YLT -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 217 (24 December 2020)

The sentencing judge's sentencing remarks and the appellant's personal circumstances

1. The sentencing judge recounted in her sentencing remarks the facts and circumstances of the offending.
2. Her Honour said that the text messages on the appellant's mobile telephone 'clearly [showed the appellant] to be carrying on a commercial drug dealing business, selling drugs' (ts 27). Her Honour noted that the appellant was, at the time, addicted to methylamphetamine. Her Honour accepted that the appellant would have used at least part of the drugs in question himself. Her Honour noted that defence counsel had said 'that, effectively [the appellant was] selling [the drug] to fund [his] own use', but her Honour observed that the appellant 'had well in excess of what [he] required, even if [his] use was as high as [he] said it was' (ts 27).
3. The sentencing judge expressed serious doubts about the accuracy of the appellant's assertion to the author of the presentence report that he had been using about 3.5 g of methylamphetamine per day. However, her Honour reiterated that 'even with levels of between 2 and 3.5 g', the appellant had 'well in excess of what [he] required for personal use' (ts 27). The tick list indicated that the appellant was dealing in large quantities of the drug. The text messages showed that the appellant was 'a very busy dealer, dealing in amounts of more than just points or street level dealing'. Her Honour referred to the text message in which the appellant set out the prices he charged. Her Honour then said that '[t]he fact that [the appellant was] dealing commercially in this drug is an aggravating factor'. Her Honour added that '[t]he fact that [the appellant was] addicted to this drug [and was] involved in drug dealing in part to support [his drug addiction], and possibly also to support [himself] financially, does not provide much in the way of mitigation' (ts 28).
4. The appellant was aged 22 at the time of the offending and was 23 when sentenced. He was born outside Australia. The appellant's parents separated when he was a young child. The appellant and his father migrated to Australia. The appellant is an Australian citizen. He has the support of both of his parents.
5. The appellant completed the equivalent of year 10 at school. Since leaving school he has worked as a trade assistant, a scaffolder and for a company that manufactured drilling equipment. The appellant resigned his employment shortly before his arrest for the offence in question.
6. The appellant has a history of illicit drug abuse. He began using cannabis and then progressed to methylamphetamine. He had a relationship with a woman who also used illicit drugs, but the relationship broke down towards the end of 2018. The breakdown had a serious impact on the appellant's emotional well-being. After the relationship broke down the appellant was evicted from the home he had been sharing with his partner. The appellant slept in his car and moved from house to house. His methylamphetamine use escalated. He became depressed. Her Honour remarked that his depression and homelessness explained his offending but observed that 'really, none of this is mitigating' (ts 29). The appellant had used an illicit drug to treat his symptoms of depression.
7. The appellant has a criminal record, but prior to the offending in question he had only one conviction, namely a conviction in 2018 for driving a motor vehicle without an authority to drive. Since the offending in question he has had four other convictions. Two of those offences arose on the same day as the offending in question, being a conviction for possession of drug paraphernalia and a conviction for driving a motor vehicle with a proscribed illicit drug in his blood. The other offences were careless driving and breach of a family violence restraining order.
8. The sentencing judge said that the appellant's criminal record '[was] not aggravating in itself but it [did] mean [that her Honour could not] treat [the appellant] as a person of good character, despite the references [provided] to [her]' (ts 30).
9. After the appellant was arrested for the offence in question, he was prescribed medication for his depression. The medication has assisted him. The appellant has taken significant steps to address his illicit drug abuse. Her Honour received letters from members of the appellant's family. The letters confirmed that the appellant had ceased using illicit drugs and was remorseful for his offending conduct.
10. In May 2019, the appellant began a new relationship with a young woman who is not an illicit drug user. She is supportive of the appellant.
11. The sentencing judge said that it was to the appellant's credit that he had pleaded guilty at an early stage. His early plea and other matters indicated to her Honour that the appellant was genuinely remorseful. He had demonstrated a willingness to facilitate the course of justice.
12. Her Honour observed that a drug dealing offence of the kind committed by the appellant was 'one of the rare types of offence in which someone [who is] young and is essentially a first offender, which [was the appellant's] case, will not be spared immediate imprisonment' (ts 31).
13. The quantity of the methylamphetamine in question, namely 82.2 g, was almost three times the trafficable quantity and the offending included 'the element of commercial dealing' (ts 31).
14. The sentencing judge concluded (as defence counsel had properly conceded) that the only appropriate sentencing disposition for the appellant's offence was a term of immediate imprisonment. Her Honour allowed the appellant a discount of 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA), on the head sentence she would otherwise have imposed. Her Honour also took into account and allowed further discounts for the appellant's youth, his remorse, his willingness to facilitate the course of justice, the steps he had taken toward rehabilitation and other matters set out in the confidential schedule to these reasons. Subject to some limited exceptions, the confidential schedule will not be made available or published to any person or entity.
15. Her Honour then imposed the sentence of 4 years 8 months' immediate imprisonment, backdated to 25 August 2019, and made a parole eligibility order.

