THE STATE OF WESTERN AUSTRALIA -v- DELANEY [2020] WASCA 93 (15 June 2020)

(1) 1.44 g of methylamphetamine in a medium clipseal bag;

(2) 11.6 g of methylamphetamine wrapped in gladwrap (78% purity); and

(3) 25.2 g of methylamphetamine in a smaller clipseal bag (77% purity).

1. Police also located a fake Bundaberg rum can in the laundry, containing 5.77 g of methylamphetamine (77% purity). Later they found a blue food storage container buried in the back yard, in which there was a total of 67.5 g of methylamphetamine in three clipseal bags. Two of the bags contained 27.8 g, and the third contained 11.8 g of methylamphetamine (ranging from 70 - 75% purity).
2. The total amount of methylamphetamine seized from the respondent's residence was 111.51 g.
3. Also located during the search were a tick list, several sets of electronic scales, smoking implements, and numerous empty clipseal bags. The respondent also had numerous weapons throughout the house, including three gel blasters, two extendable batons and a flick-knife located on his bedside table. The respondent also had CCTV cameras at his house, with a large television screen set up in the main bedroom showing the CCTV footage. Text messages on the respondent's mobile phone also indicated he was buying methylamphetamine.
4. At sentencing, there was no dispute that the respondent was selling methylamphetamine to a small group of eight people whose names were contained on a tick list.[1] The respondent's counsel submitted,[2] and the sentencing judge accepted,[3] that he was selling drugs with the primary motivation of gaining some sort of financial independence to provide for his 10-year-old daughter. Counsel for the respondent also submitted that the respondent had a significant methylamphetamine habit himself and was using methylamphetamine valued at $600 - 700 per day.[4] The sentencing judge characterised the respondent's role as that of a user-dealer engaged in selling drugs for profit.[5]

1. The respondent was 34 years old at the time of sentence. He was born in Perth and raised by his mother until the age of 14 years, when he was sent to live with his father in Geraldton. His father, who was a heroin dealer, was killed when the respondent was 18 years old, which was a traumatic experience for him. At the time of sentence, the respondent had no contact with his mother and limited contact with his siblings. The respondent was in a de facto relationship and shared custody of his 10-year-old daughter with his former partner.
2. Since leaving school, where he was an average student, the respondent had worked in various positions in labouring, truck-driving, fishing and retail. He had not worked full-time since being incarcerated in 2015.
3. The respondent has a history of methylamphetamine addiction since he was 20 years old. The sentencing judge found that the respondent had struggled with addiction for a long time, and had relapsed into drug use on his last release from prison.[6]
4. The respondent has a significant criminal record mainly for drug, driving and weapons offences, with persistent offending particularly from 2014 - 2018. In 2016, he received a total effective sentence of 18 months' immediate imprisonment for various offences. In 2015, he received a total effective sentence of 6 months' immediate imprisonment for various offences. The respondent had one previous conviction under s 6(1)(a) of the Misuse of Drugs Act in 2015, although it involved only 1 g of methylamphetamine.

1. The sentencing judge was influenced by his Honour's assessment as to the respondent's prospects of rehabilitation. Below we note the material before his Honour going to that issue.
2. The pre-sentence report expressed the view that:

[The respondent] presents with limited risk reduction strategies, outstanding treatment needs, and a tendency to relapse quickly to drug use and offending behaviour. Given this, coupled with his mixed response to previous community dispositions he is not considered a suitable candidate for community based dispositions at this time.

The reporter expressed the view that the respondent would be a suitable candidate for parole eligibility 'should he address outstanding treatment needs within the custodial setting'.

1. The respondent wrote the following letter to the sentencing judge:

To the presiding judge,

I am not going to carry on about how my bad childhood and up bringing led me to where I am today because I know it was my bad choices that led me here and don't intend making them again.

I take full responsibility for my actions and realise that taking the easy way out only destroys my life and has a negative impact on the community and others around me.

Whilst in prison I want to take full advantage of the education system to better my life [upon] release.

I have never really known what to do with my life or what I wanted to become until now.

I want to do my [certificate 3 and certificate 4 in community services].

I want to work in the community and the prison and become a counciler. I believe I have had enough life experience to help guide other people away from a life of drugs and steer them on the correct path.

