Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - State appeal against pre­sentence order - Construction of s 33A(3) of Sentencing Act 1995 (WA) - Whether open to impose pre­sentence order

Criminal Appeals Act 2004 (WA), s 24(1)(a)

Sentencing Act 1995 (WA), s 32, s 33A, s 33B, s 33D, s 33F, s 33G, s 33J

Respondent to be sentenced by a different sentencing judge in accordance with these reasons

1 McLURE JA: This is a State appeal against a pre-sentence order imposed by the Chief Judge of the District Court.

2 On 15 October 2007 the respondent was convicted on her own plea of guilty of four counts of possession of a prohibited drug with intent to sell or supply to another and one count of supplying a prohibited drug to another contrary to s 6(1) of the Misuse of Drugs Act 1961 (WA). The particulars of the counts are as follows:

Possession with intent to sell/supply (methylamphetamine)

Possession with intent to sell/supply (methylamphetamine)

3 Following the commission of the offence the subject of count 5, the respondent was remanded and spent 234 days (approximately 8 months) in custody until released on bail. She was released on bail because the learned sentencing judge considered there were exceptional circumstances being that the respondent's 19-year-old daughter had recently given birth to twins, one of whom was ill.

4 After her conviction on 15 October 2007, the respondent was granted bail pending sentencing for the offences. On 6 March 2008 the respondent pleaded guilty to five of nine counts the subject of a s 32 notice under the Sentencing Act 1995 (WA). It appears that as a result of an oversight counts 6 and 9 were not put to the respondent. On the same date the sentencing judge imposed a pre-sentence order with a programme and supervision requirement, including urinalysis. The respondent was remanded to appear in the District Court on 17 February 2009 for sentencing.

5 It appears the respondent was not sentenced for the five offences the subject of the s 32 notice. The five counts to which she pleaded guilty were two counts of possession of cannabis, two counts of possession of heroin and one count of breach of bail.

6 Part 3A of the Sentencing Act provides for a pre-sentence order (PSO). A PSO is not a sentence. It is an order that an offender appear before the court on a specific day to be sentenced for the offences to which the PSO applies: s 33B(1), s 33J(1) of the Sentencing Act. The purpose of a PSO is to give an offender who is facing a term of imprisonment an opportunity to take steps to address their offending behaviour prior to the court proceeding with sentencing (second reading speech for the Sentencing Legislation Amendment and Repeal Act 2003 (WA) which inserted Pt 3A).

7 Under s 24(1)(a) of the Criminal Appeals Act 2004 (WA) the State has, in relation to a charge of an indictable offence, a right of appeal against the sentence imposed on a person convicted of the charge or any order made as a result of the conviction. A PSO is an order made as a result of a conviction and thus the appeal is competent.

8 Section 33A is the source of the power to impose a PSO. Section 33A(3) provides:

If this section applies, the court may make a PSO in respect of the offender if it considers -

(a) that the seriousness of the imprisonable offence or offences warrants the imposition of a term of imprisonment under Part 13;

(b) that a PSO would allow the offender to address his or her criminal behaviour and any factors which contributed to the behaviour; and

(c) that if the offender were to comply with a PSO the court might not impose a term of imprisonment under Part 13 for the offence or offences.

9 An imprisonable offence is defined in s 33A(1) to mean an offence the statutory penalty for which is or includes imprisonment. Part 13 of the Sentencing Act deals with the ultimate sentencing option of immediate imprisonment.

10 The State contended the sentencing judge erred in making a determination that she considered that if the respondent were to comply with the PSO she might not impose a term of immediate imprisonment. The State does not rely on any express error in the sentencing judge's reasoning. Rather it contends it was not open on the evidence for the trial judge to consider that she might not impose a term of immediate imprisonment.

11 The power in s 33A(3) is subjective. The term 'considers' means 'is of the opinion'. It was contended on behalf of the respondent that the matters in pars (a), (b) and (c) of s 33A(3) are disjunctive so the power to impose a PSO is enlivened upon the court having an opinion in relation to one or more of the matters specified in the paragraphs. That construction is without merit. The language (including the word 'and' at the end of par (b)), context and purpose of the section compel the conclusion that the matters in pars (a), (b) and (c) are cumulative. Accordingly, the power to impose a PSO is only enlivened if the sentencing judge has reached an opinion on, and in the terms of, each of the matters in pars (a), (b) and (c) of s 33A(3).

12 The standard obligations of a PSO and the supervision and programme requirements are to be found in s 33D, s 33F and s 33G of the Sentencing Act respectively. It is unnecessary to detail them here.

13 On 11 January 2007 a motor vehicle in which the respondent was a passenger was stopped by police. The respondent had in her possession the heroin the subject of count 1 and the methylamphetamine the subject of count 2. She also had $715 in cash in her pocket.

