Court of Appeal (WA)|2008-07-24|Before: McLure JA, Steytler P, Lure JA, Miller JA

THE STATE OF WESTERN AUSTRALIA -v- SAXILD [2008] WASCA 156 (24 July 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- SAXILD [2008] WASCA 156

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Suspended imprisonment for possession of prohibited drug with intent to sell or supply - Whether sentence manifestly inadequate - Turns on own facts

Sentence of 18 months set aside, sentence of 15 months imposed in lieu

2 McLURE JA: This is a State appeal against sentence. The respondent was convicted on his own plea of guilty of two counts of possessing MDMA with intent to sell or supply and two counts of possessing methylamphetamine with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The Chief Judge of the District Court sentenced the respondent to 18 months' imprisonment on each count.

3 The respondent also pleaded guilty to four offences the subject of a s 32 notice. The offences are for the possession of unlawfully obtained property, cannabis resin, a smoking implement and amphetamine. The Chief Judge sentenced the respondent to 6 months' imprisonment for each s 32 offence. She ordered that all sentences be served concurrently resulting in an aggregate term of 18 months and further ordered that the aggregate term be suspended on conditions. The State contends the aggregate term is manifestly inadequate on the ground that the sentencing judge erred in suspending the term.

4 This court cannot intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only do so if the sentencing judge has made an express or implied material error of fact or law.

5 Moreover, as this appeal was commenced on 11 December 2007, the principles applicable to a State appeal against sentence apply: The State of Western Australia v Richards [2008] WASCA 134. In particular, when a court decides to re-sentence an offender on the application of the State, it gives recognition to the element of double jeopardy involved by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.

6 The facts of the offences are as follows. On 25 May 2007 the respondent was stopped in a motor vehicle and the vehicle was searched. He was found to be in possession of 171 MDMA tablets weighing 50.69 g. The purity was between 35% - 50% (count 1 on the indictment). He was also in possession of two clipseal bags containing 1.41 g and 0.59 g of methylamphetamine at 18% and 10% purity respectively (count 2 on the indictment). Police located $9,140 in cash on the respondent's person (s 32 notice). On 26 May 2007 the police searched the respondent's house and located in a safe 9 MDMA tablets weighing 2.56 g (count 3 on the indictment), a quantity of cannabis resin weighing

approximately 4 g (s 32 notice) and a plastic smoking implement containing traces of cannabis (s 32 notice). A search of a bedroom revealed four clipseal bags containing approximately 0.73 g of methylamphetamine (count 4). Whilst on bail for the above offences, the respondent was stopped by police on 15 October 2007 and his vehicle searched. He had 0.06 g of amphetamine in his possession (s 32 notice).

7 The appellant was aged 21 at the time of the offences and lived with his family. He had no prior convictions. He left school at 17 and at the time of his offending had almost completed a 4-year spray painting apprenticeship. He had a very positive reference from his employer.

8 After the respondent was charged with the offences, he sought medical and counselling support and completed a drug and alcohol programme at Holyoak. The sentencing judge described these efforts as 'going through the motions' (I infer for sentencing purposes) because he was found in possession of amphetamine whilst on bail for the offences.

9 The respondent had all the advantages (emotional, educational and financial) that the community regards as optimal for raising a law abiding citizen. The respondent's criminal conduct came as a surprise to his parents and those who are close to his family. That is the scourge of the illicit drug trade which creates demand for and facilitates the use of illicit drugs in all sections of society.

10 It is not uncommon for users to themselves become part of the illicit drug distribution network. Their motives for doing so may vary. They may be motivated by financial gain for themselves or as a means, directly or indirectly, of funding their drug use, dependency or addiction. They may not understand or accept the public policy justification for the criminalisation of illicit drugs or regard the offence as just one of a myriad of prohibitions that can be breached without moral qualm (until, of course, the risk justifying the prohibition eventuates).

11 However, it is the experience of the courts that illicit drugs cause or materially contribute to a very significant proportion of the criminal offences committed in this State, either as a result of users acting under their influence or because of the need to finance or secure a supply of drugs. Illicit drug abuse in this State is a very significant problem both in terms of the extent and consequence of its use. Moreover, significant public resources are devoted to the difficult task of detecting and apprehending offenders.

12 Whatever the motive or rationalisation for participation in the illicit drug distribution network, the incentives to participate 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 Andela [2006] WASCA 77. Andela was a successful State appeal against a suspended sentence imposed by the Chief Judge for a drug trafficking offence. The relevant sentencing principles are well-known but require restatement.

13 For offences under s 6(1) of the _Misuse of Drugs Ac_t, significant weight is given to personal and general deterrence and mitigating circumstances personal to the offender, such as age and good character, are accorded less weight. The application of those two principles has the factual consequence that, save in exceptional cases, courts impose a term of immediate imprisonment for such offences: Andela [17]. Even if a term of immediate imprisonment is ordinarily 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 v The State of Western Australia [2007] WASCA 108 [21].

14 The Chief Judge distinguished Andela solely on the basis that 'there are less tablets'. The offender in Andela was in possession of 500 MDMA tablets packaged in five lots of 100 tablets weighing 138.5 g with a purity of between 37% and 42%. In this case, the appellant had a total of 180 ecstasy tablets weighing 53.25 g and a total of 2.73 g of methylamphetamine with the intention to sell or supply. According to the respondent, he delivered MDMA tablets from one drug dealer to another drug dealer and collected payment for the drugs for which services he was supplied a number of MDMA tablets for him to sell and with methylamphetamine, primarily for his use. In view of his plea of guilty to the offences relating to methylamphetamine, it must be accepted that he intended to supply part of it to others. Thus, the respondent's involvement in the drug trade was as a trusted courier of a drug wholesaler and as a dealer.

15 The circumstances of the offences committed by the respondent and his personal circumstances are not materially distinguishable from other offenders who have received a sentence of immediate imprisonment: Ditri v The State of Western Australia [2006] WASCA 283; Pepper v The State of Western Australia [2005] WASCA 177; (2005) 30 WAR 447; Vogel v The State

of Western Australia [2002] WASCA 261; Dixon v The State of Western Australia [2006] WASCA 255; Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246.

16 The total quantity of drugs the subject of the trafficking offences in this case is significant. The fact that the offences involved a smaller amount of MDMA than in Andela is not a material distinguishing factor that justifies the conclusion that a term of immediate imprisonment is not the only appropriate sentencing option. The mitigating factors are significant and are reflected in the length of the total sentence imposed by the Chief Judge but they do not outweigh the need for personal and general deterrence. A sentence of immediate imprisonment is the only appropriate penalty.

17 For these reasons, the sentencing judge erred in suspending the aggregate sentence. Notwithstanding that the length of the aggregate sentence is lenient, I would give recognition to the element of double jeopardy by reducing the aggregate term from 18 months to 15 months.

18 I would allow the appeal, set aside the sentences for the offences the subject of the indictment and in lieu thereof impose a sentence of 15 months on each count. The orders for concurrency remain but the order suspending the aggregate term be set aside. Thus the respondent is sentenced to a total sentence of 15 months immediate imprisonment. The respondent will be eligible for parole.

THE STATE OF WESTERN AUSTRALIA -v- SAXILD [2008] WASCA 156 (24 July 2008)

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THE STATE OF WESTERN AUSTRALIA -v- SAXILD [2008] WASCA 156 (24 July 2008)

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