THE STATE OF WESTERN AUSTRALIA -v- EGELAND [2018] WASCA 228 | Case summary

THE STATE OF WESTERN AUSTRALIA -v- EGELAND [2018] WASCA 228 | Case summary | Zoe

[79]

This is a State appeal against the sentence imposed on the respondent for a drug dealing offence.
The respondent was charged on indictment with two counts.
Count 1 alleged that on 8 May 2016, at Denmark, the respondent was in possession of a thing capable of being stolen, namely a sum of money, that was reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) (the Code).
Count 2 alleged that on the same date and at the same place as in count 1, the respondent had in his possession a prohibited drug, namely MDMA, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
On 11 May 2018, after a trial before McCann DCJ and a jury, the respondent was convicted of count 2 and acquitted of count 1.
On 11 May 2018, after the jury had delivered their verdicts, the trial judge made numerous findings of fact generally and in relation to count 2. His Honour then ordered the preparation of a written pre-sentence report and a psychological report, and adjourned the sentencing proceedings to 1 August 2018.
On 1 August 2018, his Honour sentenced the respondent to 16 months' imprisonment, conditionally suspended for a period of 12 months.
The State appeals on two grounds. First, it alleges that the trial judge made an error of fact in finding that the respondent was 'deeply remorseful' for the offending. Secondly, it alleges that the sentence was manifestly inadequate in that the wrong type of sentence was imposed. The State does not challenge the length of the term of imprisonment.
On 12 October 2018, a majority of this court (Mazza and Mitchell JJA) ordered that leave to appeal be granted but that the appeal be dismissed, with reasons to be published later. I have a different view of the case. I would grant leave to appeal, allow the appeal, set aside the sentence imposed by his Honour, grant the respondent's application dated 5 September 2018 for leave to adduce additional evidence in the appeal, and resentence the respondent to 16 months' immediate imprisonment with eligibility for parole. These are my reasons.

[81]

On Sunday 8 May 2016, at about 3.30 pm, police were conducting random breath tests on the South Coast Highway in Denmark.
The respondent was a passenger in a motor vehicle being driven by his friend, Mr Diack. They were travelling from Bunbury, where they had attended a music festival, to Albany. Mr Diack was breath tested and returned a positive result. The police asked Mr Diack if there were any drugs in the vehicle. Mr Diack admitted that he had a small quantity of cannabis and a smoking implement. He gave those items to the police.
The police then searched the vehicle. They found a large blue and black backpack which belonged to the respondent. The backpack contained, amongst other things, a plastic shopping bag. In the shopping bag were 66 pink capsules wrapped in tissue paper. The capsules contained a brown powder which, on later analysis, was determined to be MDMA.
The total quantity of MDMA in the 66 capsules was 12.35 g. The purity of the MDMA ranged from 57% to 65%. If sold in one or two capsule quantities, the value of the drugs was about $1,650 (that is, about $25 per capsule). At the time of the offending, the average purity of MDMA sold in Western Australia ranged from about 20% to about 60%.
The plastic shopping bag in the respondent's blue and black backpack also contained perforated paper sheets with cartoon pictures of members of the Beatles. Each perforated paper sheet had been infused with the drug NBOMe.
The police arrested the respondent. He participated in an electronically recorded interview at the Albany police station. The respondent said that he had ingested a 'green square' he had found on the ground at the music festival. After ingesting the 'green square' he had very limited recall about what had happened at the festival. The police took the respondent to his house in Denmark where the police executed a search warrant. In the kitchen, the police found two empty vacuum sealed bags, a vacuum sealed bag of cannabis and a vacuum sealer machine. In the respondent's bedroom, the police found more perforated 'Beatles' paper sheets infused with the drug NBOMe, a set of electronic scales and two containers with empty pill capsules.
The police seized the respondent's mobile telephone. The telephone had a message from 'Rina', which asked the respondent for 'a tab or two if you still have some' and the respondent's reply with his address. However, in his evidence at the trial, the respondent denied selling or supplying any 'tabs' to Rina.
The critical issue at the trial was the respondent's intention. He admitted possession of the 66 MDMA capsules, but denied any intention to sell or supply them. The respondent gave evidence that he intended to keep the capsules and use them personally over the next month or so. It is apparent, however, from the jury's verdict of guilty on count 2, that they rejected the respondent's evidence as to his intention.

[149]

In the present case, I am satisfied that the trial judge erred in finding that the respondent was 'deeply remorseful'. The respondent's plea of not guilty, on the basis that he did not intend to sell or supply any of the MDMA capsules, and his continuing stance of denial in relation to that element of the offence after he was convicted, were inconsistent with the respondent being remorseful, let alone 'deeply remorseful', for his offending conduct. The respondent's efforts towards rehabilitation were commendable and were mitigatory regardless of his motivation for taking those steps. However, the respondent's rehabilitative steps were not, of themselves, indicative of remorse. His Honour appears to have conflated the respondent's efforts towards rehabilitation with remorse. The respondent's plea of not guilty and his continuing stance of denial in relation to his intention to sell or supply indicate that the respondent did not accept, or at least substantially accept, responsibility for his drug dealing offence, that he did not accept, or at least substantially accept, that his conduct was morally wrong, and that he was not sorry for the potential impact or consequences of his offending behaviour. I am satisfied that, when regard is had to the respondent's conduct as a whole both before and after he was convicted, it was not open to his Honour to infer, on the balance of probabilities, that the respondent was 'deeply remorseful'.
As Kirby J explained in Dinsdale v The Queen,[4] the imposition of a sentence involves the exercise of judgment and evaluation. It bears close similarities to the making of a discretionary decision. A sentence will not be set aside on appeal unless the appellate court identifies an error that justifies and authorises appellate intervention. An error of that kind may involve the adoption by the sentencing judge of a wrong principle, giving weight to an extraneous or irrelevant matter, failing to give weight to a material consideration, or a mistake as to the facts. See House v The King;[5] Cranssen v The King;[6] Harris v The Queen.[7]
This court can only intervene in a sentencing appeal if the sentencing judge made an express or implied material error of fact or law or if a miscarriage of justice has occurred. See R v Allpass;[8] R v Clarke;[9] LAT v The State of Western Australia.[10]
An error will be 'material' if, relevantly to the present appeal, the error is capable of affecting the actual sentence imposed by the sentencing judge. See Fernandes v The State of Western Australia;[11] Roberts v The State of Western Australia;[12] Harding v The State of Western Australia.[13]
An error is capable of affecting an actual sentence if, relevantly to the present appeal, the nature or degree of the error has the capacity to affect the sentencing judge's assessment of the seriousness of the offence having regard to the factors specified in s 6(2) of the Sentencing Act 1995 (WA) which the judge must take into account when sentencing the offender.
Errors of fact by a sentencing judge that have been held to be 'material' include, for example:

[152]

