Court of Appeal (WA)|2000-09-22|Before: Ms J, Wallwork J, As Wallwork J, Ipp J, Miller J

Thurling v The Queen [2000] WASCA 271 (22 September 2000)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THURLING -v- THE QUEEN [2000] WASCA 271

Criminal law - Sentence - Possession of cocaine and possession of LSD with intent to sell or supply - Bad record of drug offences - Whether sentencing Judge recognised attempts at reformation - Turns on own facts

Applicant : Unrepresented Criminal Appellant's Scheme

Donatelli v The Queen, unreported; CCA SCt of WA; Library No 980505; 3 September 1998

Gavin v The Queen (1992) 6 WAR 195

Knezevich v The Queen, unreported; CCA SCt of WA; Library No 7661; 18 May 1989

La Rosa v The Queen, unreported; SCt of WA; Library No 960628; 31 October 1996

Thompson & Owen v The Queen (1998) 105 A Crim R 260

1 IPP J: I have read the reasons to be published by Wallwork J. I agree with those reasons and the conclusions expressed by his Honour. I wish merely to add a brief comment of my own.

2 Counsel for the applicant properly conceded that the sentence imposed by the learned sentencing Judge fell within an appropriate range. It was not outside an appropriate sentencing discretion.

3 The essential complaint was that the learned sentencing Judge wrongly held that no mitigating circumstances were applicable. The argument rested on the statement made by the learned Judge "Now there are really no mitigating factors here because you weren't a cocaine addict. It was done deliberately and on a commercial basis ...".

4 In truth there were mitigating circumstances. They concerned the efforts the applicant had made to rehabilitate herself in the 12 months prior to sentencing. As Wallwork J has pointed out, the applicant moved away from Kalgoorlie where she had committed her offences and resided with her partner and his parents. She completed a work order and disposed of outstanding fines. She gave up the use of heroin and secured part-time employment.

5 Despite the fact that all these matters are plainly mitigatory, they had little effect when regard is had to the nature and seriousness of the offences, particularly the offence of being in possession of cocaine with intent to sell or supply. The quantity of cocaine involved was just over 16 grams and its value was about $500 a gram being in the aggregate approximately $8000. The applicant, at the time, was a trader in the drug. She was involved in the dissemination of this highly potent and addictive substance. The quantity of the drug and its value was not insignificant. In those circumstances, mitigatory factors have little weight. In my opinion that is what his Honour meant in saying "Now there are really no mitigating factors here because you weren't a cocaine addict". The deliberate supply of cocaine on a commercial basis should be regarded in the same light as the commercial supply of heroin. It is well recognised that in such cases personal circumstances and antecedents have little mitigatory force: Quach v R [1999] WASCA 210 and R v Ruich [1999] WASCA 84. In the circumstances I agree that there has been no error on the part of the learned sentencing Judge and the application should be dismissed.

6 WALLWORK J: On 11 November 1999 the applicant was convicted after a trial on one count of being in possession of cocaine with intent to sell it or supply it and on another count of being in possession of LSD with intent to sell or supply it. The value of the cocaine was approximately $8000, being just over 16 grams at about $500 a gram. There was also approximately $100 worth of LSD, being five dots or doses.

7 At the time the applicant was convicted, she was 25 years of age; in the words of her counsel: "A young 25 years of age". It was put to the learned sentencing Judge that although the applicant had a record of convictions in connection with drug offences, she had in the previous 14 months or so, reorganised her life and moved away from the scene of her offences in Kalgoorlie, back to Perth where she then resided with her partner and his parents. The applicant had completed a work order and disposed of some outstanding fines. She had given up the use of heroin and it was put that "she had made fairly strong inroads" into the problems which she had previously faced. In the 12 months prior to the trial she had secured part-time employment. Her partner worked full time in a responsible position.

8 Counsel put it to the learned sentencing Judge that the applicant's rehabilitation had not been an overnight process. The applicant had placed herself in an environment where she had some confidence. Her drug activities were to a large extent behind her.

9 The learned sentencing Judge appreciated that there had been an effort on the applicant's part to stay away from drugs during the previous year. However he was concerned that the evidence before him had indicated a planned and calculated distribution of a considerable amount of drugs to others on a commercial basis. It had not been to finance the applicant's habit.

