Court of Appeal (WA)|2009-08-06|Before: Martin CJ

THE STATE OF WESTERN AUSTRALIA -v- WICKHAM [2009] WASCA 137 (6 August 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- WICKHAM [2009] WASCA 137

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

File No : IND 198 of 2009, IND 417 of 2009

Criminal law - Sentence - Prosecution appeal - Three counts of possession of a prohibited drug with intent to sell or supply - Sentence of 4 years' imprisonment suspended for 2 years - Whether manifestly inadequate - Whether sentencing judge erred in failing to find respondent's intention in relation to charge of possession of methylamphetamine with intent to sell or supply - Whether remitter to District Court required

Matter remitted to District Court for rehearing of appellant's pleas of guilty before a different judge

CJ v The State of Western Australia [2009] WASCA 42

DAL v The State of Western Australia [2006] WASCA 246; (2006) 33 WAR 143

Hutchins v The State of Western Australia [2006] WASCA 258

Nguyen v The State of Western Australia [2009] WASCA 8

The Queen v Olbrich [1999] HCA 54; (1999) 1999 CLR 270

2 BUSS JA: I joined in the orders made by the court on 21 July 2009 for the reasons to be published by Miller JA.

3 MILLER JA: At the hearing of this appeal, the court allowed the appellant to add ground 3 to its grounds of appeal. This ground contended that the sentencing judge had erred in law in failing to make a finding as to the respondent's intent with regard to the count of possessing methylamphetamine with intent to sell or supply. It was a ground which was made out. Because the sentence imposed upon the respondent in relation to the count of possession of methylamphetamine with intent to sell or supply was integral to the overall sentence imposed upon the respondent, it was necessary to set aside each of the sentences and to remit the matter to the District Court for a rehearing of the respondent's pleas of guilty to the two indictments he faced. See DAL v The State of Western Australia [2006] WASCA 246; (2006) 33 WAR 143 at [53] - [58]; s 31(5)(b) of the Criminal Appeals Act 2004 (WA). The orders made by the court were:

The appeal be allowed on ground 3 of the grounds of appeal.
The sentences imposed on the respondent in the District Court at Perth on 24 February 2009 be set aside.
The two indictments (IND 198 of 2009 and IND 417 of 2009) to which the respondent pleaded guilty on 24 February 2009 be remitted to the District Court for rehearing of the respondent's pleas of guilty before a different judge.
The respondent be admitted to bail on the same terms and conditions as previously set in the District Court.
The respondent be remanded to the listing conference in the District Court to be heard on 30 July 2009.

4 The court undertook to publish reasons for the making of these orders and these are my reasons.

5 The two indictments faced by the respondent contained three counts. In indictment 198 of 2009, it was alleged that on 3 May 2008 at Kenwick the respondent had in his possession a prohibited drug (MDMA) with

intent to sell or supply it to another. On indictment 417 of 2009, there were two counts:

On 15 July 2008 at Gosnells, the respondent had in his possession a prohibited drug (MDMA) with intent to sell or supply it to another.
On the same date and at the same place, the respondent had in his possession a prohibited drug (methylamphetamine) with intent to sell or supply it to another.

6 The respondent pleaded guilty to these charges on 24 February.

7 At the sentencing hearing, the facts were placed before the court by the prosecutor. They revealed that, in relation to indictment 198 of 2009, the offence occurred in the following circumstances. At about 12.13 am on 3 May 2008, the respondent was observed driving a silver Nissan sedan in an easterly direction on Kenwick Link, Kenwick. He was stopped by police (in relation to another matter) and his vehicle was searched. A silver sunglasses case was located in the glove compartment and inside that sunglasses case was a small clipseal bag. The clipseal bag contained 22 blue ecstasy tablets (MDMA), which weighed 6.19 grams and had a purity of 28%. Police also located $550 in cash inside the sunglasses case. This was made up of eleven $50 notes. During the course of the search, police also located a small clipseal bag in the centre console. It contained two white ecstasy tablets.

8 When questioned about the ecstasy tablets, the respondent admitted to owning them and claimed that they were for a party that he was attending.

9 The facts in relation to the two counts on indictment 417 of 2009 were as follows. At about 12.45 pm on 15 July 2008, detectives executed a search warrant at an address in Gosnells. The respondent resided at this address with another person. The other person was the owner of the house. The respondent occupied one of the bedrooms in the house. During the search of the respondent's bedroom, a safe was located in the cupboard. The respondent was contacted by telephone and he provided the combination to the safe. It was then opened and searched. Inside the safe, there was a clipseal bag containing 69 green ecstasy tablets with a frog symbol imprint. These ecstasy tablets were later weighed and were found to weigh 14 grams, with a purity of 34%. There was a further clipseal bag in the safe. It contained the remnants of four white ecstasy tablets and one pink ecstasy tablet. They were weighed and found to weigh 0.55 grams and 0.2 grams respectively. The purity of these remnants was not tested.

10 A further search of the safe in the respondent's bedroom located a clipseal bag containing a white crystal substance. The substance was found to be methylamphetamine. It was weighed and found to weigh 5.26 grams, with a purity of 17%.

