Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentencing - Fact finding for sentencing purposes - Manifest inadequacy - Wrong type of sentence

Statutory interpretation - Section 11 Misuse of Drugs Act 1981 (WA) permits but does not mandate for sentencing purposes a compendious finding of intent to 'sell or supply' prohibited drugs to another

Criminal Appeals Act 2004 (WA), s 41(4)(b)

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 11

Attenborough v The State of Western Australia [2005] WASCA 132

Bond v The State of Western Australia [2011] WASCA 123

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1

Duong v The State of Western Australia [2006] WASCA 110

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Lynch v The State of Western Australia [2011] WASCA 243

Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55

Mishal v The Queen [2001] WASCA 328

Munda v The State of Western Australia [2013] HCA 38

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

The State of Western Australia v Andela [2006] WASCA 77

The State of Western Australia v Berlingeri [2011] WASCA 242

The State of Western Australia v Johnson [2010] WASCA 187

The State of Western Australia v Munda [2012] WASCA 164

1 McLURE P: This is a State appeal against sentence. The respondent was convicted after trial of one count of being in possession of methylamphetamine with intent to sell or supply to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act).

2 Sentencing of the respondent proceeded immediately after the jury delivered its guilty verdict on 22 October 2013 without a pre-sentence report. The sentencing judge, Staude DCJ, fined the respondent $2,000. The only ground of appeal pressed by the State is that the sentence is manifestly inadequate.

3 The unchallenged evidence at trial was that on 1 February 2012 the respondent was in possession of 4.34 grams of methylamphetamine in three separate parcels containing 0.18 grams at 33% purity, 0.21 grams at 63% purity and 3.95 grams at 62% purity. The first two parcels were found in the respondent's pocket and the third on a shelf in the respondent's house. He lived alone. The respondent was also in possession of electronic scales, a small number (around 5) of clipseal bags, $3,470 in cash and 0.87 grams of methylamphetamine at 1% purity mixed with dimethyl sulphone (known as MSM), relied on by the State at trial as a cutting agent. After ascertaining that there had been a recent withdrawal of $3,000 from the respondent's bank account, police returned the cash to the respondent. It was not part of the State case that the cash was the proceeds of drug sales.

4 The only live issue at trial was whether the respondent intended to sell or supply to another some or all of the prohibited drugs in his possession. The deeming provision in s 11 of the Act applied. Thus the respondent bore the onus of establishing, on the balance of probabilities, that he did not have an intention to sell or supply to another any part of the methylamphetamine in his possession.

5 The State case was that the respondent was a user who engaged in low level drug dealing to fund his own drug use. The respondent gave evidence at trial. The defence case was that the drugs in his possession the subject of the charge were intended for his personal use.

6 Police searched the respondent's house on 1 February 2012. They did not locate significant quantities of either clipseal bags or cutting agent nor any tick lists or mobile phones. The evidence at trial was that electronic scales were commonly used by both users and dealers of prohibited drugs.

7 The respondent had a Westpac Bank account. A bank statement in evidence showed transaction details in the period 7 February 2011 to 25 January 2012. All relevant deposits into the account, which totalled in excess of $19,000, were direct deposits of the respondent's disability pension. There were regular small direct debits to pay house insurance and gas bills. From 19 August 2011 there were five significant withdrawals from the account totalling $9,800. The opening balance on 7 February 2011 was $5,437.47 and the closing balance on 25 January 2012, $14,209.78, a net increase in funds of $8,772.31.

8 The respondent's evidence was as follows. He owned the house in which he lived, which was unencumbered. He had worked as a self-employed mechanic until about seven or eight years before trial. He suffered from panic attacks and anxiety. In addition to his disability pension, he obtained cash income from busking, selling second hand goods at a Sunday market and selling parts from car wrecks. He had seven or eight cars on his land. He lived pretty frugally on about $200 per week, which included food, electricity, gas, house insurance and transport costs (ts 60). He explained the absence of any withdrawals from his bank account in the period February 2011 - August 2011 on the basis that he lived on his cash income (not deposited into his bank account) and from the repayment of a loan he had made to a friend. He had a long history of drug use, including a bad problem with heroin approximately 15 years before. In the six months when there were no withdrawals from his bank account, he was injecting methylamphetamine occasionally on weekends. At the date of the offence his methylamphetamine usage was very heavy because of interferon treatment for hepatitis C which had been diagnosed in around 2010. Although he did not get a great deal of symptoms from the disease, he decided to have the interferon treatment which began in August 2011 and finished in March 2012. The treatment caused bad side effects, including hair loss and extremely low energy levels, so he increased his methylamphetamine use. The respondent was asked why he had in excess of 4 grams in his possession:

So how did that come about? How did you - - -?---Prior to that I was buying smaller amounts each day, like $100 packets or two and $300 packets, whatever was available, but it was, yeah, it was becoming - I couldn't - I wasn't going to be able to afford it. I was running out of money.

