Court of Appeal (WA)|2007-11-07|Before: Steytler P, Lure JA, Miller JA

SWAINS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 251 (7 November 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SWAINS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 251

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Possession of methylamphetamine with intent to sell or supply - Two other less serious offences - Whether conditional suspended imprisonment should have been imposed

1 STEYTLER P: The appellant was convicted on three charges in the District Court on 17 April 2007. He pleaded guilty to all three of them. The first of those charges was one of possession of methylamphetamine with intent to sell or supply. The second was one of possession of cannabis with intent to sell or supply. The third was one of receiving a stolen LCD monitor valued at $600. The quantity of methylamphetamine the subject of the first charge was 8.071 g. It had a purity of around 25%. The quantity of cannabis the subject of the second charge was 63 g.

2 The drugs and the stolen property were found during a search of the appellant's home. At the same time police found cash and drug paraphernalia. These indicated that the appellant was engaged in the sale of methylamphetamine from his home.

3 The appellant was sentenced to a total term of 21 months' imprisonment. He appeals against the sentence imposed.

4 At the time of sentencing the appellant was 45 years old. He had three daughters from a long term stable relationship. He had been diagnosed with post traumatic stress disorder as a result of a traffic accident in 1999. He was a drug user. He sold drugs to finance his habit. The sentencing judge accepted that, while drug dealing was an ongoing practice of the appellant, he was not engaged in it in a very significant manner. The appellant had expressed a willingness to address his substance abuse and psychological issues, although a pre sentence report that was prepared in respect of him suggested that he had demonstrated only limited insight into his actions.

5 After taking into account the plea of guilty, the maximum penalty for the offence of possession of methylamphetamine with intent to sell or supply (being a term of 25 years' imprisonment) and the matters in mitigation, including the plea of guilty and the appellant's cooperation with the police, the sentencing judge imposed a term of 18 months' imprisonment in relation to the methylamphetamine offence. He imposed terms of 3 months' imprisonment in respect of each of the other counts. The sentence imposed in respect of the cannabis offence was ordered to be served concurrently with the term imposed in respect of the methylamphetamine offence. The term imposed in respect of the offence of receiving stolen property, for which the appellant had prior convictions, was ordered to be served cumulatively upon the other terms. He was made eligible for parole.

6 There is one ground of appeal. As it has been amended this morning, it is to the effect that the sentencing judge erred in that the sentence of immediate imprisonment was manifestly excessive, having regard to:

(b) the appellant's plea of guilty and generally favourable antecedents; and

7 The principal contention advanced on behalf of the appellant is that a sentence of conditional suspended imprisonment should have been imposed. Imprisonment of that kind is empowered by pt 12 of the Sentencing Act 1995 (WA). A person sentenced to a term of conditional suspended imprisonment is subject to obligations provided for by s 83 of the Act. Such a person is also required to undergo one or more of a programme requirement, a supervision requirement or a curfew requirement. These are respectively provided for by s 84A, s 84B and s 84C of the Act.

8 Counsel for the appellant has referred us to the second reading speech delivered by the Attorney General at the time of the introduction of the Sentencing Legislation Amendment Bill 2004 (WA), in the course of which the Attorney General said that the effect of an order of this kind is primarily to divert offenders from prison and that this supports the government's policy to reduce the rate and cost of imprisonment, while at the same time helping to reduce recidivism by assisting offenders to break the cycle of drug use and subsequent re-offending (Western Australia, Parliamentary Debates, Legislative Assembly, 1 July 2004, 4761). Counsel also referred us to the explanatory memorandum which accompanied the Bill and which notes that the new s 84A sets out the purpose of a programme requirement as being to address any personal factors that contribute to the offender's criminal behaviour and to provide an opportunity for the offender to address these factors.

9 It is plain that the legislature regards conditional suspended imprisonment as a more severe sentencing option than ordinary suspended imprisonment. It is sufficient to refer to s 39 of the Sentencing Act in that respect. Section 39(3) of the Act provides that a court must not use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before that option. Suspended imprisonment is listed before conditional suspended imprisonment in s 39(2).

10 In the course of his submissions to the sentencing judge the appellant's then counsel submitted that a conditional suspended term of imprisonment was an appropriate sentencing disposition. He said that the appellant clearly needed counselling to deal with his drug problems and his post-traumatic stress disorder. He said that he was able to do community service work. However, the trial judge considered that only immediate imprisonment was an appropriate disposition.

11 The fact that a term of immediate imprisonment is generally the only appropriate sentencing option for those who deal in serious drugs does not relieve the sentencing judge of the obligation to consider whether it is appropriate to use a less severe sentencing option: Collins v The State of Western Australia [2007] WASCA 108 [21]. In this case the sentencing judge acknowledged that the court was directed not to impose a term of immediate imprisonment unless the seriousness of the offending behaviour and/or the protection of the community made imprisonment imperative. He went on to say that this type of behaviour, because of its consequence to the community, is generally appropriately dealt with by way of a term of immediate imprisonment. He said that the question for him was whether it was the appropriate disposition in this case. Then, having reflected on the matters in mitigation, he said that he was still of the view that a term of immediate imprisonment was the only disposition that responded appropriately to the criminality of the appellant. In my opinion the sentencing judge made no error in that respect.

12 In The State of Western Australia v Andela [2006] WASCA 77 [16] - [17] McLure JA, with whom the other members of the court agreed, said that, save in exceptional cases, courts impose terms of immediate imprisonment for drug trafficking. A review of the cases demonstrates that a sentence of 18 months' imprisonment for possession of 8.071 g of methylamphetamine with a purity of 25%, with intent to sell or supply, is well within the appropriate sentencing range for offences involving that quantity of drugs: see Bosworth v The State of Western Australia [2007] WASCA 144 [41] and the cases there referred to; Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246; Pepper v The State of Western Australia [2005] WASCA 177; (2005) 30 WAR 447.

13 Counsel for the appellant points out that because pt 12 of the Sentencing Act only became operational in May 2006, conditional suspended imprisonment was not an available sentencing option prior to that date. Allowing for this, there is nothing in any of the cases to which we have been referred, or to which I have had regard, that supports the

proposition that a suspended sentence of imprisonment, whether conditional or otherwise, is appropriate in a case such as the present.

14 Dealing in serious drugs, whether to feed a habit or otherwise, is a serious offence. There is nothing in this case to take it out of the ordinary range. While the appellant, who is a user/dealer, reported to the author of the pre-sentence report that he had turned to amphetamine use to cope with his post-traumatic stress disorder for which he has been undergoing counselling, he also acknowledged that he had commenced amphetamine use prior to the accident. In those circumstances it seems to me to be difficult to ascribe his use of drugs to his disorder and more particularly to ascribe his sale of methylamphetamine to that disorder. While his criminal record is less than that of many who come before this court that too, even when taken together with all of the other mitigating factors, is not enough to take the matter out of the ordinary.

15 No error has consequently been shown and I would dismiss the appeal.

SWAINS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 251 (7 November 2007)

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SWAINS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 251 (7 November 2007)

SWAINS -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 251 (7 November 2007)

Cases Cited (2)