11 When interviewed on 6 August 2008, the respondent admitted to selling ecstasy to his friends and making a small profit from the sales. He claimed that the methylamphetamine was for his personal use. He said that he smoked approximately three to four 'points' of amphetamine each day.

12 Submissions were made on behalf of the respondent. A number of those submissions related to his antecedents and personal circumstances. Other submissions related to the circumstances in which the respondent had possession of the MDMA and methylamphetamine. Counsel for the respondent readily admitted that the ecstasy tablets (MDMA) were the subject of drug dealing, in that they were sold to others. It was said that the respondent made $5 per tablet and that the money he made supported his drug habit. The respondent's counsel said:

He had a habit with methylamphetamine. He acknowledges that in relation to methylamphetamine that he at times shared that with his friends but he never sold that. That was really something that, as he indicated to me, was expensive and you hung on to that as best you could and you never sold that because that was what he was addicted to. He got involved in selling the ecstasy to support that habit and we've got someone who was making $5 a tablet.

So when you look at the quantity involved, yes, it's a quantity of significance in respect of both the tablets and the amount of methylamphetamine, but your Honour will appreciate with the matters that come before you that it's nowhere near some of the quantities that come before the court. Indeed, when you look at the addiction that he had with methylamphetamine, one could well understand him having some five grams of methylamphetamine.

Can I say this also? Whilst there's no evidence of it, I think it's most probably common knowledge, and your Honour would accept, that the 17 per cent purity of methylamphetamine is in fact a purity that certainly users would use rather than be - cutting it down or doing anything like that to increase its value. He certainly wasn't into that because, as I've indicated, it was really, at the end of the day, from his point of view, for his own personal use.

13 At the close of the submissions made on behalf of the respondent, the prosecutor joined issue with the submission that the respondent was in possession of methylamphetamine for his own purposes and for occasional supply to his friends. The prosecutor tendered a number of notes. The prosecutor submitted that these notes revealed that the respondent was 'active in the sale of methylamphetamine'. He said:

[T]his was not an aberration, he was active in the sale of methylamphetamine. As I've stated, what was found at his house that day has the hallmarks of somebody that is dealing in methylamphetamine.

What the State says is when your Honour comes to the time to consider the 5.26 grams of methylamphetamine, the State says that was not for his use. Some of it might have been, but at the very least, this offending was a user-dealer. So, your Honour, that's what the State says your Honour should make of the notes as well as the cash and the MSM. It does suggest that he was active in dealing drugs.

14 When the notes were tendered, the sentencing judge asked whether counsel for the respondent had seen them. Counsel responded that he did not think he had seen them, but that he could not object to them being tendered. The sentencing judge asked what use he was to make of them, and it was then that the prosecutor made the submission which I have set out immediately above.

15 The prosecutor made it clear that the prosecution did not accept the contention that the methylamphetamine was for the respondent's own use, saying:

Your Honour, the State doesn't accept that the methylamphetamine was for his own use, given that scales were found, MSM was found and notes detailing quite significant drug deals. So the State just can't accept that submission.

16 To this submission the sentencing judge rightly made the following observation:

The plea of guilty to the counts is obviously on the basis that he accepts that he was selling and supplying as opposed to any pretence or defence that it was for his own personal use.

17 It must be remembered that the respondent had, in fact, pleaded guilty to possession with intent to sell or supply of each of two counts of MDMA and one of methylamphetamine. It was not a case in which he was contending that the methylamphetamine was solely for his personal use, but rather that it was partly for his personal use and partly for supply to his friends.

18 The sentencing judge recited the facts of the case by reference to the outline of facts which had been put before the court by the prosecutor. His Honour then made reference to the notes which had been made available to him and said:

I have been provided with a copy of those notes today for the purpose of sentencing. I have reviewed the notes and it seems that the notes would indicate that you were involved in the distribution of drugs to a greater extent than that which might appear from the offences which you have pleaded guilty to.

However, for the purpose of sentencing you I am going to sentence you on the basis of your plea of guilty to the offences before me, and although I have regard to the notes on the basis that they do evidence and confirm that you were selling and supplying, I am not going to sentence you on any inference that you were involved in a greater scale of selling and supplying. It is of course an aggravating factor that the offences in July last year were committed while you were on parole [sic bail] for the offence you committed on 3 May.

19 The notes which had been the subject of tender have been made available to this court in the appeal book. They appear to relate to drug-dealing. Some of those notes may be in different writing from others. Further, some of the notes refer to 'pills' and 'gear' and at least one of the notes refers to different colours, which would suggest reference to ecstasy tablets.

20 It is surprising that counsel for the respondent conceded the admissibility of these notes. There was no evidence as to who had written them or to what exactly they referred.

21 The notes were apparently utilised by the sentencing judge to confirm 'selling and supplying' on the part of the respondent, but what the respondent was selling and supplying was not specified. Further, the sentencing judge appears to have concluded that despite what was contained within the notes he was not going to sentence the respondent 'on any inference that [he was] involved in a greater scale of selling and supplying'. This approach was undoubtedly correct. The respondent could only be sentenced on the basis of the offence to which he pleaded guilty and not on the basis of anything contained within the notes which suggested a greater degree of drug dealing.

