in finding that the possession offence was so serious that a suspended sentence of imprisonment was not appropriate. Given that the appeal was allowed on ground 1 it was unnecessary to determine this ground. I note, however, that whether a sentence of imprisonment should be suspended will depend significantly upon the weight which a sentencing court gives to the various relevant factors. It is usually difficult to establish that whilst a sentence of imprisonment was open an error occurred in not suspending it. In my view, this ground did not have a reasonable prospect of success.

45 On the hearing of this appeal leave to appeal was granted on grounds 1 and 2 and refused on grounds 3 and 4. The appeal was allowed in respect of the sentence of 30 months' imprisonment for the possession charge and that sentence was set aside.

46 I then resentenced the appellant to a term of 9 months' imprisonment. The sentence of 4 months' imprisonment concurrent on the breach of data access order offence was unaffected. In concluding that the appropriate sentence was one of 9 months' imprisonment I took into account the nature of the offending. The factors relevant in that regard were the amount of drugs involved, the purity of those drugs and the admission by the appellant that she intended to supply some of the drugs to her friends. I also took into account that the appellant entered a relatively early plea of guilty and had a number of prior offences for possession of prohibited drugs.

47 As regards the appellant's personal circumstances, I took into account that she was a single mother of three children. However, as at the date of the hearing of the appeal those children were all in the custody of family members and there was no suggestion that they were not being well cared for. She was also pregnant, but there was no indications of any difficulty with pregnancy and she will be released before her due date.

48 Personal and general deterrence are factors which are of particular significance in respect of drug offences. Whilst there were some factors which might be said to favour a suspended sentence I was not ultimately persuaded that such a sentence was an appropriate reflection of the seriousness of the offending.

(4) appeal against the sentence of 30 months on charge BU 125630/12 allowed;

(6) in lieu thereof the appellant be sentenced to 9 months' imprisonment backdated to commence on 11 April 2013.