In Kentwell v The Queen,[15] French CJ, Hayne, Bell and Keane JJ explained that when a sentencing judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect the determination of the sentence, mistakes the facts or does not take into account some material consideration, the appellate court does not assess whether and to what degree the error influenced the outcome. In such a case, the sentencing judge's discretion has miscarried. It is the appellate court's duty to exercise the discretion afresh, subject to the applicable criminal appeals statute, the provisions of the applicable sentencing legislation and any other statute or rule of law, as required or permitted. Their Honours did not suggest that a sentencing judge's discretion will miscarry if the judge makes an 'immaterial' error of fact or law.
In the present case, his Honour's finding that the respondent was 'deeply remorseful' was not a finding of objective fact. For example, it was not an erroneous finding as to the weight or the purity of the drugs in question. Rather, his Honour made a finding, based on inference, as to the respondent's state of mind in relation to his offending conduct. As I have mentioned, it is well established that if an offender is genuinely remorseful, the remorse will usually be an important consideration in sentencing. When his Honour's impugned finding is considered in the context of a fair reading of his Honour's sentencing remarks as a whole, it is plain that his Honour regarded the respondent's 'deep remorse' as a mitigating factor of significance. I am satisfied that his Honour's erroneous finding that the respondent was 'deeply remorseful' was capable of affecting the actual sentence imposed by his Honour. In particular, the erroneous finding had the capacity to affect his Honour's evaluation of the weight to be accorded to the mitigating factors as a whole and his Honour's determination, as required by s 6(1) of the Sentencing Act, of a sentence that was commensurate with the seriousness of the offence. The error was therefore 'material' in the relevant sense. His Honour's discretion miscarried, irrespective of whether and to what extent the error actually influenced the outcome. See Kentwell [42].
Ground 1 of the appeal has been made out.
It is the duty of this court to exercise the sentencing discretion afresh. See Kentwell [42]. Generally for the reasons I give in relation to ground 2, I consider that a different sentence should have been imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA). The respondent should be resentenced to 16 months' immediate imprisonment with eligibility for parole.

[159]

A ground of appeal which alleges that a sentence is manifestly inadequate asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the 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.
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the respondent, it is necessary to have regard to a range of comparable cases. 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. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly inadequate. The mere fact 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 a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
The discretion conferred on sentencing judges is, of course, of fundamental importance. 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. See Lowndes v The Queen.[16]
At all material times, the maximum penalty for the offence of possessing MDMA, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, has been 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the MD Act.
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 almost always be subsidiary considerations, but they are not completely irrelevant.
MDMA is a harmful prohibited drug which has the same high level of seriousness as methylamphetamine, cocaine and heroin. See The State of Western Australia v Higgins;[17] Tirkot v The State of Western Australia.[18]
I have had regard to the sentencing dispositions in a range of cases including Vogel v The Queen;[19] Schlenka v The Queen;[20] Samuel v The State of Western Australia;[21] Pepper v The State of Western Australia;[22] Attenborough v The State of Western Australia;[23] Swains v The State of Western Australia;[24] Cartwright v The State of Western Australia;[25] Coleski v The State of Western Australia;[26] Crichton v The State of Western Australia [No 2];[27] Stewart v The State of Western Australia;[28] The State of Western Australia v Thompson;[29] Maric v The State of Western Australia;[30] The State of Western Australia v Baldini;[31] Fenton v The State of Western Australia;[32] Bailey v The State of Western Australia;[33] Truscott v The State of Western Australia;[34] Potaka v The State of Western Australia;[35] Leckie v The State of Western Australia;[36] Towler v The State of Western Australia;[37] Kirkup v The State of Western Australia;[38] Donaldson v The State of Western Australia;[39] Mrsa; and the cases cited in those decisions. I have also had regard to other cases cited by counsel for the State and counsel for the respondent.
By s 6(4) of the Sentencing Act:

[163]

Similarly, s 81(1) of the Sentencing Act provides that a prescribed court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months, subject to certain conditions. Section 81(2) provides that conditional suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
Section 4(4) of the Sentencing Act provides that, in the Act, a reference to the suspension of a term or terms of imprisonment is a reference to a suspension of the whole of the term or terms or part of the term or terms.
The limit of 5 years specified in s 76(1) and s 81(1) reflects Parliament's view that if an offender is sentenced to a term of imprisonment, or to an aggregate of terms of imprisonment, in excess of the specified limit, the offending will be of an order of seriousness which precludes suspension or conditional suspension.
The limit of 5 years also reflects Parliament's view that a term of imprisonment, or an aggregate of terms of imprisonment, may appropriately be suspended even though the offender has committed an offence or offences that are of sufficient seriousness as to warrant a sentence or total sentence of 5 years' imprisonment.
A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditional suspended imprisonment. See s 39(2) and s 39(3).
A sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia;[40] Fogg v The State of Western Australia.[41] The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale.[42] The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86].
The principles applicable to suspended sentences for serious drug offences were explained by McLure P (Owen & Wheeler JJA agreeing) in Cartwright [8] - [10] as follows:

[164]

Section 39(2) of the Sentencing Act 1995 (WA) (the Act) sets out the various sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Act a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term; the power to suspend is not confined by reference wholly, mainly or specially to the effect that suspension would have on the rehabilitation of a particular offender: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84], [85].

However, as noted in Collins v The State of Western Australia [2007] WASCA 108 [17], the sentencing discretion is not to be exercised in a vacuum. A sentencing judge must impose a type of sentence that falls within a sound discretionary range. The decisions of this court and its predecessor provide guidance to sentencing judges with the aim of achieving consistency in sentencing. This court has made it plain that generally, a term of immediate imprisonment is the only appropriate sentencing option for serious drug offences. The incentives, financial and otherwise, to participate in the illicit drug distribution network must be counterbalanced by a clear and certain understanding that such involvement will ordinarily result in a penalty of immediate imprisonment: The State of Western Australia v Saxild [2008] WASCA 156 [12]. Thus, the imposition of a sentence other than immediate imprisonment for such an offence is, as a matter of fact, exceptional: The State of Western Australia v Andela [2006] WASCA 77 [17]; Saxild [13].

However, even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge is not relieved of his or her obligation to determine the appropriate penalty in the particular case. In such circumstances the question for the sentencing judge is whether having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence: Collins [21].