Well, you still had quite a bit left in your Westpac account?---I did, yes, but I don't like to touch that. I was using the money that I'd saved from busking and - and the other things and that was - was running out at this buying it in small amounts so I bought - purchased a larger amount which is much cheaper in the long run. And I purchased enough to get me through until the end of my treatment (ts 54).

9 At the date of the offence the respondent was using about 2 points of methylamphetamine a day, intravenously. A 'point' is 0.1 grams which cost around $100. The respondent said that all the drugs in his possession were for his use.

10 A couple of weeks before the offence, he purchased two eight-balls (a total of 7 grams) for $3,000, which was very cheap. He made the purchase from a new dealer who extended credit for half the purchase price. Each time he used, he weighed the drug on his electronic scales.

11 The search of the respondent's house was videoed. In the course of the search the respondent referred to the 0.87 grams as being 'cut'. He said at trial that was wrong and he should not have said it because he had not knowingly brought MSM inside his house. The respondent confirmed that cutting the drug in his possession would be inconsistent with him using all the drug. He did not recall where or when he got the 3.95 grams located in his house or the 0.18 grams and the 0.21 grams found in his pocket (ts 61).

12 On the need to use electronic scales to weigh the drugs for his use, he said 'the gear is so expensive, it's - you know it works out to approximately 10 times the price of gold' (ts 57).

13 The respondent was aged 55 at the time of trial. He had multiple prior convictions for possessing prohibited drugs, the most recent of which was in February 2001.

14 Referring to the presumption in s 11 of the Act, the sentencing judge said:

I can only infer from the jury's decision that the burden of proof wasn't discharged; that is, that they weren't satisfied that you didn't have the intention to sell or supply [the prohibited drugs] to another.

But I cannot infer from the jury's findings any positive finding of fact that you had an intention to deal with the methylamphetamine in any particular way. So I'm going to sentence you on the most favourable findings [on] the evidence that I can because the evidence did not disclose any element of commerciality in relation to your possession of the drug[s] (ts 93 - 94).

15 All of the sentencing judge's factual findings favoured the respondent. The findings included the following:

1. at the time of the offence, the respondent was a methylamphetamine user who was taking the drug in order to deal with adverse side effects from fairly heavy duty chemotherapy (interferon) treatment for hepatitis C (ts 96);
2. the respondent's interferon programme began in August 2011 (ts 94);
3. the respondent was at all material times in receipt of a disability pension and, prior to August 2011, the respondent supplemented his income from busking in Northbridge on weekends, selling second hand goods at a market and selling motor vehicle parts obtained from car wrecks in his backyard (ts 94);
4. in the six months prior to the respondent's offence he was using methylamphetamine regularly and habitually, one to two points a day, to overcome the effects of interferon (ts 94);
5. the amount of $3,000 found in the respondent's house on the date of the offence was for the purpose of buying a car (ts 94);
6. whilst noting that the respondent had not given any evidence that the cash withdrawals made between August 2011 and February 2012 were for drug acquisition, the sentencing judge inferred that the respondent funded his drug purchases in that period using money withdrawn from his bank account (ts 94);
7. the respondent was able to purchase, on favourable terms, a larger quantity of methylamphetamine (7 grams) than he had previously purchased (ts 94 - 95).

16 The sentencing judge continued, saying that 4.34 grams:

[A]mounts to some 43 points which at the rate of use of 2 points a day would have last three weeks or so. But it was an amount which enlivened the deeming provision so you must be dealt [with] on the basis that you, as a matter of fact, had an intention to deal with at least some of these drugs other than by your own consumption.

And that having [been] said, the evidence of the circumstances of your possession doesn't reveal any dealing activity (ts 95).

17 Later he referred to 'the absence of commercial element to your possession' (ts 96). When read in the context of the reasons as a whole, the statement that the circumstances did not reveal 'any dealing activity' can only be a reference to selling any part of the drugs in his possession.