1. As we have mentioned, ground 1 alleges that the sentencing judge erred in failing to treat the appellant as a person of prior good character.
2. Counsel for the appellant submitted that, despite the appellant having been sentenced on the basis that he carried on a 'commercial drug dealing business', there was sufficient evidence before her Honour to establish that the appellant was of otherwise good character.
3. Counsel emphasised that the sentencing judge had described the appellant as 'essentially a first offender'; there were letters from members of the appellant's family who spoke well of him (and confirmed that the appellant had ceased using illicit drugs and was remorseful for his offending conduct); there were the other matters set out in the confidential schedule to these reasons; and the appellant had a positive work history.
4. At the sentencing hearing, the prosecutor acknowledged that the appellant did not have a 'previous history of similar offending' and that there was mitigation in the appellant's prior record (ts 25).
5. It was contended that her Honour erred in failing to sentence the appellant on the basis that he was of prior good character and that this status afforded him mitigation.

1. In Ryan v The Queen,[1] McHugh J made the following comments about the use of character evidence in the sentencing process:

It is necessary to distinguish between the two logically distinct stages concerning the use of character in the sentencing process. First, it is necessary to determine whether the offender is of otherwise good character. When considering this issue, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Because that is so, many sentencing judges refer to the offender's 'previous' or 'otherwise' good character.

If an offender's character was determined by reference to the offences for which he or she is being sentenced, he or she would seldom be 'of good character'. I hesitate to say 'never' because in Ziems v Prothonotary of the Supreme Court of NSW ((1957) [1957] HCA 46; 97 CLR 279) Kitto J thought that the circumstances giving rise to the conviction of a barrister for manslaughter did not 'warrant any conclusion as to the man's general behaviour or inherent qualities' (Ziems [1957] HCA 46; (1957) 97 CLR 279 at 299). His Honour also thought that the conviction was 'not inconsistent with the previous possession of a deservedly high reputation' (Ziems [1957] HCA 46; (1957) 97 CLR 279 at 299). Indeed, contrary to other members of this Court, Kitto J said that the barrister should not be suspended from practice while he was undergoing his gaol sentence (Ziems [1957] HCA 46; (1957) 97 CLR 279 at 300).

Secondly, if the offender is of otherwise good character, it is necessary to determine the weight that must be given to that mitigating factor. If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances. (original emphasis)