[165]

So, ordinarily, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for a serious drug offence. In other words, the imposition of a suspended term of imprisonment is, as a matter of fact, exceptional. See The State of Western Australia v Johnson;[43] Truscott [20].
The fact that an offender deals in small quantities of a prohibited drug at street level does not bring an offender within the exceptional category. See Duong v The State of Western Australia;[44] Ness v The State of Western Australia [No 2];[45] Tran v The State of Western Australia;[46] Truscott.
As to the range of sentences where an offender has been convicted of possession of a relatively small quantity of a prohibited drug, with intent to sell or supply it to another, see, in particular, Ness; Apkarian v The State of Western Australia;[47] Fenton; Truscott and the cases cited in those decisions.
In the present case, the respondent's offending was serious. It involved possession, with intent to sell or supply, of 12.35 g of MDMA with a high degree of purity. The respondent was a dealer as well as a user of the drug. Although the trial judge found that the respondent's acquisition of the MDMA capsules was opportunistic and impulsive, by the time he was apprehended by the police the respondent had had plenty of time for reflection, he was not averse to selling or supplying at least some of the MDMA capsules and there was a probability that many of the capsules would be distributed to others. Also, although his Honour found that the respondent was unsophisticated and was not part of an organised drug dealing business, his offending was not out of character or an aberration. When the police searched the respondent's home, they located drug dealing paraphernalia. His Honour found that the respondent had a reputation as a person who had drugs available for others and that he was actively engaged in the social drug culture in various ways. The respondent was willing on occasion to sell some of his personal stock of drugs to friends. It was not suggested (and it could not reasonably have been suggested) that the respondent would have distributed the MDMA capsules, which he intended to supply, gratuitously to others. The only reasonable inference, consistent with his Honour's findings, is that the respondent would have supplied them for some modest monetary or other benefit.
The respondent was only to be punished for the offence in question. However, the fact that he had a history of low level drug dealing demonstrated that the current offence was not an isolated incident by a person who was otherwise of good character.
The respondent was entitled to proceed to trial, but he could not claim the mitigation that a plea of guilty would have brought.
As I have decided, in the context of ground 1, it was not open to the trial judge to find that the respondent was 'deeply remorseful' for his offending. Indeed, after his conviction, the respondent continued to deny any intention to sell or supply any of the MDMA capsules.
I accept that there were a number of mitigating factors to be found in the respondent's personal circumstances. In particular:

[174]

As I have mentioned, the imposition of a suspended term of imprisonment for a serious drug offence is, as a matter of fact, exceptional. The present case, having regard to all relevant facts and circumstances (notably, the quantity and purity of the MDMA, the offending not being isolated or an aberration, the absence of a plea of guilty, the continuing stance of denial in relation to the respondent's intention to sell or supply and the absence of genuine remorse) and all relevant sentencing principles, is not within the exceptional category. The primary sentencing factor was general deterrence. The significance of general deterrence in the context of serious drug offending is such that the weight to be given to the offender's personal circumstances, including steps towards rehabilitation, is ordinarily of correspondingly reduced significance. I accept however that, to the extent that the respondent's offending was attributable to his suffering from ADHD symptoms which could not be completely controlled by medication, that factor carries full and not reduced weight in mitigation. The respondent's personal considerations were properly to be reflected in the length of the term of imprisonment.
In my opinion, the sentence of 16 months' imprisonment, conditionally suspended for a period of 12 months, was not broadly consistent with reasonably comparable cases.
After evaluating the sentence, in the context of the maximum penalty, the facts and circumstances of the offending, the standards of sentencing customarily observed, the place which the respondent's offending occupies on the relevant scale of seriousness and the respondent's personal circumstances and all other mitigating factors, I am of the opinion that it was not reasonably open to the trial judge to fail to be satisfied that it was inappropriate to impose suspended or conditionally suspended imprisonment. His Honour should have been positively satisfied that it was not appropriate to suspend or conditionally suspend the term of imprisonment. The sentence was unreasonable or plainly unjust. I infer the existence of error from the sentencing outcome.
Ground 2 has been made out.

[180]

At about 3.30 pm on 8 May 2016, police were conducting random breath tests on the South Coast Highway in Denmark. The respondent was travelling back to Albany from Bunbury, having attended a music festival. The driver of the vehicle in which the respondent was travelling, Mr Diack, returned a positive breath test. Police sought, and were given, permission to search the car. Police found a large blue and black backpack in the rear of the vehicle which belonged to the respondent. Inside the backpack was a plastic shopping bag which contained 66 pink capsules wrapped in tissue paper. The capsules contained a brown powder which was later analysed and found to be MDMA. The total weight of MDMA was 12.35 g with a purity of between 57 - 65%.[57] Evidence was led at trial that the value of the MDMA was approximately $1,650 if sold in one to two-capsule quantities.[58] At the time of the offence, the average purity of MDMA in Western Australia ranged between 20 - 60%.[59]
In addition to the capsules of MDMA, police also found perforated paper sheets with cartoon pictures of members of the Beatles. Each perforated sheet had been infused with the illicit hallucinogenic commonly known as N-BOMe.[60]
The respondent was arrested and later interviewed at the Albany police station. He was then taken to his house in Denmark where police executed a search warrant. In the kitchen, police located two empty vacuum-sealed bags and a vacuum-sealed bag of cannabis, a vacuum-sealer machine and a container which the respondent said contained an amino acid, taurine, but was later analysed and found to be caffeine powder.[61]
In the master bedroom, police found more perforated 'Beatles' sheets infused with N-BOMe, a set of electronic scales and two containers full of empty pill capsules. The respondent's mobile phone was seized.[62] On it, police found a text message from 'Rina' asking the respondent for 'a tab or two if you still have some', to which the respondent replied with his address.[63]
At trial, the respondent's counsel, in his opening address, told the jury that it was admitted that the respondent possessed the MDMA capsules the subject of count 2. However, he denied any intention to sell or supply them.[64]
In his evidence, the respondent testified that he intended to keep the MDMA capsules for his own use.[65] It is clear by the jury's verdict that it did not accept his evidence on this issue.

[181]

On 11 May 2018, after the jury delivered its verdicts, his Honour made the following findings. At the outset, it may be observed that many of these findings are highly favourable to the respondent. However, none of these factual findings are challenged by the State in the appeal.
The sentencing judge found that, at the time the respondent committed count 2, he 'was actively engaged in the social drug culture in various ways', but was not 'an established or significant dealer for reward'.[66] However, the respondent 'was willing to occasionally sell some of his personal stock to friends'.[67]
Specifically with respect to count 2, his Honour found that:
1. The respondent did not attend the music festival in possession of the MDMA capsules, and did not intend to purchase the drugs there.[68]
2. During the music festival, the respondent became 'highly intoxicated' on MDMA.[69]
3. While in this intoxicated state and at the end of the music festival, the respondent came across a vendor of the MDMA who was prepared to dump his remnant stock 'at a bargain basement price just to get rid of them all'.[70]
4. As a result of the respondent's intoxication and his 'impulsive personality type', the respondent made the 'opportunistic and impulsive' decision to buy the MDMA capsules.[71]
5. Consistently with the respondent's 'naïve, immature, erratic and impulsive personality style', the respondent did not have, at the time he acquired the MDMA capsules, 'any settled idea of what he was going to do with the drugs other than use them'.[72]
6. However, the next day, after the respondent 'had plenty of time for reflection' and as he was being driven back to Denmark, he realised 'that he had a good number of tablets [sic] of excellent quality',[73] and that he could not use them all himself.[74] The sentencing judge found that the respondent 'was not averse to selling or passing on any that he could not use himself if it would benefit him in some way'.[75]
7. '[T]here was a probability that many of the tablets [sic] would be distributed to others and therein lies the real evil of the offending here'.[76] His Honour continued:[77]