18 The grounds of appeal in the appellant's case are that the sentencing judge:

1. erred in law and in fact by sentencing the respondent as an offender who possessed methylamphetamine but with no intent to sell or supply which was contrary to the jury's verdict; and
2. erred in law by imposing a sentence with respect to the offence ... that was so inadequate as to manifest error.

19 The State's written submissions in support of ground 1 ([12] - [23]) travelled outside the terms in which the ground was cast. In the written submissions the State challenged the sentencing judge's fact finding, claiming that he was mistaken about, and failed to have regard to, several aspects of the evidence at trial establishing the respondent's degree of culpability and made a finding as to the source of the funds to pay for the purchase of the drugs in question which was contrary to his evidence at trial. It is the case that the trial judge's finding that after August 2011 the respondent financed his drug purchases from the money in his bank account is not consistent with the respondent's evidence at trial.

20 At the hearing of the appeal the State withdrew ground 1 and its written submissions in support of that ground. Upon reflection, the State had come to the view that the sentencing judge had made a positive finding that the respondent's intention was to supply, for no reward, some of the methylamphetamine in his possession to another and that it was open on the evidence as a whole to make such a finding. However, in support of the manifest inadequacy ground, the State continued to rely on [23] of its written submissions that:

[I]t is apparent from the sentencing remarks as a whole, and the sentence ultimately imposed, that his Honour effectively sentenced the respondent as if he did not have any intention to sell or supply the methylamphetamine, but rather possessed it for his personal use.

21 Where the offender to be sentenced has been found guilty following a trial by jury, the judge who presided at the trial must determine the facts relevant to the sentencing process: Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [5], [36]. Although the facts found by the sentencing judge must be consistent with the verdict of the jury, it is the sentencing judge who must find the facts rather than speculate about the facts that may or may not have been found by the jury: Cheung [9] - [11]. It is only the facts necessarily implicit in the verdict of guilty after trial (the core facts) that cannot be controverted in the sentencing process. In relation to other facts, a sentencing judge may not take facts into account in a way that is adverse to the interests of the offender unless those facts have been established beyond reasonable doubt. However, if there are circumstances which the judge proposes to take into account in favour of the offender, it is enough that they be proved on the balance of probabilities: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [27].

22 In this case, the verdict establishes that the jury was not positively satisfied, on the balance of probabilities, that the respondent did not intend to sell or supply any of the methylamphetamine in his possession. That may be because the jury positively disbelieved the respondent's evidence that he intended to consume all of the methylamphetamine or alternatively, were unpersuaded of the truth of his evidence on that subject. Either way, the effect is the same: the State is deemed to have established beyond reasonable doubt that the respondent had in his possession methylamphetamine 'with intent to sell or supply it to another' pursuant to s 11 of the Act. The verdict of the jury does not mandate or necessitate a positive finding of fact that the respondent intended to sell the methylamphetamine. It is for the sentencing judge to make any findings that the evidence as a whole permits.

23 A question of statutory construction arises. Does s 11 mandate a finding for sentencing purposes that the deemed intent is 'to sell or supply it to another' or is it open to the trial judge, if the evidence as a whole permits, to make a finding of either intent to sell or alternatively, supply.

24 The purpose of s 11 of the Act is to facilitate the conviction of an offender in possession of not less than a specified quantity of prohibited drug (in the case of methylamphetamine, 2 grams). Its purpose is not to constrain or confine the role of the sentencing judge in making findings of fact relevant to culpability. That being the case, s 11 should be construed as permitting but not mandating for sentencing purposes a compendious finding of an intent to 'sell or supply' prohibited drugs to another.

25 This construction is consistent with the approach taken by this court in reviewing sentences imposed for breach of s 6(1)(a) of the Act in which the existence and extent of commerciality associated with the offence is relied on as an aggravating factor for sentencing purposes. Dealing in drugs solely or primarily for commercial gain is an aggravating factor: The State of Western Australia v Andela [2006] WASCA 77 [14]. Drug users who offend to finance their drug habit also involves an element of commerciality and is not ordinarily mitigatory (Andela [15]).

26 The identification of the offender's precise intention under s 6(1)(a) of the Act is not an essential aspect of the sentencing process (Olbrich [13]), just as the quantity of the drug in the respondent's possession intended for his own use as distinct from its sale and/or supply is not an essential aspect: Duong v The State of Western Australia [2006] WASCA 110 [6]; Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55 [114] - [116]. If the evidence does not enable the sentencing judge to make positive findings on these matters, the offender must be sentenced for the offence he committed, which is in terms of 'sale or supply'.

