Court of Appeal (WA)|2012-02-08|Before: Buss JA

TXT -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 28 (8 February 2012)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : TXT -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 28

Appeal - Criminal law - Appeal against sentence - Numerous counts of dealing in prohibited drugs - Total effective sentence of 2 years 6 months' immediate imprisonment - Early pleas of guilty - Appellant gave significant assistance to and cooperated with law enforcement agencies - Sentencing discount of 50% for this assistance and cooperation - Whether appellant's assistance and cooperation rendered him an unsuitable vehicle for general deterrence - Whether sentencing judge erred in failing to suspend the sentences - Whether totality principle infringed

Application for an extension of time to appeal dismissed

A Child v The State of Western Australia [2007] WASCA 285

Bellissimo v The Queen (1996) 84 A Crim R 465

Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998)

Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152

Cartwright v The State of Western Australia [2010] WASCA 4

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Fogg v The State of Western Australia [2011] WASCA 11

Hobby v The State of Western Australia [2009] WASCA 108

Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1

McDougall v The State of Western Australia [2009] WASCA 232

McKey v The State of Western Australia [2010] WASCA 210

MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149

Scognamiglio v The Queen (1991) 56 A Crim R 81

Skipworth v The State of Western Australia [2008] WASCA 64

Smith v The State of Western Australia [2010] WASCA 176

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

The State of Western Australia v Skaines [2006] WASCA 160

The State of Western Australia v Tran [2008] WASCA 183

1 BUSS JA: The appellant was convicted, on his pleas of guilty in the District Court, of 19 counts in an indictment. All of the counts involved drug offences. There were 15 counts of offering to sell or supply a prohibited drug, namely MDMA, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (the Act); three counts of conspiring to possess a prohibited drug, namely MDMA, with intent to sell or supply to another, contrary to s 6(1)(a) read with s 33(2)(a) of the Act; and one count of supplying a prohibited drug, namely MDMA, to another, contrary to s 6(1)(c) of the Act.

2 The sentencing judge imposed an individual sentence of 12 months' immediate imprisonment on each of counts 1, 2, 4, 6, 9, 11, 12 and 15; 18 months' immediate imprisonment on count 18; and 2 years' immediate imprisonment on each of counts 3, 5, 7, 8, 10, 13, 14, 16, 17 and 19.

3 Her Honour ordered that the sentence for count 18 (18 months) be served cumulatively on the sentence for count 1 (1 year), and that the sentences for all other counts be served concurrently with each other and concurrently with the terms for counts 1 and 18. The total effective sentence was therefore 2 years 6 months' immediate imprisonment.

5 The appellant has applied to this court for an extension of time to appeal, and leave to appeal, against his sentence.

6 An extension of time is needed because the appeal notice was filed seven days after the expiry of the prescribed period.

7 The facts and circumstances of the offending, extracts from the sentencing judge's sentencing remarks, and material from the expert reports before her Honour, are set out in the schedule to these reasons. The schedule will be the subject of a confidentiality order. It will not be published except to the appellant and the State and their respective legal representatives.

8 The appellant relies on two proposed grounds of appeal.

9 Ground 1 alleges that the sentencing judge erred in law in failing to take relevant matters into consideration in determining whether to suspend the sentences of imprisonment.

10 Ground 2 alleges that her Honour erred in law in imposing 'a sentence [that] was manifestly excessive'. It became apparent, in the course of oral argument, that counsel wanted to contend that the individual sentences were manifestly excessive and that the total effective sentence infringed the first limb of the totality principle.

The appellant's submissions on the proposed grounds of appeal

11 Counsel for the appellant argued that the sentencing judge did not have any regard to what he submitted was 'the overwhelming likelihood that [the appellant] will not reoffend'.

12 Also, it was submitted that her Honour did not have any regard to the 'unsuitability of the appellant's case for the purpose of general deterrence'. Counsel said that the appellant was 'less appropriate as a vehicle for general ... deterrence' by reason of:

(a) the nature and extent of his cooperation with the police; and

(b) the delay between the offending and the sentencing (a period of about 2 years), this being attributable to the provision of the cooperation.