10 His Honour accepted that the applicant had taken positive steps within the previous 12 months to reform herself. He said he would weigh that up when considering parole. It was put to his Honour that the efforts the applicant had made to rehabilitate herself should be encouraged; that the time she had spent in the offence-free environment was significant and that there was a risk that any significant punishment would act as a disincentive to rehabilitation. It was said that the applicant appeared before the court with the support of her partner and his parents. She had arrived at an age where she had come to some maturity.

11 The learned sentencing Judge was advised that including the offences for which the applicant was to be sentenced, the applicant over the years had been convicted of possession with intent to sell or supply five different drugs, being LSD, cocaine, cannabis, amphetamines and MDMA (ecstasy). The prosecution contended that there had been no evidence that the applicant had been addicted to cocaine and that there had been some sort of planned commercial operation to distribute cocaine.

12 In answer to the prosecution's submission concerning the five different drugs, counsel for the applicant told the learned Judge that it had been one appearance before the District Court in 1997 which had resulted in three of those convictions; that the November 1999 appearance was effectively the applicant's second District Court appearance. There had not been five consecutive appearances. It was submitted that the applicant had demonstrated, insofar as it had been possible for her to do, that she was committed to reforming her conduct. She had demonstrated that over an approximately 14 month period.

13 The applicant has a bad record so far as drugs are concerned. In 1994 she had been convicted of cultivating cannabis. In 1996 she was fined $1400 for possessing heroin. Seven months later in 1996, the applicant was convicted of possessing prohibited drugs. In March of 1997 she was convicted of possessing amphetamine with intent and on the same occasion possessing a quantity of cannabis with intent, possessing a quantity of heroin with intent and possessing MDMA. On that occasion the applicant had been sentenced to three sentences of 12 months imprisonment. The sentences were ordered to be served concurrently. The applicant was also sentenced to two sentences of 6 months imprisonment to be served concurrently, but cumulative upon the earlier 12 month sentence, making a total of 18 months imprisonment. The applicant was brought back to court in the next month and sentenced to two terms of 6 months imprisonment in connection with cannabis offences. For two further offences of possessing heroin she was sentenced to one term of 6 months imprisonment and another sentence of 3 months imprisonment to be served concurrently. On the same day the applicant was sentenced for two other offences of possessing prohibited drugs. She was sentenced to two 3 month terms, to be served concurrently with the other sentences.

14 Having been released on parole and having completed the term of the parole, the applicant then committed the two offences relevant to this application for leave to appeal. Those offences were both committed on 27 April 1998 at Boulder. Having been bailed for those offences, she apparently committed two further offences in September 1998, of possessing amphetamine and heroin respectively.

15 The substance of this application for leave to appeal against the sentences of 5 years imprisonment for the cocaine offence and the concurrent 12 months imprisonment for the LSD offence imposed on 11 November 1999 was that the applicant had demonstrated that she had reformed in the 14 months prior to her trial and that the learned trial Judge had erred in not recognising this in the sentencing process.

16 In his sentencing remarks, having discussed the facts, his Honour said amongst other things:

"You weren't at the top level but you were at a level whereby it was able to get onto the streets. Now, there are really no mitigating factors here because you weren't a cocaine addict. It was done deliberately and on a commercial basis and the previous record doesn't operate in mitigation, because you had been in prison for distributing other drugs, though not nearly as much, and shortly after your parole finished you set about dealing with this drug in this way. Because of that the courts must impose a deterrent sentence."

17 It was contended for the applicant that in saying that there were really no mitigating factors present, the learned sentencing Judge had erred because there was the mitigating factor of the applicant's obvious reformation within the previous 14 months. The applicant had ceased her criminal conduct and had removed herself from the environment in which she had been committing the offences. It was submitted that in the opportunity the applicant had had to restore a law-abiding mode of conduct, she had actually achieved it and had reformed herself.

18 In answer to that proposition it was put for the respondent that since committing the two relevant offences, the applicant had been convicted in the Kalgoorlie Court in September 1998 for possessing amphetamine and possessing heroin. It was submitted that the learned trial Judge had not erred and that the application should be refused.