[195]

His Honour made the following findings as to the respondent's personal circumstances:
1. At the time of the offence, the respondent was 23 years old. He was 25 when he was sentenced.[98]
2. The respondent has attention deficit hyperactivity disorder.[99]
3. The respondent had a dysfunctional and traumatic upbringing, including significant grief issues which arose from his father's tragic death when the respondent was a teenager.[100]
4. The respondent is dyslexic, which affected his schooling and peer interaction.[101]
5. As a result of the factors referred to in points (3) and (4) above, the respondent was 'very immature for his age at the relevant time and also susceptible to errors of judgment'.[102]
6. Upon his arrest, the respondent 'committed to counselling and rehabilitation and has established an extremely positive rehabilitation trajectory. He has been clean from drugs for some time'.[103]
7. The respondent is in a stable relationship, has completed an apprenticeship in carpentry and joinery, has 'a very good employment history and an excellent vocation in front of him'.[104]
8. While the reports obtained by his Honour revealed three risk factors, namely pro-substance abuse attitudes, his substance misuse and his association with drug-using peers, his Honour concluded that 'all of these risk factors have been very significantly addressed'.[105]
9. The respondent has the support of 'family and other supporters'.[106]
10. The respondent 'is not going to reoffend again' and 'has unusually high prospects of rehabilitation and enjoying a prosocial life.[107]
The respondent had no prior criminal history. On 2 February 2017, he was convicted of three counts of possession of a prohibited drug and given a global fine $900.[108] These convictions also arose from the searches conducted on 8 May 2016.
His Honour found that the respondent's 'established psychological or psychiatric pathology'[109] was a mitigating factor because it had the effect of impeding the respondent's judgment. In this regard, his Honour referred to this court's decision in Krijestorac v The State of Western Australia.[110]
His Honour regarded the appellant's admission that he possessed the MDMA as mitigating.[111]
His Honour made the finding, which is the subject of ground 1, that the respondent had accepted responsibility for his offending and 'is deeply remorseful'.[112] His Honour added that the respondent's acceptance of responsibility and remorse was demonstrated 'by the steps he has taken to mentor others in the community who have been or are in his situation'.[113] The reference to the respondent mentoring others derives from a letter sent to his Honour, dated 2 May 2018, written by Mr Neville Clark, a youth counsellor at the Great Southern Community Alcohol and Drug Service, in which he stated that, '[the respondent] has also helped other young people seek counselling with Palmerston'.[114]
His Honour expressly (and correctly) acknowledged that immediate imprisonment was 'the usual disposition for offences of this kind'. However, his Honour described the case as 'unusual' and his Honour imposed a suspended sentence. His Honour's reasoning for taking this course was expressed in this way:[115]

[196]

In my opinion, this case is unusual for a number of reasons, but principally the way in which the intent to sell or supply came about. But also noting that not only was there a plea of guilty in relation to possession, but the acquisition of the drugs was most unusual and as I've described it, a kind of perverse serendipity saw [the respondent] buying more drugs than he could possibly have needed or thought he was buying. It's unrealistic to expect him to throw half of them out the window and thereby reduce his stock to something more manageable.

The case of Wong [Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584] and many others makes [sic] clear that the purity and weight of the drug in question are important factors but not always, in fact rarely decisive and this case is an example of where it is not decisive. I'm mindful of the authorities such as [The State of Western Australia v Baldini [2015] WASCA 39]. The courts are very strong now in peer-to-peer supply and youth is rarely sufficient mitigation these days. Even rehabilitation is rarely sufficient, but this case does have unusual features.

Is that enough for a noncustodial disposition? No, it is not. There is a strong need for personal and general deterrence, but they are slightly less than usual because of the personal circumstances I've mentioned. Usually personal circumstances don't count for much, but again the circumstances of this case are different. The commerciality was unusual and ill-crystallised, if I can use the word of the day and I have to give weight to matters personal which would not normally be done.

What is essential here is that [the respondent] continue his rehabilitation trajectory in the community. That is good for him and it is good for the community, particularly if it means he continues to mentor other at risk youth. I accept Mr Scudds' submission that a term of imprisonment to be immediately served would be extremely counterproductive. That usually doesn't carry much weight in a case of this kind, but I have no doubt that it would be an appalling setback for [the respondent] with his multifactorial personal problems.

I've taken into account that the reports recommend supportive psychological counselling, especially for unresolved grief. Any term of imprisonment imposed today and it's 16 months, I should say, I don't think would allow sufficient time for relevant psychological treatment to be provided in a prison setting. It's one thing for there to be a statutory obligation for it to be provided, but as is now widely accepted the reality is not completely in step with the statutory expectations.

So the sentence is 16 months' imprisonment which I will suspend for 12 months with supervision and program requirements.

[197]

Ground 1 alleges that the sentencing judge made an express error. Ground 2 alleges an implied or inferred error.
The imposition of a sentence involves the exercise of a discretion. This court can only intervene if the appellant demonstrates express or implied error. Implied error arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. It follows that this court cannot intervene simply because it would have exercised the sentencing discretion differently. In the case of implied error, the appellant must demonstrate that the outcome was one that was not open to the sentencing judge in the proper exercise of his or her discretion.
The claim in ground 2 of implied error requires this court to examine the sentence 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 offender's personal circumstances.
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact 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 a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case was miscarried. A sentencing range for comparable cases is merely one of the factors to be taken into account in deciding whether a sentence is manifestly 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.
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.[116]

[198]