1. The notion that an offender is 'of otherwise good character' suggests, in some circumstances and in a sentencing context, that the offender's actions in committing the offence in question were 'out of character' and that the offender is unlikely to reoffend. The absence of previous convictions is regarded, for that purpose, as evidence of good character. On the other hand, numerous previous convictions may suggest that the offending in question was not 'out of character' for the offender or an 'uncharacteristic aberration'. See Ryan [29].
2. Further, the notion of 'good character', in a sentencing context, appears to suggest that a 'morally good' person is less deserving of punishment for an offence than a 'morally neutral or bad' person. See Ryan [30].
3. As McHugh J observed in Ryan [31], what makes an offender 'of otherwise good character' will necessarily vary according to the particular offender and it is impossible to state a universal rule.
4. In the present case, prior to the appellant committing the offence on 14 March 2019, the appellant had, on his own admission, been using, and therefore possessing, methylamphetamine for more than two years. The appellant's use and possession of methylamphetamine over that period was unlawful. Accordingly, he was not a law‑abiding citizen.
5. It was not in dispute, at the sentencing hearing, that the appellant's offending on 14 March 2019 was not an isolated, one‑off incident. Rather, prior to that date, the appellant had been carrying on a commercial drug dealing business. The offence in question was not 'out of character' for the appellant or an 'uncharacteristic aberration'.
6. Further, prior to 14 March 2019, the appellant had committed two offences. First, in January 2018, he drove a motor vehicle without an authority to drive. Secondly, in February 2019, he breached a family violence restraining order (although the conviction for that offence was not recorded until August 2019).
7. In addition, in May 2019, the appellant was convicted of driving a motor vehicle with an illicit drug in his blood and of possessing drug paraphernalia. Those offences arose from the circumstances of his arrest for the offence in question. In April 2019, the appellant committed the offence of careless driving for which he was convicted in May 2019.
8. It is true that, at the sentencing hearing, the prosecutor acknowledged that the appellant did not have a 'previous history of similar offending' and that there was mitigation in the appellant's prior record.
9. However, although the absence of previous convictions is ordinarily regarded, for sentencing purposes, as evidence of good character, that circumstance does not necessarily establish that the offender is 'of otherwise good character'. Whether the offender is 'of otherwise good character' must be determined having regard to all relevant facts and circumstances.
10. A 'limited' prior criminal record is not to be assimilated with positive good character. The existence of positive good character is always a mitigating factor because it indicates, generally, that there may be a lesser need for personal deterrence than is required where an offender has a prior criminal record. Also, positive good character may indicate that efforts directed to the offender's rehabilitation are likely to be successful. The relevance of a 'limited' prior criminal record depends upon the facts and circumstances of each case, including the nature of the prior criminal record and the nature of the offence for which the offender is to be sentenced. See Lawrie v The State of Western Australia.[2]
11. In the present case, the sentencing judge had regard to the fact that the appellant had only one minor prior conviction. Her Honour also had regard to the letters from members of the appellant's family, the other matters set out in the confidential schedule to these reasons and the appellant's positive work history. Her Honour stated that she had reduced the sentence she would otherwise have imposed to recognise the appellant's personal circumstances, the matters set out in the confidential schedule to these reasons, the appellant's genuine remorse and steps towards rehabilitation, and his willingness to facilitate the course of justice (ts 31 ‑ 32). We are satisfied that her Honour had regard to all relevant sentencing factors including all matters of mitigation.
12. None of the facts and circumstances relied upon by the appellant in support of ground 1, either individually or in combination, required her Honour to find that the appellant was 'of otherwise good character'. Her Honour did not err in failing to treat the appellant, for sentencing purposes, as a person of prior good character.
13. Ground 1 fails.

1. As we have mentioned, ground 2 alleges that the sentencing judge erred in finding that the commercial aspect of the appellant's drug dealing was aggravating.
2. Counsel for the appellant submitted that the alleged error is apparent from the following passage in her Honour's sentencing remarks:

The fact that you were dealing commercially in this drug is an aggravating factor. The fact that you were addicted to this drug yourself and were involved in drug dealing in part to support your drug [addiction], and possibly also to support yourself financially, does not provide much in the way of mitigation (ts 28). (emphasis added)

1. At the sentencing hearing, defence counsel had contended that although there was 'commerciality' in the appellant's drug dealing, he was not 'enriching himself' (ts 11). Defence counsel sought to contrast the appellant's drug dealing with a person who does not use drugs and who deals in drugs 'all for profit as a business' (ts 11). Defence counsel stressed that the appellant was not 'building up assets' through drug dealing (ts 12). The appellant was not 'paying off his debts' (ts 12).
2. Similarly, it was submitted to this court that the appellant was not dealing in drugs for the purpose of 'commercial gain'; that is, he was not carrying on a 'profit making enterprise'.
3. According to counsel for the appellant, there was no 'profit making aspect' to the appellant's offending because there was no evidence as to what the appellant paid for the drugs that were found in his possession. The absence of that evidence necessarily affected 'whatever profit, if there was any, [was] to be made' by the appellant. Further, according to counsel, there was no evidence of any profit having previously been made by the appellant.
4. It was submitted that the appellant was not engaged in 'a commercial enterprise over and above supporting his personal use of drugs'. Accordingly, so it was submitted, the nature of the appellant's drug dealing was not an aggravating factor.
5. Finally, counsel asserted that the appellant was not afforded the opportunity 'to challenge the conclusion that he was engaged in a commercial enterprise over and above supporting his personal use of drugs' [31].