13 According to counsel for the appellant, her Honour should have suspended the sentences of imprisonment. Counsel emphasised the appellant's personal circumstances and various mitigating factors.

14 The maximum available penalty for the offence of offering to sell or supply, or selling or supplying, a prohibited drug is 25 years' imprisonment or a fine of $100,000 or both. See s 6(1)(c) read with s 34(1)(a) of the Act.

15 The maximum available penalty for the offence of conspiring with another to possess a prohibited drug, with intent to sell or supply to another, is 20 years' imprisonment or a fine of $75,000 or both. See s 6(1)(a) and s 33(2)(a) read with s 34(1)(b) of the Act.

16 A failure by a sentencing judge expressly to refer to all relevant factors in sentencing remarks does not necessarily establish a failure to consider those factors. See Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1 [27] (Steytler P & McLure JA); Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998). It is difficult to make out that a sentencing judge has failed to take into account a relevant consideration. See McKey v The State of Western Australia [2010] WASCA 210 [5] (McLure P, Buss JA & Mazza J agreeing).

17 In the present case, the sentencing judge referred to the appellant's personal circumstances, including his pleas of guilty at the earliest reasonable opportunity, his youth, and the absence of any relevant prior criminal record. Also, her Honour referred to the various expert reports, including Dr Coxon's assessment that the appellant was at a 'low risk of re-offending' (ts 50). Her Honour prefaced the imposition of the individual sentences of imprisonment by stating that she was 'taking into account all of those factors' (ts 50). Although her Honour then specifically mentioned a number of mitigating features, the absence of a specific reference to Dr Coxon's assessment, as a mitigating feature, does not establish that her Honour failed to take it into account. Further, when her Honour was deciding whether she should suspend the terms of imprisonment, she said that she had considered 'all of the other matters that have been raised' (ts 51). These other matters necessarily included Dr Coxon's assessment as to the risk of recidivism.

18 The material before her Honour merely established, at best, that the appellant was at a low risk of reoffending. It did not make out the assertion by counsel for the appellant that there was an 'overwhelming likelihood' that the appellant would not reoffend.

19 On a fair reading of the sentencing judge's sentencing remarks, and an evaluation of the sentencing outcome in the context of all relevant facts and sentencing considerations, I am satisfied that her Honour did not fail to take into account Dr Coxon's assessment that the appellant was at a low risk of reoffending.

20 The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. See Bellissimo v The Queen (1996) 84 A Crim R 465, 471 (Anderson J). The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. See Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [67] - [70] (Gaudron, Gummow & Hayne JJ); Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [50] (McLure J); Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [52] (Steytler P, Wheeler & McLure JJA agreeing). The degree of purity is often regarded as significant. See The State of Western Australia v Tran [2008] WASCA 183 [9] (Steytler P). Matters personal to an offender will almost always be given reduced weight. See Bellissimo, (469) (Rowland J); Tulloh [12], [43], [46].

21 Substantial discounts in sentencing may be allowed to recognise the value of an offender's cooperation with law enforcement agencies. When deciding upon the appropriate level of discount in a particular case, the court must consider the value of the offender's cooperation and the risk to his or her personal safety, while ensuring that the discount does not result in a sentence which is, in all the circumstances of the offending and the offender, obviously inadequate or an affront to community standards.

22 As Wheeler and McLure JJA noted in A Child v The State of Western Australia [2007] WASCA 285, the allowing of discounts in sentencing for cooperation with law enforcement agencies reflects two underlying principles:

One is that assistance to the authorities, and the offer of future assistance, may be one of the most unequivocal and practical demonstrations of genuine remorse and rehabilitation. The other is that there is a clear public interest in giving a significant discount, since it is to the advantage of ordinary law-abiding citizens that crime should be detected and successfully prosecuted [12].

23 The applicable principles, including the proper approach in determining the nature, extent and value of an offender's past and promised future cooperation with law enforcement agencies and the appropriate level of any discount on his or her sentence, were examined by this court in MXP v The State of Western Australia [2010] WASCA 215; (2010) 41 WAR 149.