I am excited to now know what/who I want to be and do and know I can create a better life for me and my daughter.

Thankyou for your time.

1. The respondent's sentencing counsel made the following submissions in relation to his prospects for rehabilitation:[7]

[The respondent] has a clear path now, even if it's situational, even if it's the case that he has now been caught and he finds himself in the fluoro lights before your Honour today. He has a clear role in regards to where he wants to go. He's taken positive steps.

So what I invite your Honour to find is that [the respondent], when he comes out of prison, will be better placed to avoid future offending.

And I say that, your Honour, because he has taken some steps to [commence] his cert III and cert IV in Community Services. He has addressed your Honour in that regard in that letter.

Now, he's chosen that path, your Honour, and I've spoken to him at length and I spoke to him this morning about it as well, and I spoke to [the respondent] at length in relation to his criminal record and I asked him what his future was and he said, 'Well, look, my criminal record's going to get in the way of job aspects moving forward.' But he has identified that he has walked the path of someone who hasn't lived a life with criminal ideologies.

He accepts the offending. He pleaded guilty at the first available opportunity but he seeks to give back to the community; study wise in prison, give back to the community and prevent people from doing the same thing.

He wants to rely - he intends to rely on his time in custody, his family environment and all the other things that he's learnt along the way in regards to perhaps inappropriately living a criminal - a life with criminal ideologies but he wants to put that behind him.

He's got a 10-year-old daughter. When he's released from prison, she'll be older. She'll need her father as daughters do, and he wants to be there for her. He's had enough, obviously. He's drawn a line in the sand. And I've spoken at length to [the respondent] about this.

1. The prosecutor did not say anything about the above matters in his submissions, but emphasised that the major sentencing considerations are general and specific deterrence and that the maximum penalty for the offence had recently been increased to life imprisonment.[8]

1. Before his Honour commenced his formal sentencing remarks, the sentencing judge had the following exchange with the respondent:[9]

QUAIL DCJ: All right, Mr Delaney, I'm going to explain to you and the community the reason for my sentence. I think in this letter you've written to me, you've been completely straight with me. I'm going to be completely straight with you. All right. You're going to go to gaol but it's going to be less than what I thought when I walked in the door and before I had read your letter, because I hope, like [your counsel] has said, that this is a turning point for you. Whether it is not or whether you're just very good at pulling the wool over my eyes, only you know. I suspect ... it's true. ... I hope it's right because this is, in a sense, your ...last chance. I hope you do these courses, you finish these courses, you're going to have enough time in gaol to finish all the courses and you can get out then and you can go and be what you want to be, which is a good dad to your daughter. And I suspect, in fact - although on the one hand you've also been a pretty active drug dealer - that you've already been a good dad to her. Well, in a real sense she's the one who's been sentenced along with you because she's not going to have you around for the next ... while that you're in custody. All right.

But it seems to me you've resolved that you now know what you want to do with your life.

ACCUSED: That's correct.

QUAIL DCJ: You want to do these things, get qualified. Given the life you've had, what you say you want to do in terms of counselling, that sort of thing, will be of enormous benefit. And it's up to you. You get out. We might - I hope we will never see you again in the courts and that you can still do a lot of positive things in the community.

ACCUSED: Doubly so.

QUAIL DCJ: Both for other people and for your daughter.

ACCUSED: Yep.

QUAIL DCJ: But if you don't and you come back again with methamphetamine we'll throw away the key, understood?

ACCUSED: Understood.

1. The sentencing judge then began his more formal sentencing remarks, referring to the circumstances of the offending, the respondent's personal circumstances, the respondent's letter to the court and his criminal record. His Honour observed that:[10]

It is obviously going to be difficult for you to get employment again because of that record but you clearly have the ability to work and I would've thought that even working back in ports or fishing or something like that if counselling doesn't work out for you, are still options that are open to you.

Now you've had a methylamphetamine addiction since you were 20 and it has been on and off. ... I'm not going to go through your whole record but it's apparent to me you struggled with that addiction for a long time and you relapsed upon your release as you've relapsed in the past, back enmeshed in that lifestyle, dealing with those people - probably people you've known for a long time. It almost follows but I hope you've got the strength this time to break away from that and realise that although you want to - you're focused on doing your education in the prison, improving your qualifications. It would be a good idea or you nonetheless to do some drug counselling within the prison system.