14 On the same day, police executed a search warrant at the respondent's home. Police located the methylamphetamine and cocaine the subject of counts 3 and 4 in the indictment. Other indicia of participation in the commercial distribution of prohibited drugs were also found at the respondent's premises, including:

(a) three electronic scales and one set of manual scales, all of which had traces of drug residue;

(b) several glossy magazines from which pieces of paper had been cut or torn into small squares and several folded pieces of paper were located throughout the residence folded in such a way as to secure small amounts of drugs;

(d) $1,745 cash in the respondent's bedroom drawer;

15 On 23 February 2007, whilst on bail for the earlier offences, the respondent supplied to another the heroin the subject of count 5. Police then conducted another search of the respondent's home. The police there located a small set of scales containing traces of heroin, one fold of paper containing 0.04 g of heroin and $5,375 in cash.

16 The respondent was aged 48 at the time of the order. She had a prior record of offending, primarily for possession of drugs. The respondent is an entrenched drug user. Her illicit drug use commenced in her early teens and became problematic in her late 20s. She became addicted to heroin. She has had two admissions to Graylands Hospital suffering from drug-induced psychosis. She has been on a methadone treatment programme and other treatment programmes from time to time. Her attempts at rehabilitation have been unsuccessful. She was on a methadone treatment programme at the time she committed these offences. She was at the same time using prohibited drugs. The pre-sentence report notes that the respondent admitted to taking prohibited drugs after being released on bail for these offences. The report also notes that the respondent 'showed little insight into her current offences and seemed to place the majority of the blame on outside sources'.

17 The respondent has been married twice and is currently separated from her second husband. She has four children, only one of whom, her 14-year-old son, is dependent on her. The respondent is on a disability pension.

18 The sentencing judge's reasons for granting a PSO are as follows (ts 47):

Generally speaking, the Court of Appeal have said that circumstances personal to you cannot outweigh the need to deter the community generally. However, I have let the circumstances in this case outweigh that consideration in what I think is an exceptional case. I take into account that you spent 8 months in custody.

I take into account the needs of your daughter and the twins, and I take into account in particular the needs of the 14-year-old boy. I am also concerned about you, that you obviously have a very bad habit, an entrenched habit and you may also have other medical conditions that need to be looked into.

19 The principles that apply to the sentencing of drug traffickers are well known. They have recently been reiterated by this court in The State of Western Australia v Saxild [2008] WASCA 156 and The State of Western Australia v Andela [2006] WASCA 77. General and personal deterrence are the predominant sentencing considerations with the consequence that ordinarily a sentence of immediate imprisonment is the only appropriate sentencing option.

20 Applying those principles to the facts in this case, a term of immediate imprisonment was on 6 March 2008 and remains, the only appropriate sentencing option. The respondent had in her possession a total quantity of 25.47 g of prohibited drugs for sale or supply. The drugs in which she dealt, heroin, cocaine and methylamphetamine, are at the high end of the hierarchy of seriousness. The majority of that quantity ranged in purity from 21% to 26% which itself was significant. The purity of the cocaine (80%) was exceptionally high. It is apparent from these matters and the other indicia of drug trafficking, including the very significant quantity of cash in the respondent's possession, that she carried on business as a drug dealer at a relatively high level. There is no basis for an inference that the entire net income from her drug dealing enterprise was spent on drugs for her personal use. There is nothing mitigatory in the respondent's personal circumstances or antecedents. The fact that the respondent committed count 5 whilst on bail for the earlier offence underscores the need for personal deterrence. For the reasons explained in Saxild, general deterrence is also a predominant sentencing consideration.

21 It is the case that the respondent had spent 8 months in custody for the indictable offences. However, that is well below the amount of time she would spend in custody if an appropriate term of imprisonment was imposed: see Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [54]. The other matters relied upon by the sentencing judge for departing from the penalty ordinarily imposed were the needs of the respondent's daughter and her twins and the respondent's dependent son. Generally, the impact of a sentence of imprisonment on the offender's family or children is given little or no weight (The State of Western Australia v Bruce [2004] WASCA 226 [52]) particularly where the predominant sentencing consideration is general deterrence (Burns v The Queen (1994) 71 A Crim R 450, 454 - 455). There is no basis for departing from that position in this case. In any event, there was no positive evidence of any material deleterious impact that a sentence of imprisonment would have on the respondent's children. There was no evidence that the respondent's children and the twins would not be adequately cared for by other members of the extended family. The respondent's son was looked after by his sisters whilst the respondent was on remand for 8 months. Moreover, having regard to the respondent's

longstanding entrenched drug addiction and the serious nature of her offending, she cannot be regarded as a positive adult role model for children.

22 At the time the sentencing judge made the PSO, a sentence of immediate imprisonment was and would remain the only appropriate sentencing option even if the respondent were to comply with the PSO. Having regard to the relevant sentencing principles and the serious nature and circumstances of the offending, it was not open to the sentencing judge to consider that if the respondent were to comply with the PSO she might not impose a term of imprisonment. Accordingly, the sentencing judge erred in imposing the PSO.

23 For these reasons, I would allow the appeal and set aside the PSO. As the respondent has not yet been sentenced, I would remit the matter to the District Court for the respondent to be sentenced by a different sentencing judge in accordance with these reasons.