27 Thus the sentencing judge was not obliged to sentence the respondent on the findings most favourable to him simply because of the sentencing judge's assessment that the State had not proved beyond reasonable doubt that the respondent intended to sell some of the methylamphetamine to fund his use.

28 It is not suggested that the sentencing judge had acted under a mistaken apprehension that he was required to make favourable positive findings for the respondent. I infer that he chose to do so based on his assessment of the respondent's credibility. That being so, this court's role is severely constrained. A credibility finding on the balance of probabilities can only be set aside on appeal where incontrovertible facts or uncontested testimony demonstrates that the judge's conclusions are erroneous or where the finding is glaringly improbable or contrary to compelling inferences: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.

29 If the evidence at trial was capable of establishing, beyond reasonable doubt, that the respondent had an intention to sell the methylamphetamine in his possession, the Fox v Percy test would be satisfied. Being solely reliant on the transcript, I would not take that step.

30 This court can only intervene if the sentencing judge made an express or implied material error of fact or law. A claim of manifest inadequacy relies on the implication of error. The sentence must be shown to be unreasonable or unjust, it being outside the range of a sound sentencing discretion.

31 In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.

32 The State claims the wrong type of sentence was imposed. Both below and in the appeal the State contended that a term of imprisonment was the only appropriate sentencing option but that it was open to the court to suspend that term.

33 The sentencing judge's reasoning for imposing a fine is captured in the following statement:

In your case, having regard to mitigating factors, which I find to be medical condition, and your relatively good record, I do not consider that - and most importantly the absence of commercial element to your possession, I do not consider that the sentence of imprisonment can be reached at all as a sentence which is the only appropriate sentence [96].

34 A fine is the type of sentence customarily imposed for possession of a prohibited drug. Further, there is a suggestion in the sentencing judge's reasons that, contrary to the verdict of the jury, he accepted that the respondent was in possession of the presumptive quantity of methylamphetamine solely for the purpose of medicating the adverse side effects of his ongoing hepatitis C treatment.

35 Such a claim was not pursued by the State. However, it is clear that the sentencing judge assessed the respondent's culpability for the offence as being equivalent to possession for personal use.

36 Moreover, the sentencing judge erred in concluding that the type of sentence customarily imposed for a breach of s 6(1)(a) of the Act, being a term of immediate imprisonment, depends upon establishing commerciality. That is not the case: Mishal v The Queen [2001] WASCA 328 [37]; The State of Western Australia v Berlingeri [2011] WASCA 242; Lynch v The State of Western Australia [2011] WASCA 243; Bond v The State of Western Australia [2011] WASCA 123; Attenborough v The State of Western Australia [2005] WASCA 132.

37 The sentencing principles for an offence of this kind are very well known. For the reasons discussed at length in The State of Western

Australia v Johnson [2010] WASCA 187, the imposition of a suspended term of imprisonment is, as a matter of fact, exceptional [23] - [25].

38 Further, the double jeopardy principle no longer applies in this State: Criminal Appeals Act 2004 (WA), s 41(4)(b); The State of Western Australia v Munda [2012] WASCA 164 [41(3)]. However, there is a residual discretion to decline to allow a State appeal: Munda v The State of Western Australia [2013] HCA 38.

39 The respondent tendered in the appeal an affidavit establishing that he had paid his fine and had remained (prohibited) drug free since being charged with the offence in question.

40 Broad consistency with sentences customarily imposed in this State mandates the conclusion that the only appropriate sentencing option in this case is a term of imprisonment. A fine is so far outside the range of a sound exercise of the sentencing discretion as to constitute an affront to the proper administration of justice. Further, there is nothing in the facts or circumstances of this appeal that would require or justify this court exercising the residual discretion to decline to allow the State appeal.

41 There being an appealable error, this court can resentence. Having regard to all relevant sentencing factors, the term of imprisonment should be 18 months. The remaining question is whether it is open to suspend the term of imprisonment. Having regard to the relatively small quantity of drugs in the respondent's possession, the sentencing judge's favourable finding which, to be consistent with the verdict, must be 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 has not used prohibited drugs since being charged, I would suspend the term for 12 months.

42 For these reasons, I would allow the State appeal, set aside the sentence imposed by the sentencing judge and in lieu thereof impose a term of imprisonment of 18 months, suspended for 12 months. If the respondent commits an offence within the period of suspension he is liable to be resentenced for this offence.