The appellant submitted that, in light of the respondent's plea of not guilty to count 2 and his assertion post-conviction that he did not have any intention of selling or supplying the MDMA, it was not open to the sentencing judge to find, as his Honour did, that the respondent was deeply remorseful for his offending. The appellant submitted that the sentencing judge conflated the respondent's efforts towards rehabilitation with genuine remorse.[117]
The respondent submitted that it was open to the sentencing judge to find that the respondent was deeply remorseful. It was contended that the respondent would not have embarked upon his rehabilitation unless he accepted that he had done something wrong. The respondent observed that the respondent admitted he possessed the MDMA and that the issue at trial was restricted to whether he had the requisite intention to sell or supply to another.[118] Further, if this court concluded that the sentencing judge overestimated the degree of remorse displayed by the respondent, no different sentence should be imposed, having regard to the 'powerful mitigating factors' in the respondent's favour.[119]
In Rowsell v The State of Western Australia,[120] Mazza JA observed that remorse is not to be equated with sorrow for being caught, an acknowledgment that conviction was inevitable or regret on the offender's part that he or she faces some kind of sanction. Mazza JA went on to state that remorse, if it is to be mitigating, at least requires a realisation by the offender that what he or she did was morally wrong and some sign of sorrow for the impact or consequences of the offence.[121]
While remorse and rehabilitation are logically separate, they are frequently, as a matter of fact, linked. Genuine remorse may, but not always, lead to rehabilitation.
It is difficult to accept that an offender is genuinely remorseful if he or she continues to maintain their innocence. While, in the present case, the respondent admitted that he possessed the MDMA, he denied and continues to deny that he did so with an intent to sell or supply to another. We are unable to see how it could be said that the respondent realised that what he did was morally wrong or that he understood the potential adverse impact that the sale or supply of MDMA would have on the community.
At best, given the respondent's admission that he possessed the MDMA, it could be said that he was, to some extent, remorseful for that conduct. With great respect to the sentencing judge, we do not think it could reasonably be said that the respondent was deeply remorseful for the offending of which he was convicted. Thus, we accept the appellant's submission that his Honour erred in so finding.
However, in the circumstances of this case, we would not regard his Honour's error as a material error because, given the way in which the sentencing judge reasoned, the finding did not affect the sentencing outcome. When read as a whole, his Honour's sentencing remarks indicate that, speaking generally, his Honour sentenced the respondent on the basis that the circumstances in which the respondent obtained the drugs were 'most unusual', the commerciality 'was unusual and ill-crystallised', it was 'essential' that the respondent continue his rehabilitation in the community and that, if the respondent was made to serve an immediate term of imprisonment it would be 'an appalling setback' for the respondent's 'multifactorial personal problems'. His Honour's finding that the respondent was deeply remorseful did not lead to the imposition of a conditionally suspended term of imprisonment. Given the trial judge's approach and reasons, the error could not have affected the sentence which his Honour imposed.
While we would give leave to appeal on ground 1, we would dismiss the ground.

[199]

The appellant's written submissions in support of ground 2 appear to challenge a number of his Honour's findings of fact. At the hearing of the appeal, when the matter was brought to the attention of the appellant's counsel, he did not maintain any challenge to his Honour's findings of fact, apart from the alleged express error in ground 1. In other words, the State acknowledged that this court should decide the appeal on the facts found by the trial judge and the circumstances of the offender, apart from the finding that the respondent was deeply remorseful.[122]
The appellant submitted that, having regard to the sentencing principles applicable to the offence for which the respondent was convicted, his Honour erred in suspending the term of imprisonment. The appellant contended that there was nothing in the personal circumstances of the respondent, nor in the circumstances of the offending, which displaced the paramount need for the sentence to give effect to general deterrence or which would otherwise justify departure from the disposition ordinarily appropriate for this type of offending; namely, a term of immediate imprisonment. Further, the appellant argued that the sentence that was imposed was not consistent with sentencing standards for offences contrary to s 6(1) of the MDA. The appellant submitted that, having regard to the need to maintain proper standards of sentencing and to provide effective deterrence for offending of this kind, this court's intervention was required.[123]
In his submissions, the respondent acknowledged that the imposition of a conditionally suspended imprisonment order was lenient. The respondent submitted that the sentence nevertheless fell within the broad range of a sound exercise of the sentencing discretion, because the circumstances of the offending and the respondent's personal circumstances, including the steps the respondent had taken towards his rehabilitation, constituted exceptional reasons for the imposition of a sentencing other than immediate imprisonment.[124]
The respondent pointed to a number of cases said to be broadly similar to the respondent's case, where sentences other than immediate imprisonment had been imposed, to support a submission that the sentence in question was 'not so out of kilter or arbitrary' to warrant appellate intervention to correct it.[125]

[201]

Section 6 of the Sentencing Act 1995 (WA) requires that a sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of the appellant's offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors. The appellant bears the onus of establishing mitigating factors on the balance of probabilities.

Section 6(4) of the Sentencing Act provides that a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only a sentence of imprisonment can be justified or the protection of the community requires it.

The effect of s 39(3) of the Sentencing Act is that a court must not impose a term of immediate imprisonment unless satisfied that suspended and conditionally suspended imprisonment are not appropriate sentencing options. In deciding whether it is satisfied of that matter, the court must have regard to the sentencing principles in pt 2 div 1 (including s 6) of the Act.

Section 39(3) of the Sentencing Act imposes a constraint on the court's sentencing discretion. The constraint is not discretionary. 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. Section 39(3) prohibits a court from imposing a sentence of immediate imprisonment unless the required state of satisfaction exists.

The condition for the release of the constraint on the court's sentencing discretion which s 39(3) of the Sentencing Act imposes is defined by reference to the existence of a state of satisfaction in the sentencing court. The subject matter about which the sentencing court must be satisfied is the appropriateness of different types of sentence. A sentencing judge must be positively satisfied that suspended and conditionally suspended imprisonment are not appropriate sentencing options before imposing a sentence of immediate imprisonment.

In considering whether suspended or conditionally suspended imprisonment is not appropriate, the provisions relating to those sentencing options must be considered. Only terms of 5 years or less may be suspended or conditionally suspended. Suspended or conditionally suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances. Further, suspended or conditionally suspended imprisonment is not to be imposed if the offence was committed when the offender was subject to an early release order, or the offender is serving or is yet to serve a term of imprisonment that is not suspended. These specific requirements did not preclude the imposition of suspended or conditionally suspended imprisonment in the appellant's case.

Otherwise, considering what sentencing options are 'not appropriate' involves an evaluative judgment which is broad but not at large. The determination of what is 'not appropriate' must be reached by applying the relevant sentencing principles and considerations to all the circumstances of the offence and the offender.

Where a sentence is said to be manifestly excessive as to type, the question for this court is whether it was reasonably open to the sentencing court, upon application of the relevant sentencing principles and considerations and in all the circumstances, to be positively satisfied that earlier listed sentencing options were not appropriate.

As was emphasised in Dinsdale v The Queen, in an appeal alleging the imposition of the wrong type of sentence, it remains necessary to identify an error of principle by the sentencing judge before this court has authority to interfere with the sentence. Where error is not express and manifest excess or inadequacy is alleged, the court may infer error where the sentence imposed is unreasonable or plainly unjust. (citations omitted)

[204]

Conversely, when a sentence is said to be manifestly inadequate as to type, the question for this court is whether it was reasonably open to the sentencing judge, upon application of the relevant sentencing principles and considerations and in all the circumstances, to fail to be satisfied that earlier listed sentencing options in s 39(2) of the Sentencing Act 1995 (WA) were inappropriate.
This court has, time and again, made it plain that, generally, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for serious drug offences.[130] The incentives, financial and otherwise, to participate in the illicit drug distribution network must be counterbalanced by a clear and certain understanding that such involvement will ordinarily result in a penalty of immediate imprisonment.[131] Accordingly, the imposition of a sentence other than immediate imprisonment for an offence of the kind under consideration in this appeal is, as a matter of fact, exceptional.[132]
However, even if a term of immediate imprisonment is generally the appropriate penalty, a sentencing judge is not relieved of their obligation to determine the appropriate penalty in the particular case.
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs such as MDMA 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 personal gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.[133]
In The State of Western Australia v Johnson,[134] McLure P, with whom Newnes JA and Mazza J agreed, said that youth, in the sentencing of adults, meaning people in their late teens to middle twenties, and the absence of prior relevant convictions, do not ordinarily result in the suspension of a term of imprisonment for drug dealing offences. Her Honour noted that is not uncommon in this State for young persons of prior good character to engage in distribution of prohibited drugs. Further, many of the youthful offenders in cases decided in this court have, after being charged, taken positive steps towards rehabilitation and are found not to be at any significant risk of reoffending. The imposition of a term of immediate imprisonment in these types of circumstances reflect the significant weight accorded to the need for general deterrence and the prevalence of this offending among young people. The latter may have some correlation with the nature of the market for prohibited drugs.[135]