1. The impugned statement by the sentencing judge must be read in the context of her Honour's sentencing remarks as a whole.
2. After summarising the facts and circumstances of the appellant's offending and referring to the indicia of drug dealing found by the police in the appellant's vehicle, her Honour said:

[The messages on your mobile telephone] clearly show you to be carrying on a commercial drug dealing business, selling drugs. You were, at the time, addicted to this drug, and I accept you would've used at least part of the drug yourself, but your counsel says that, effectively, you were selling to fund your own use, but you really had well in excess of what you required, even if your use was as high as you said it was.

I've read in the pre-sentence report that your addiction had spiralled out of control after the breakdown of your relationship, and you said you were using about three and a half grams of methylamphetamine per day. I have serious doubts about that, but even with levels of between two and three and a half grams, you had well in excess of what you required for personal use. You had a tick list which shows you were dealing in large amounts.

Your messages from your phone show that you were a very busy dealer, dealing in amounts of more than just points or street level dealing.

And, indeed, there is a message on your phone on page 28 of the brief where you set out the prices that you charged. $300 for a half-weight, $500 for a gram, $700 for a half-ball, and $1300 for a ball, which is 3.5 grams. The fact that you were dealing commercially in this drug is an aggravating factor. The fact that you were addicted to this drug yourself and were involved in drug dealing in part to support your drug [addiction], and possibly also to support yourself financially, does not provide much in the way of mitigation (ts 27 ‑ 28). (emphasis added)

1. In our opinion, it is apparent from the sentencing judge's sentencing remarks as a whole that her Honour's reference to the appellant 'dealing commercially' in methylamphetamine was to the following:

(a) the appellant had carried on a thriving business of selling methylamphetamine;

(b) the appellant had carried on that business for a significant period;

(c) the appellant's business included the sale of significant quantities of methylamphetamine;

(d) the appellant sold drugs for prices that enabled him not merely to recover the cost to him of acquiring the drugs he sold, but also to generate sufficient profit on the sale to enable him to fund the cost of acquiring the drugs he used personally;

(e) the appellant was not merely operating at the level of street dealing; and

(f) although part of the drugs the subject of the offence in question were for the appellant's personal use, the quantity of those drugs was well in excess of what the appellant required for his personal use.

1. Her Honour's finding that the appellant was 'dealing commercially' in methylamphetamine was consistent with defence counsel's concession that there was 'commerciality' in the appellant's drug dealing (ts 11).
2. Section 7(1) of the Sentencing Act provides that aggravating factors are factors which, in the court's opinion, increase the culpability of the offender.
3. In the present case, the appellant's offending occurred in the context of an ongoing and thriving drug dealing business which the appellant had carried on for a significant period. His business included the sale of significant quantities of methylamphetamine. He was not merely operating at the level of street dealing. Although he was a user-dealer, the appellant sold methylamphetamine at a profit to fund his personal use. The facts and circumstances we have mentioned formed the context in which the appellant's offending occurred. Those facts and circumstances, in combination, increased the appellant's culpability compared to offending against s 6(1)(a) of the MD Act which does not have comparable contextual features. It was open to the sentencing judge, having regard to the relevant context, to characterise the appellant's 'commercial dealing' in methylamphetamine as a factor which increased the appellant's culpability; that is, as a factor which aggravated his offending.
4. The appellant's complaint that he was not afforded the opportunity 'to challenge the conclusion that he was engaged in a commercial enterprise over and above supporting his personal use of drugs', is without merit. The facts and circumstances upon which the sentencing judge based her finding that the appellant was 'dealing commercially' in methylamphetamine were not in dispute. As we have stated, her Honour's reference to the appellant 'dealing commercially' in the drug was to the matters we have identified at [56] above. Also, as we have mentioned, her Honour's finding was consistent with defence counsel's concession that there was 'commerciality' in the appellant's drug dealing (ts 11). The appellant was not denied procedural fairness.
5. Ground 2 fails.