ACCUSED: Yeah.

QUAIL DCJ: Simply to give you strategies and tools for when you get out about how to avoid making the same mistakes again. All right. I know you've got the resolve but you nonetheless will need some assistance in terms of strategies.

1. The sentencing judge indicated that he would give the maximum available discount of 25% under s 9AA of the Sentencing Act 1995 (WA) for the respondent's fast-track plea of guilty. The sentencing judge also observed:[11]

I wasn't sure before I walked in this morning that you were remorseful but in fact that letter has persuaded me you are both remorseful and insightful and that's caused me to discount the sentence, as I said a moment ago. And I'm satisfied that you've started steps in terms of rehabilitation by enrolment in your certificate III and certificate IV and you've got a clear plan for the future which you haven't had before....

1. The sentencing judge then imposed the sentences referred to above, noting:[12]

That is a fair bit less than I was going to originally impose, particularly given there's a life penalty but I do think that you've turned the corner, all right.

1. The State's sole ground of appeal is that the sentence of 3 years 2 months' imprisonment was manifestly inadequate. The general principles governing appeals contending that a sentence is manifestly excessive or manifestly inadequate are well established:

(1) A ground of appeal which alleges that a sentence is manifestly excessive or inadequate asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive or inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

(2) The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate that the sentence imposed is unreasonable or plainly unjust.

(3) The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

(4) A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive or inadequate. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.

(5) When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

1. The maximum penalty for an offence against s 6(1)(a) of the Misuse of Drugs Act involving a trafficable quantity of methylamphetamine is imprisonment for life.[13] A trafficable quantity of methylamphetamine is 28 g.[14] The amount in the possession of the respondent was about four times the trafficable quantity.
2. The maximum penalty for possession of 28 g or more of methylamphetamine was increased from 25 years to life imprisonment on 18 September 2017.[15] As this court has recently noted, when Parliament increases the maximum penalty for an offence, Parliament's new view of the gravity of the offence must be taken into account in deciding upon sentencing outcomes. An increase in the maximum penalty for the offence is an indication that sentences for that offence should be increased.[16] However, as the court observed in Musulin:[17]

Generally speaking, sentences for offences of the kind for which the maximum penalty has been increased can be expected to increase over time in light of the increase in the maximum penalty. However, the increase in the maximum penalty does not necessarily mean that in every case there will be a discernible increase in the penalty imposed. That is because the penalty imposed in an individual case will depend not only on the maximum penalty, but on all of the relevant facts, matters personal to the individual offender, and all relevant sentencing considerations.

1. The general principles of sentencing offenders for serious drug offences are well established.[18] The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will invariably be subsidiary considerations, but they are not irrelevant.
2. In Carlucci v The State of Western Australia,[19] a case decided before the increase in the maximum penalty, this court noted a number of cases involving sentences of 5 - 7 years' imprisonment imposed on persons engaged in a commercial drug business which involved dealing in ounces rather than kilograms. In Carlucci itself the offender had been sentenced to individual sentences of:

(1) 3 years' immediate imprisonment (reduced from 4 years 6 months' for totality) in respect of possession of 108.7 g of methylamphetamine with intent to sell or supply; and

(2) 5 years' immediate imprisonment in respect of possession of 123.9 g of methylamphetamine with intent to sell or supply.

The second offence was committed while the offender was on bail for matters including the first offence. The 38-year-old offender, who had a traumatic history and much better antecedents than the respondent, pleaded guilty and received a 15% discount. This court did not interfere with the individual sentences in reducing the total effective sentence from 8 years' to 6 years 6 months' imprisonment.