[205]

It is necessary in this case to review, and have regard to, a number of cases which have at least some features similar to the present case. We will begin with The State of Western Australia v Baldini.[136]
In that case, the offender was convicted on his pleas of guilty of one count of selling 65 MDMA tablets, contrary to s 6(1)(c) MDA, one count of possessing 490 MDMA tablets with intent to sell or supply, contrary to s 6(1)(a) MDA, and one charge in a s 32 notice of being in possession of $3,800 that was reasonably suspected to be unlawfully obtained.[137] The offender was 19 at the time of the offences, he had no prior criminal record, was remorseful, had cooperated fully with police and taken steps to rehabilitate himself before sentencing. The sentencing judge found that he was 'on the road to rehabilitation'.[138] He came from a stable and supportive family, attended counselling and was progressing well.[139] The offender was sentenced to 12 months' imprisonment on count 1, 18 months' imprisonment on count 2 and 3 months' imprisonment on the s 32 offence, all of which were ordered to be served concurrently. This resulted in a total effective sentence of 18 months' imprisonment which the sentencing judge suspended on conditions for 18 months.[140]
The State appealed against sentence on two grounds. Ground 1 alleged that the sentencing judge erred in imposing sentences of a type that were manifestly inadequate and ground 2 alleged that the length of the sentences on counts 1 and 2 were manifestly inadequate. This court (McLure P; Buss & Mazza JJA agreeing) allowed the appeal on ground 1 and dismissed ground 2. The order conditionally suspending the terms of imprisonment was set aside and the offender was sentenced to a total effective sentence of 18 months' immediate imprisonment with eligibility for parole.[141]
In Baldini, McLure P reviewed a large number of cases involving youthful offenders in combination with some or all of prior good character, early guilty plea, remorse, advantaged background, family support, positive steps towards rehabilitation and no significant risk of reoffending. These cases were R v Mahasay;[142] Wong v The State of Western Australia;[143] Phan v The State of Western Australia;[144] RP v The State of Western Australia;[145] Zohdy v The State of Western Australia;[146] Mishal v The Queen;[147] Saxild; The State of Western Australia v Andela;[148] Lam v The State of Western Australia;[149] Vagh v The State of Western Australia;[151] Burke v The State of Western Australia;[152] The State of Western Australia v Tran;[153] Johnson; The State of Western Australia v Buck;[154] Bond v The State of Western Australia;[155] Hobby v The State of Western Australia;[156] Jardim v The State of Western Australia;[157] Duong v The State of Western Australia;[158] The State of Western Australia v Reid.[159]
Her Honour went on to observe that an offence under s 6(1) of the MDA is one of the rare types of offence in which a youthful first offender will not ordinarily be spared immediate imprisonment. This, her Honour said, reflected the prevalence of offending of this type among young people which may be related to the fact that children are well and truly in a target market of drug dealers.[160]
The principles described in Baldini were applied in Kirkup v The State of Western Australia.[161] In that case, the offender, who was 22 years of age at the time of the offending, had no relevant prior criminal record, was of prior good character and had taken positive steps towards his rehabilitation.[162] He was convicted on his fast-track plea of guilty of one count of selling 34.31 g of MDMA powder for $4,000 contrary to s 6(1)(c) MDA. He was sentenced to 18 months' immediate imprisonment.[163] The offender appealed alleging that the sentence was manifestly excessive as to both type and length. Leave to appeal was refused.[164]
In the current case, the appellant cited 12 cases involving offences which have at least some features similar to the present case, namely Towler v The State of Western Australia;[165] Donaldson v The State of Western Australia;[166] Bailey v The State of Western Australia;[167] Truscott v The State of Western Australia;[168] Maric v The State of Western Australia;[169] Fenton v The State of Western Australia;[170] Stewart v The State of Western Australia;[171] Cartwright; Swains v The State of Western Australia;[172] Pepper v The State of Western Australia;[173] Schlenka v The Queen;[174] and Vogel v The Queen.[175] In all of these cases, terms of immediate imprisonment were upheld.
It is unnecessary to summarise all these cases but it is useful to refer to the facts and circumstances of Cartwright, which in many respects mirror the present case. In Cartwright, the offender was stopped by police for exceeding the speed limit. When her car was searched a total of $22,150 in cash was discovered. When the appellant was driven to the police station, on leaving her car she flung a black jewellery bag away which police recovered. In the bag was 11.8 g of methylamphetamine with a purity of 78%. The offender admitted being in possession of the methylamphetamine but denied an intention to sell or supply it to another. She was convicted after trial of being in possession of the methylamphetamine with intent to sell or supply it to another.[176]
The offender was 25 years of age when she was sentenced. She had reformed herself, was drug free and was found to be capable of making a positive contribution to the community. She was in work and was in a stable relationship. Her mother started her on methylamphetamine as a teenager and for a period in her life she lived in an abusive relationship with a man who supplied her with drugs.[177] The sentencing judge made no finding connecting the offending with the offender's drug addiction. In particular, there was no positive finding that any part of the methylamphetamine in the offender's possession was for her personal use and no positive finding that the offender committed the offence in order to fund her drug use.[178] Further, there was little indication of remorse. The sentencing judge found that the significant amount of cash in the offender's possession related to her role as a drug courier.[179]
The offender was sentenced to 3 years' immediate imprisonment.[180] Her appeal on the basis that the sentence was manifestly excessive was dismissed. McLure P with whom Owen and Wheeler JJA agreed, observed that had the sentencing judge suspended the term of imprisonment she would have erred.[181]
Since 2004, there have been only six cases in which suspended terms of imprisonment (conditional or otherwise) have been upheld or imposed on appeal. They are Samuel v The State of Western Australia;[182] Attenborough v The State of Western Australia;[183] The State of Western Australia v Marchese;[184] The State of Western Australia v Skaines;[185] Crichton v The State of Western Australia;[186] and The State of Western Australia v Thompson.[187] We note that The State of Western Australia v Marchese and The State of Western Australia v Skaines were decided before the abolition of the double jeopardy principle.
In Samuel, the offender was found guilty after trial of possession of 6.25 g of powder consisting of 25% methylamphetamine and 19% pseudoephedrine with intent to sell or supply it to another. He was sentenced to 2 years' imprisonment.[188] The offender was a 47-year-old first offender who had no criminal history and favourable antecedents.[189] The Court of Criminal Appeal found that the sentencing judge erred in failing to give proper consideration to whether a suspended sentence should be imposed.[190] The court ordered that the sentence of 2 years' imprisonment be suspended for 2 years. Roberts-Smith J (Malcolm CJ & Murray J concurring) said:[191]