24 If an offender suffers from a mental disorder or abnormality, general deterrence as a sentencing factor is ordinarily given relatively less weight than in other cases involving comparable offending, because the offender is not an appropriate medium for making an example to others. See R v Anderson [1981] VicRp 17; [1981] VR 155, 160 - 161 (Young CJ & Jenkinson J); Scognamiglio v The Queen (1991) 56 A Crim R 81, 86 (Grove J, Clarke JA & Newman J agreeing); R v Letteri (Unreported, NSWCCA, 18 March 1993) page 12 (Badgery-Parker JA, Gleeson CJ & Sheller JA agreeing); R v Engert (1995) 84 A Crim R 67, 71 (Gleeson CJ, Allen & Sully JJ agreeing).

25 There is, of course, a distinction between mental illness that has been self-induced (for example, by the ingestion of alcohol or illicit drugs) and mental illness that has not been self-induced. See Smith v The State of Western Australia [2010] WASCA 176 [69] - [75] (Buss JA, McLure P & Mazza J agreeing).

26 In R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, Wood CJ at CL explained the rationale for the sentencing principle that if an offender suffers from a mental disorder or abnormality (that has not been self-induced), general deterrence should ordinarily be given relatively less weight:

The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice [254].

See also R v Wright (1997) 93 A Crim R 48, 50 - 51 (Hunt CJ at CL, Gleeson CJ agreeing generally & Hidden J agreeing); Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243 [62] (RA Hulme J, Macfarlan JA & Johnson J agreeing).

27 Ultimately, however, in the application of this principle, 'it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise': Letteri (page 14), adopted and emphasised by Gleeson CJ in Engert (71).

28 The rationale for allowing a sentencing discount for cooperation with law enforcement agencies is fundamentally different from the rationale for giving less weight to general deterrence in sentencing an offender who suffers from a mental disorder or abnormality (that has not been self-induced). The rationale, in the case of cooperation with law enforcement agencies, is the demonstration of genuine remorse and apparent rehabilitation and, also, the public interest in the detection and successful prosecution of crime. The rationale, in the case of an offender who suffers from a mental disorder or abnormality (that has not been self-induced), is that the mental disorder or abnormality has impaired his or her mental functioning to such an extent as to reduce the offender's blameworthiness or culpability for the offending behaviour.

29 In the present case, the expert evidence before the sentencing judge did not establish that when the offending occurred the appellant was suffering from a mental disorder or abnormality which reduced the blameworthiness or culpability of his criminal conduct.

30 The relevance and significance (if any), for sentencing purposes, of delay between the commission of an offence and the imposition of sentence was considered by this court in Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164.

31 In the present case, there was no information before her Honour that justified mitigation of the sentencing disposition on account of delay.

32 It is not reasonably arguable, in the present case, that the appellant was an inappropriate or less appropriate medium for general deterrence.

33 The nature and extent of the appellant's cooperation with the police was recognised in the very substantial discount which the sentencing judge allowed for this cooperation (namely, a 50% discount on the total effective sentence that she would otherwise have imposed) (ts 50).

34 In my opinion, separate and distinct guiding principles have been developed in relation to sentencing discounts for cooperation with law enforcement agencies, and for delay. No proper basis exists for allowing a further discount on the ground that cooperation or delay makes the offender an inappropriate or less appropriate medium for general deterrence. The acceptance of the proposition advanced by counsel for the appellant would involve 'double counting', and result in an excessive and unjustifiable reduction in sentence.

36 By s 6(4) of the Sentencing Act 1995 (WA):

A court must not impose a sentence of imprisonment on an offender unless it decides that -

(a) the seriousness of the offence is such that only imprisonment can be justified; or

(b) the protection of the community requires it.

37 A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended imprisonment. See s 39(2) and s 39(3) of that Act. The sentencing judge must be positively satisfied that it is not appropriate to suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] - [14] (McLure JA), [58] (Buss JA); Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P, Mazza J agreeing).

38 The discretion to suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84]. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86].