1. The State refers to a number of other cases, also decided before the increase in the maximum penalty, where sentences of between 4 - 6 years' imprisonment were imposed in respect of offences involving similar or lesser quantities of methylamphetamine to that in the present case.[20] While there are a number of similar and distinguishing features of those cases, the present sentence was significantly less than the range of sentences imposed in those cases.
2. One of those decisions which bears some similarity to the present case is Hunter. In that case, the offender was convicted of possession of 110.9 g of methylamphetamine split into four approximately one ounce bags with a purity of between 42 - 53%. The drugs were found in the offender's bedroom with other indicia of drug dealing. The offender was continuing the drug-dealing business of her partner, who had been imprisoned. The 42-year-old offender had a difficult background, a significant record of drug and property offences, and had a history of drug addiction from her mid-20s. She was described as being at the 'pre-contemplative stage' in respect of her motivation to change. The offender did not plead guilty and was convicted after trial. A sentence of 3 years 8 months' immediate imprisonment for the methylamphetamine offence was held to be manifestly inadequate, and a sentence of 5 years 6 months' imprisonment was substituted.
3. The above cases were all concerned with offences committed before the increase in the maximum penalty to life imprisonment. Two decisions concerned with offences to which the maximum penalty applies may also be noted.
4. In Musulin, the offender pleaded guilty to possessing 178.2 g of methylamphetamine with a purity between 68 - 82%, found in his bedroom along with other indicia of drug dealing. The 36-year-old offender had a good employment history, a lengthy criminal record, and a history of drug use. He attributed the offences to a desire to repay a considerable drug debt. The offending occurred shortly after the offender's release on parole for other serious drug offences. The offender, who was remorseful, received a 25% discount for a plea of guilty at the earliest reasonable opportunity. This court upheld a sentence of 7 years' imprisonment for the methylamphetamine offence.
5. In McConnell v The State of Western Australia,[21] the offender pleaded guilty to offences which included possession of 60.94 g of methylamphetamine with intent to sell or supply to another. The drugs were found in a vehicle in which the offender was a passenger. The offender was a user/dealer who had arranged the purchase of the drugs and was participating for commercial gain. The offending occurred while the offender was subject to a pre-sentence order. He pleaded guilty and received a 15% discount. The 29-year-old offender had a history of drug addiction and a significant criminal history which included a non-commercial supply offence. The appeal was allowed on parity grounds, and the offender was resentenced to 4 years 8 months' immediate imprisonment, which this court considered to be within the range of appropriate sentences (albeit towards the lower end).[22]
6. The sentence of 3 years 2 months' imprisonment imposed on the respondent in the present case appears to be significantly outside the range of sentences customarily imposed or upheld by this court for broadly similar offending, even before the increase in the maximum penalty.

1. The respondent was the principal offender conducting a drug dealing business for profit. He was in possession of 111.51 g of methylamphetamine, approximately four times the trafficable quantity. The offending was not fleeting or unplanned, but involved steps to secrete the drugs and establish surveillance of the premises from which business was conducted. The offence was a relatively serious example of its type.

1. The respondent did not have the mitigating factors of youth or prior good character in his favour. Prior periods of imprisonment did not deter the respondent from returning to drug use and offending after his release. The principal mitigating factors were his early plea of guilty, his remorse and insight into his offending and a genuine desire to take concrete steps towards his rehabilitation.
2. The respondent's desire to undertake courses, obtain employment and turn around his life are laudable. His statements of intention and motivation to reform were accepted by the sentencing judge as genuine, and the State does not challenge that factual finding by any ground of appeal. However, at the point of sentence, no demonstrated steps towards rehabilitation (whether by undertaking treatment programs, education programs or otherwise) had been shown. The prospects of rehabilitation were based on the respondent's aspirational statements as to his future conduct. The challenges facing the respondent, in terms of obtaining employment and overcoming his methylamphetamine addiction, are very significant. Those aspirational statements do not make this an exceptional case. It is far from unusual for an offender in the respondent's position to make declarations of an intention to abstain from drug use and live a law abiding life while on remand awaiting sentence for a serious offence. Frequently, the statements are genuine at the time they are made. But the offender's resolve will be tested when he or she is released and must face the temptation of relapsing into drug use.