[207]

In Attenborough, the offender was convicted of possession of 8.43 g of 40% pure MDMA with intent to sell or supply it to another.[192] The offender was found in possession of 36 ecstasy tablets which she had purchased for her own use and for her friends' use for an upcoming 21st birthday party. Her friends had paid her in advance for the cost of the tablets which were purchased on their behalf. The offender did not profit as a result of her purchase of the drugs. She was 20 years of age, had no prior convictions and had excellent antecedents.[193] The offender was sentenced to 20 months' imprisonment with eligibility for parole.[194]
In the appeal, the State conceded that the sentencing judge made an express error and contended that a suspended sentence was an appropriate disposition.[195] This court found that the circumstances of the case were at the low end of the scale of seriousness of offences of this kind. The sentence was suspended on appeal because of the offender's youth, the absence of a commercial motive or outcome, her clean record, her demonstrated remorse and other factors personal to the offender.[196]
In Marchese, the offender was convicted after pleas of guilty to a number of offences, including two counts of possession of a prohibited drug (respectively, methylamphetamine and MDMA) with intent to sell or supply to another. He was sentenced to 2 years' imprisonment for the offence of possession of methylamphetamine with intent to sell or supply, and to 16 months' imprisonment for the offence of possession of MDMA with intent to sell or supply. The two sentences were ordered to be served concurrently, and the sentencing judge suspended the total sentence for a period of 2 years. The State appealed against the sentences, contending that the terms of imprisonment should not have been suspended.[197] The offender was found in possession of 27.97 g of 18% pure methylamphetamine, and 2.06 g of MDMA with an unknown purity. The police also found paraphernalia associated with selling drugs. The offender admitted that he had been dealing in drugs for financial reasons. The respondent was 24 years old at the time of sentencing and had no criminal history. After his arrest, he ceased to associate with acquaintances who were involved in drugs, had insight into his offending behaviour and had 'reassess[ed] his life direction' and determined that he would 'never go back to using illicit drugs'.[198]
This court dismissed the State's appeal.[199] Steytler P concluded that the sentence imposed was inadequate. However, having regard to the delay in bringing the appeal on for hearing and the offender's rehabilitation, his Honour concluded that it was appropriate to exercise the residual discretion not to interfere with the sentence imposed at first instance.[200]
Wheeler JA agreed with Steytler P and added the following observation:[201]

[211]

Buss JA found that the sentences were manifestly inadequate and would not have exercised the residual discretion in favour of the offender.[202]
In Skaines, the offender was convicted on his plea of guilty to one count of conspiracy to manufacture methylamphetamine. He was sentenced to 4 years and 8 months' imprisonment suspended for 2 years.[203] The offender transported various items including 178 g of pseudoephedrine to premises in Kirup which had been set up to manufacture methylamphetamine. The offender was sentenced on the basis that he was to receive $1,000 for organising the delivery of the equipment and ingredients.[204] The offender was 45 years of age at the time of the offence and had favourable antecedents.[205] The offender was suffering from a diagnosed psychiatric illness which would result in immediate imprisonment being a greater hardship than usual to the offender. Further, evidence before the court established that he was the sole carer of two dependent children at least one of whom required particular attention.[206] The State's appeal was dismissed.[207] Roberts Smith JA reiterated the observations he made in Samuel. His Honour was not persuaded that the circumstances of the case were such as to preclude the sentencing judge from imposing a suspended sentence.[208]
McLure JA (with whom Buss JA agreed) said that a suspended sentence would only be appropriate if it fell within that category of cases that called for the exercise of mercy, as explained by King CJ in R v Osenkowski.[209] Her Honour regarded the case as being an exceptional category which provided no guidance as to the sentences customarily imposed for offences of the type committed.[210]
In Crichton, the offender pleaded guilty on the fast-track system to one count of possession of heroin with intent to sell or supply it to another. She was sentenced to 9 months' immediate imprisonment.[211] The offender was found in possession of 1.38 g of heroin, 1.18 g of which was for her personal use. The remainder was divided up into five small clipseal bags which contained between 0.02 g and 0.06 g of heroin, which she intended to sell to her friends. She said she would have sold the smaller bags for $50 and the larger bags for $100.[212] At the time she was sentenced the offender was 36 years of age. She had been a victim of sexual abuse and had a history of drug abuse, which was linked to her disturbed childhood.[213] A majority of this court (Pullin and Mazza JJA) allowed the appeal. The majority found that the combination of nine exceptional factors led to the conclusion that it was unjust and unreasonable to impose an immediate term of imprisonment on the offender. Those factors were: the very low quantity of heroin which the offender intended to sell or supply; the offence was not committed in the context of ongoing drug dealing; the offender had not purchased the drug with an intention to sell or supply it; the offender had only agreed to sell or supply part of the drug after being placed under pressure to do so; the offender cooperated fully with police; the offender pleaded guilty at the first available opportunity; the offender engaged in rehabilitation with some success and appeared committed to such a course; the need for personal deterrence was not significant; and the financial gain from the offending was modest.[214] McLure P would have dismissed the appeal.[215]
In Thompson, the offender was convicted after trial of one count of possession of methylamphetamine with intent to sell or supply it to another.[216] The unchallenged evidence at trial was that on 1 February 2012, the offender was in possession of 4.34 g of methylamphetamine in three separate parcels. He was also in possession of a set of electronic scales, some clipseal bags, $3,470 in cash and a cutting agent. The only live issue at trial was whether the respondent intended to sell or supply to another some or all of the drugs. The respondent was fined $2,000.[217] The State appealed on the ground of manifest inadequacy was allowed, and this court substituted a term of imprisonment of 18 months suspended for 12 months, having regard to the relatively small quantity of drugs involved; the sentencing judge's favourable finding that a small part of the methylamphetamine in the respondent's possession would be supplied without reward to another; the respondent's mental condition and the fact that he had not used prohibited drugs since being charged.[218] It was conceded by the State at the hearing of the appeal that a suspended imprisonment order was open.[219]

[212]