19 I am sure that when his Honour said "Now there are really no mitigating factors here because you weren't a cocaine addict. It was done deliberately and on a commercial basis...." his Honour had not overlooked the reformation of the applicant. He was well aware of the comprehensive plea which had been made in mitigation by counsel on behalf of the applicant concerning her reformation. His Honour was referring to the factors surrounding the offences.

20 In Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ said at 671:

"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing Judge are well established...Of particular importance in the present case is the principle that a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice."

21 It was not contended by counsel for the applicant at the hearing of this application, that the sentences imposed in this case were outside the range ordinarily appropriate for the relevant offences.

22 In my opinion there was no error by the learned sentencing Judge. His Honour was very much aware of the background of the applicant and her efforts at reformation. He had also been addressed on the remarks of Justice Anderson in Bellissimo v The Queen (1996) 84 A Crim R 465 at 65, where his Honour had referred to the major sentencing considerations for offences of trafficking in dangerous drugs of addiction, as being general and personal deterrence, the main object being to stop people dealing in those drugs.

23 In my view the ground of appeal has not been made out. I would refuse the application for leave to appeal.

24 MILLER J: The applicant was sentenced to imprisonment for 5 years for possession of cocaine with intent to sell or supply and imprisonment for 12 months for possession of LSD with intent to sell or supply. The sentences were ordered to be served concurrently. The cocaine found in the possession of the applicant was 16 grams in weight and was valued at approximately $8000. The LSD consisted of five dots worth approximately $100.

25 The applicant was a 25-year-old woman with a bad record for drug offences, including convictions in March 1997 for possession of amphetamines, cannabis and heroin with intent to sell or supply and possession of MDMA. She was sentenced to an effective term of 18 months' imprisonment in relation to these offences. Six months later she was sentenced to another term of 6 months for a string of lesser drug convictions. The applicant had completed parole in relation to those sentences before committing the offences of possession of cocaine and LSD with intent to sell or supply.

26 The applicant sought leave to appeal against the sentences of 5 years and 12 months respectively on the basis that she had demonstrated within the period prior to the imposition of those sentences on 11 November 1999 that she had reformed. It was contended that the learned trial Judge had erred in failing to recognise her reformation in the sentencing process. In particular, it was argued that the learned Judge had erred in stating that there were "really no mitigating factors here because you weren't a cocaine addict. It was done deliberately and on a commercial basis".

27 The appeal turns on this simple point. There was no argument on the application that the sentences imposed by the learned Judge were themselves outside the range ordinarily appropriate for offences of the type committed by the applicant, but only that his Honour had failed to take into account the applicant's apparent reformation within the 14 months prior to the hearing and her removal from an environment in which she had constantly committed drug offences. She was said to have become a law-abiding citizen and that this was a powerful mitigating factor in the sentencing process.

28 The learned Judge did not make any specific reference to the applicant's reformation. He did say that there were "really no mitigating factors" present but in this regard the word "really" is important. Clearly his Honour's experience as a sentencing Judge led him to appreciate that there were general mitigatory factors (the applicant's age, general reformation in the 14 months prior to sentence and her withdrawal from the drug environment) but what his Honour appreciated was that in cases of this nature matters personal to the offender will often be subsumed as a less important criterion than that of general deterrence. As was pointed out by Anderson J in Bellissimo v The Queen (1996) 84 A Crim R 465 (at 469) the courts must, in sentencing persons for offences of the type committed by this applicant, give effect to a genuine public concern. Matters personal to an offender will often in such cases play a secondary role in the sentencing process. Instead, questions of general deterrence will play a greater role. This was also made clear in this Court in Robertson v The Queen (1989) 44 A Crim R 224 where (at 228) the Court stated in unequivocal terms that it has long been recognised that illegal drug abuse has become a serious problem in Australia and the courts have emphasised that in this class of crime deterrence is the main consideration. The Court pointed out that in the most serious cases personal mitigating factors must give way to the need for general deterrence.

29 Rehabilitation is always a factor that must be taken into account, but there is nothing to suggest that the learned Judge overlooked that factor in the course of the sentencing process. The sentence was unexceptionable and the learned sentencing Judge took into account all relevant factors. In my view the application for leave to appeal should therefore be refused.

Thurling v The Queen [2000] WASCA 271

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Judgment (42 paragraphs)

Thurling v The Queen [2000] WASCA 271 (22 September 2000)

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