1. The respondent committed a serious drug offence. The sentence he received was significantly below the range of sentences customarily imposed for this kind of offending, even prior to the increase of the maximum penalty to life imprisonment. The respondent had a significant criminal history, and it remains to be seen whether, and to what extent, his stated desire to rehabilitate himself will be successful.
2. The sentencing judge recognised that he was imposing a sentence below that which would ordinarily be appropriate for offending of this kind. His Honour did so because of his view that it would facilitate the respondent's rehabilitation.
3. The courts have recognised the capacity of a sentencing judge to impose a sentence which may be characterised as merciful or lenient in an appropriate case, for the benefit of the community, where demonstrable steps towards rehabilitation have been taken, even in drug cases.[23] However, in this case there was little more than a statement of the steps which the respondent intended to take in the future. The respondent's letter indicated his genuine remorse and insight into his offending, and a plan to turn his life around. This is a mitigating factor which is to be taken into account in determining the sentence which is commensurate with the seriousness of the respondent's offending. But there is nothing exceptional about the respondent's personal circumstances which, while not wholly irrelevant, remain a subsidiary consideration in the sentencing process for a serious drug offence. It is well established that, even where an offender's prospects of rehabilitation are good, the principal sentencing considerations in such cases are appropriate punishment and general deterrence.[24]
4. Having regard to all of the circumstances of this case, and all relevant sentencing considerations, in our view the sentence of 3 years 2 months' immediate imprisonment imposed for the drug offence was unreasonable and plainly unjust. We accept the State's submissions that the sentence was manifestly inadequate.

1. There is no suggestion in the present case that there is any basis for this court to exercise its residual discretion to nevertheless dismiss the appeal, once manifest inadequacy is established.

1. Implied error having been established, it is necessary for this court (which has the necessary material) to resentence the respondent.
2. The circumstances of the offending, and the respondent's personal circumstances, are noted above. The offence was a relatively serious example of its type. However, there are mitigating factors, the most significant of which is the respondent's plea of guilty at the earliest reasonable opportunity. Like the sentencing judge, we would allow a discount of 25% under s 9AA of the Sentencing Act. Account must also be taken of the respondent's genuine remorse, acceptance of responsibility, and plans for rehabilitation. His background, being raised by a father who was engaged in dealing drugs and the unlawful killing of his father when the respondent was a teenager, also has a mitigating effect.
3. Since his sentencing, the respondent has been employed in the prison kitchen, has been of good behaviour, has enrolled in the 'Addictions Offending Pathways Program' in the second quarter of this year and maintains a desire to complete further study in the future.
4. In all the circumstances, in our view a sentence of 4 years 9 months' immediate imprisonment is commensurate with the seriousness of the drug offence.
5. There is no complaint about the concurrent sentence of 10 months' immediate imprisonment for the unlawful possession offence, involving the possession of $1,750 in cash. We would not interfere with the sentence for that individual offence or the order that it be served concurrently with the sentence for the drug offence.
6. The appropriate total effective sentence is therefore 4 years 9 months' immediate imprisonment. The respondent should remain eligible for parole, and the sentences backdated to 12 August 2019, in order to take account of time spent in custody on remand.

1. For the above reasons, we would make the following orders:

(2) The sentences imposed on District Court indictment GER IND 59 of 2019 are set aside and the following sentences substituted:

(a) On count 1, 4 years 9 months' immediate imprisonment.

(b) On count 2, 10 months' immediate imprisonment, to be served concurrently with the sentence on count 1.

(4) The sentences referred to in order 2 are taken to have begun on 12 August 2019.

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

[13] Section 34(1)(a) of the Misuse of Drugs Act.

[14] Section 34(1A) of the Misuse of Drugs Act, read with schedule VII item 8.

[15] Section 7(2)(a) of the Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017 (WA).

[16] HSV v The State of Western Australia [2020] WASCA 5 [41] - [45]; Musulin v The State of Western Australia [2020] WASCA 18 [35] - [41].

[18] See, for example, Jneid v The State of Western Australia [2018] WASCA 67 [81].

[19] Carlucci v The State of Western Australia [2019] WASCA 37 [39] - [42].

[20] Nguyen v The State of Western Australia [2018] WASCA 162; Leckie v The State of Western Australia [2018] WASCA 91; Lenton v The State of Western Australia [2017] WASCA 224; The State of Western Australia v Charles [2016] WASCA 108; Zheng v The State of Western Australia [2016] WASCA 224; Jenkin v The State of Western Australia [2014] WASCA 226; Stoysich v The State of Western Australia [2014] WASCA 208; Bui v The State of Western Australia [2014] WASCA 168; The State of Western Australia v Hunter [2014] WASCA 87.

[21] McConnell v The State of Western Australia [2020] WASCA 59.

[23] The State of Western Australia v Egeland [2018] WASCA 228; (2018) 276 A Crim R 77 [176] - [177], citing The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363 [44] - [46].

[24] The State of Western Australia v Littlefair [2013] WASCA 177 [37].