The maximum penalty for the offence committed by the respondent is 25 years' imprisonment and/or a fine of $100,000.
The respondent, it must be said, was sentenced on factual findings and a view of his personal circumstances which were undoubtedly very favourable to him. This appeal is to be decided on those findings, save for his Honour's finding that the respondent was deeply remorseful. This court cannot infer error by reference to circumstances which are inconsistent with the sentencing judge's unchallenged factual findings.
There is no dispute that imprisonment was the only appropriate sentence. The offence involved the possession of a not insignificant quantity of MDMA with the intention to sell or supply some of the capsules to others. Although the respondent was not an 'established' drug dealer, he was someone who was willing to occasionally sell some of his personal stock to friends. As his Honour correctly acknowledged, a term of imprisonment had to be imposed and a noncustodial sentence could not be justified based on the circumstances in which the respondent came to possess, and formed the intention to sell or supply, the MDMA, his relative youth and his rehabilitation.
His Honour expressly acknowledged the relevant sentencing principles applicable to drug cases. However, his Honour regarded the features of this case as 'unusual', such that the ordinary disposition of a term of immediate imprisonment was inappropriate. Those unusual features were:
1. The respondent did not actively seek to acquire the MDMA.
2. The acquisition was opportunistic and impulsive.
3. The appellant did not acquire the MDMA with an intention to sell or supply it.
4. On the journey from Bunbury to Denmark, the respondent realised that he had acquired more MDMA than he could use himself, and it was at this point that he formed the intention of selling or supplying many (but not all) of the capsules to his peers.
5. It was impossible to say what proportion of the MDMA would be sold or supplied to others.
6. The respondent was not part of an organised business selling MDMA or any other illegal drug.
7. The offence was not motivated by greed or commercial gain, but the respondent would have obtained some financial benefit, although the extent of that benefit was 'ill-crystallised'.
8. The respondent's offending was mitigated by his ADHD, which impaired his judgment.
With respect to the last point, his Honour's finding concerning the respondent's ADHD must be viewed in the context of the reports to which we have already referred. In particular, Dr Kay noted that the respondent was compliant with his ADHD medication and that his symptoms had generally been under very good control. Nevertheless, that did not mean that the respondent did not have symptoms of impulsivity and poor judgment, bearing in mind that the medications for ADHD are not always fully effective.
In our opinion, having regard to the combined effect of all of the abovementioned circumstances, the criminality involved in this case is towards the lower level of offences of this type.
The respondent's personal circumstances included:
1. His relative youth at the time he committed the offence.
2. His ADHD.
3. His dysfunctional and traumatic upbringing, including the tragic death of his father.
4. His dyslexia.
5. That he had successfully addressed the pre-risk factors identified by Mr Wszola, including his illicit drug use and his association with drug-using peers.
6. The support that he has from his family and friends.
7. His unusually high prospects of rehabilitation and his Honour's prediction that he would not reoffend.
The sentencing judge undoubtedly placed great emphasis upon the respondent's rehabilitation, which his Honour said was not only good for the respondent but was also good for the community. His Honour also formed the view that to sentence the respondent to immediate imprisonment would be 'extremely counterproductive' to his rehabilitation and would be an 'appalling setback'.
The sentencing principles in respect of offences relating to the trafficking of illicit dangerous drugs are clear and consistent. However, there is no de facto regime of mandatory sentencing such that terms of immediate imprisonment must be imposed in all such cases, whatever the circumstances. Each case must still be decided on its own particular facts and circumstances. There must always be room for rare and exceptional cases as illustrated by the cases analysed at [154] - [165] above.
The rationale for not imposing an immediate term of imprisonment in these cases varies according to their particular facts and circumstances. For example, in Samuel and Skaines, Roberts-Smith JA said the principle of general deterrence does not inevitably have to be given primacy in every case. In Skaines, McLure JA (as her Honour then was) referred to the discretion to impose a merciful sentence as explained by King CJ in Osenkowski. In Marchese, Wheeler JA said that King CJ's statement should not merely be paid lip-service. In Crichton, the majority noted the combined force of a large number of factors concerning the commission of the offence and the offender herself, made the imposition of an immediate term of imprisonment unjust and unreasonable.
As the observations of Wheeler JA in Marchese indicate, the capacity of a sentencing judge to impose a sentence which may be characterised as merciful or lenient is to be exercised for the benefit of the community. Imprisonment not only imposes a cost on the community but it can damage an offender's prospects of employment, mental health and attempts to avoid associating with anti-social peers. The prospects of reoffending may be increased by imprisoning a young offender of prior good character, who has demonstrated rehabilitation by finding stable employment and established a prosocial lifestyle. Sentencing the offender in a manner which achieves rehabilitation, and avoids a sanction which may increase rather than reduces the risk of future offending, serves the interests of the community. Where rehabilitation occurs, the community is spared the cost of the offender's incarceration as well as the costs associated with future reoffending.
There will be cases where immediate imprisonment is the only sentencing option which is commensurate with the seriousness of the offence, even where it is counterproductive from the perspective of rehabilitation. The seriousness of the nature and circumstances of offending may require a sentence of immediate imprisonment, irrespective of the personal circumstances of the offender. That is usually the case where the offending involves commercial dealing in significant quantities of prohibited drugs. However, as the authorities referred to above illustrate, this is not inevitably the case.
While the outcome in one case is not determinative of the outcome in another case, a possible impediment to the respondent is Cartwright. However, in our view, this case is distinguishable from the present case for two reasons. First, the offender in Cartwright was a drug courier who was found in possession of $22,150 in cash in addition to the methylamphetamine she was carrying.[220] A significant amount of that cash related to her role as a drug courier.[221] Secondly, there was no finding that any part of the methylamphetamine was for her personal use, and no positive finding that the offender committed the offence in order to fund her drug use.[222] In the present case, the respondent would have used some of the MDMA himself, and he was not engaged in drug distribution for commercial gain to anything like the level engaged in by the offender in Cartwright.
In the present case, his Honour took the view that a conditionally suspended term of imprisonment could be imposed having regard to the combination of factors referred to in [169] and [172] of these reasons. In substance, his Honour found the circumstances of the offending unusual and less serious than the circumstances in other cases, and that the respondent had unusually high prospects of rehabilitation. Further, to impose a term of immediate imprisonment upon him in light of the efforts he had made would be counterproductive to both the respondent and the community. As has been noted, the State does not challenge these findings.
Having regard to those findings, it was open to the sentencing judge to not be satisfied that conditionally suspended imprisonment was an inappropriate sentencing option. While his Honour's decision to impose conditionally suspended imprisonment was undoubtedly lenient, we are not satisfied that it was unreasonable or plainly unjust. On the particular facts and circumstances of this case, in particular the manner in which the respondent came into possession of the MDMA and the nature and duration of his intention to sell or supply, it was open to the judge to conclude that the primacy ordinarily given to general deterrence was outweighed by considerations of rehabilitation and his conclusion that immediate imprisonment would be destructive to the respondent's rehabilitation and so contrary to the interests of the community. In all the circumstances, the nature and circumstances of the offence were not so serious as to necessarily make anything other than an immediate term of imprisonment an inappropriate sentencing option.
For these reasons, while we would give leave to appeal on ground 2, the ground has not been made out. As the State's appeal has been dismissed, it is unnecessary to decide the respondent's application to adduce additional evidence.

THE STATE OF WESTERN AUSTRALIA -v- EGELAND [2018] WASCA 228 (7 January 2019)

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THE STATE OF WESTERN AUSTRALIA -v- EGELAND [2018] WASCA 228 (7 January 2019)

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