22 Unfortunately, the sentencing judge does not appear to have reached any conclusion as to whether the respondent was in possession of methylamphetamine only for his own use and for occasional supply to his friends, or whether he was in possession of methylamphetamine with intent to sell (or supply) it to others on a commercial basis.

23 The respondent was sentenced on indictment 198 of 2009 to imprisonment for 12 months and for the two counts on indictment 417 of 2009 to imprisonment for 2 years and 12 months respectively. An order was made that each of the terms of imprisonment should be served cumulatively, making an aggregate term of 4 years' imprisonment. The sentencing judge then suspended that term of imprisonment for a period of 24 months.

24 The appeal comes before the court by way of leave granted on 9 April 2009. Leave was granted on two grounds which are in the following terms:

The learned judge erred in law in suspending the total sentence of 4 years' imprisonment in that the resulting sentence:

(a) failed to adequately reflect the serious nature of the offences and the circumstances in which they were committed;

(b) failed to adequately reflect the need for specific and general deterrence;

(c) failed to adequately punish the Respondent; and

(d) reflected an undue regard for matters personal to the Respondent.

The learned sentencing Judge erred in law in imposing a sentence which was so inadequate as to manifest error having regard to the matters set out in Ground 1 and the standards of sentencing customarily observed for similar offences.

25 At the hearing of the appeal, leave was given to the respondent to add the following ground:

The learned sentencing judge erred in law in failing to make a finding as to the respondent's intent with regard to count 2 on indictment 417 of 2009.

26 It is convenient to deal first with ground 3 of the grounds of appeal.

27 In the passage which I have quoted from the sentencing judge's comments, it is clear that there was no finding about the respondent's intent in relation to count 2 on indictment 417 of 2009.

28 It is well established that if the prosecution seeks to have a sentencing judge take a matter into account in passing sentence it is for the prosecution to bring that matter to the attention of the judge and, if necessary, to call evidence about it: The Queen v Olbrich [1999] HCA 54; (1999) 1999 CLR 270, at [25]. Similarly, if the offender seeks to bring a matter to the attention of the judge it may be necessary to call evidence about it. The calling of evidence on behalf of an offender is only required if the asserted fact is controverted or if the judge is not prepared to act on the assertion: Olbrich, at [25]; Hutchins v The State of Western Australia [2006] WASCA 258 per McLure JA, at [25]; CJ v The State of Western Australia [2009] WASCA 42 per McLure JA, at [4].

29 A judge is required to give notice to the offender if the judge is not prepared to act on the uncontroverted assertion of the offender: CJ per McLure JA, at [4], and Nguyen v The State of Western Australia [2009] WASCA 8, at [20]. By giving notice, the sentencing judge enables the offender to adduce evidence on a fact in issue prior to sentencing: CJ per McLure JA, at [4].

30 In the present case, an assertion was made by counsel for the respondent but it was controverted by the prosecutor. It was controverted by submission and by the tender of materials. Whether those materials sufficiently controverted the assertion was not tested. Whether those materials were even admissible was not considered. No evidence was called on behalf of the respondent. It was for the respondent to determine whether or not he wished to call evidence: Olbrich, at [25].

31 Whatever the obligations of counsel for the respondent and the prosecutor respectively in relation to the calling of evidence, the sentencing judge failed to make a finding on the important question of the respondent's intent in relation to the count of possession of methylamphetamine with intent to sell or supply. Such a finding was required, as an assertion had been made by counsel for the respondent and it had been controverted by the prosecutor. Without such a finding, it is impossible to judge whether the sentence imposed on count 2 on indictment 417 of 2009 (a suspended term of imprisonment) was an open disposition of the matter.

32 Despite the fact that there was no dispute about the facts relating to indictment 198 of 2009 or count 1 on indictment 417 of 2009, the sentence in relation to count 2 on indictment 417 of 2009 was integral to the overall sentence imposed upon the respondent and integral to the decision to suspend the sentences of imprisonment.

33 The failure of the sentencing judge to make a finding about the respondent's intent in relation to the count of possession of methylamphetamine with intent to sell or supply was an error of law on his Honour's part. It has led to a miscarriage of justice, and the only remedy to correct that miscarriage is to remit the respondent's pleas of guilty on the two indictments to a different judge of the District Court for redetermination.

34 In the circumstances of the case, it is unnecessary to express any view on grounds 1 and 2 of the grounds of appeal, except to note that, in the context of the fact-finding process having miscarried, and upon assessment of the materials before this court most favourable to the appellant, I would have imposed a different sentence: see s 31(3) and s 31(4)(a) of the Criminal Appeals Act.

THE STATE OF WESTERN AUSTRALIA -v- WICKHAM [2009] WASCA 137 (6 August 2009)

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THE STATE OF WESTERN AUSTRALIA -v- WICKHAM [2009] WASCA 137 (6 August 2009)

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