39 Ordinarily, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for a serious drug offence. See Cartwright v The State of Western Australia [2010] WASCA 4, where McLure P (Owen & Wheeler JJA agreeing) said [9]:

The incentives, financial and otherwise, to participate in the illicit drug distribution network must be counterbalanced by a clear and certain understanding that such involvement will ordinarily result in a penalty of immediate imprisonment: Western Australia v Saxild [2008] WASCA 156 [12]. Thus, the imposition of a sentence other than immediate imprisonment for such an offence is, as a matter of fact, exceptional: Western Australia v Andela [2006] WASCA 77 [17]; Saxild [13].

40 Counsel for the appellant referred to numerous decided cases in support of his argument that the individual sentences imposed in the present case were manifestly excessive and that the total effective sentence infringed the first limb of the totality principle. The cases included The State of Western Australia v Andela [2006] WASCA 77; The State of Western Australia v Skaines [2006] WASCA 160; and McDougall v The State of Western Australia [2009] WASCA 232. I have perused the decisions cited on behalf of the appellant. I have also examined other decided cases including Hobby v The State of Western Australia [2009] WASCA 108.

41 The appellant's offending was, without doubt, very serious. In particular:

(a) The appellant was engaged in a drug dealing enterprise for profit.

(b) The sentencing judge found that he was 'high up' in the level of MDMA distribution, although not at the top of the scale (ts 46).

(d) Her Honour found that during the period of the offending in question there was no causal relationship between the appellant's psychiatric condition on the one hand and his offending on the other (ts 48 - 49).

(e) The amounts of money discussed in the intercepted telephone calls and SMS messages were significant, being in the order of $100,000 in total.

(f) The numbers of tablets discussed were substantial, being in the order of 8,000 in total.

(g) Her Honour found that the offending was 'persistent' (ts 45), and occurred over a period of about five weeks.

(h) The offending during this period was not aberrant behaviour; that is, the appellant was dealing in drugs before the police intercepted his telephones. Although this does not aggravate the appellant's offending and he is not to be punished for it, this circumstance does indicate that the offending in question was not isolated or out of character.

42 The appellant's personal circumstances, including his prospects of rehabilitation, were favourable. However, matters personal to an offender will usually be a secondary consideration to questions of general deterrence in the sentencing process for offences of this kind. Save in exceptional cases, terms of immediate imprisonment are imposed for serious offences involving drug dealing. Although the appellant was threatened by others involved in the illicit drug industry, this is a well-known occupational hazard.

43 After imposing the individual sentences for the 19 counts, the sentencing judge considered whether it was open to suspend the terms. Her Honour concluded that suspension was not open because 'the nature of the offences are just too serious' (ts 51). She explained:

I've considered the nature of the offences, the circumstances of the offending and all of the other matters that have been raised, but this is not

a case where I can suspend the sentence. In my view, it would not be appropriate (ts 51).

44 When all of the relevant facts and sentencing considerations are assessed and weighed, it is readily apparent that the present case is not exceptional or extraordinary. A suspension of the terms of imprisonment imposed by the sentencing judge was not appropriate. The seriousness of the offending precluded suspension. Indeed, it is not even reasonably arguable that her Honour should have suspended the terms. Immediate imprisonment was not only well deserved, but necessary. The total effective sentence could not reasonably be described as high. It was certainly not severe.

45 I am satisfied that none of the individual sentences was unreasonable or plainly unjust when each of them is evaluated in the context of the maximum available penalty, the level of seriousness of the circumstances of the appellant's offending, the sentences customarily imposed for the offences, and the appellant's personal circumstances.

46 Also, I am satisfied that the total effective sentence of 2 years 6 months' immediate imprisonment was not disproportionate to the overall criminality of the appellant's offending, viewed in its entirety, and after having regard to the appellant's personal circumstances, including his cooperation with the police, his pleas of guilty at the earliest reasonable opportunity, and the other mitigating factors.

48 Neither of the proposed grounds of appeal has a reasonable prospect of success. I would therefore dismiss the application for an extension of time to appeal.

TXT -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 28 (8 February 2012)

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TXT -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 28 (8 February 2012)

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