1. As we have mentioned, ground 3 alleges that the sentence of 4 years 8 months' immediate imprisonment imposed on the appellant was manifestly excessive.
2. Counsel referred to the following matters of mitigation:

(a) the appellant's plea of guilty at the earliest opportunity, which resulted in a 25% discount under s 9AA of the Sentencing Act;

(b) the appellant's youth at the time of the offending;

(c) the matters set out in the confidential schedule to these reasons;

(d) the appellant's 'limited' prior criminal record;

(e) the steps the appellant had taken towards rehabilitation;

(f) the appellant's 'difficult childhood', in particular, the absence of the appellant's mother which resulted in a poor reaction by the appellant to the breakdown in his own relationship;

(g) the appellant's current supportive relationship; and

1. Counsel also referred to the appellant's alleged 'prior good character' as a matter of mitigation. However, as we have stated, her Honour did not err in failing to treat the appellant, for sentencing purposes, as a person of prior good character.
2. It was submitted that, having regard to the significant matters of mitigation, the sentence of 4 years 8 months' immediate imprisonment was manifestly excessive.

1. A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
2. When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
3. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
4. The discretion conferred on sentencing judges is, of course, of fundamental importance. This court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.
5. At the material time, the maximum penalty for the offence of possessing a trafficable quantity of methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, was life imprisonment. See s 34(1)(a) of the MD Act. A trafficable quantity of methylamphetamine is 28 g. The maximum penalty for possession of 28 g or more of methylamphetamine, with intent to sell or supply it to another, was increased on 18 September 2017 from 25 years' imprisonment and/or a fine of $100,000 to life imprisonment.
6. The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. 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. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
7. We have had regard to the sentencing dispositions in a number of cases decided by this court since the maximum penalty for the offence committed by the appellant was increased to life imprisonment. See Musulin v The State of Western Australia;[3] McConnell v The State of Western Australia;[4] The State of Western Australia v Delaney;[5] Staiger v The State of Western Australia.[6]
8. We have also had regard to the sentencing dispositions in a number of cases decided by this court before the maximum penalty for the offence committed by the appellant was increased to life imprisonment. See Bosworth v The State of Western Australia;[7] Rigney v The State of Western Australia;[8] Cant v The State of Western Australia;[9] The State of Western Australia v Hunter;[10] Bui v The State of Western Australia;[11] Carlucci v The State of Western Australia.[12]
9. We have also had regard to the sentencing dispositions in a number of other cases cited by counsel for the appellant.
10. It is unnecessary to repeat the facts and circumstances or the sentencing outcomes in the previous cases which we have considered. There are some comparable features between some of those cases and the present case, but there are also distinguishing features.
11. The appellant's offending was very serious. It involved 82.2 g of methylamphetamine with a high degree of purity. The offending was not isolated or an aberration. The appellant had been carrying on a thriving business of selling methylamphetamine. The offence in question was committed in the course of that business. The quantity of 82.2 g was almost three times the trafficable quantity of methylamphetamine. This quantity was well in excess of what the appellant required for his personal use. The appellant was not merely operating at the level of street dealing.
12. The appellant was aged 22 at the time of the offending and was 23 when sentenced. His relative youth afforded him some mitigation for sentencing purposes.
13. As we have mentioned, in the course of considering ground 1, her Honour did not err in failing to treat the appellant, for sentencing purposes, as a person of prior good character.
14. However, there were a number of mitigating factors (in addition to the appellant's relative youth), namely his plea of guilty at the earliest opportunity; the matters set out in the confidential schedule to these reasons; the appellant's 'limited' prior criminal record; the steps the appellant had taken towards rehabilitation; the appellant's 'difficult childhood'; the appellant's current supportive relationship; and the appellant's genuine remorse.
15. The principal sentencing factors were appropriate punishment and general deterrence. Personal deterrence was also a relevant sentencing factor.
16. In our opinion, the sentence of 4 years 8 months' immediate imprisonment was broadly consistent with the sentences which have been imposed in reasonably comparable cases, having regard, in particular, to the increase in the maximum penalty on 18 September 2017 and the appellant's mitigating factors.
17. After evaluating the sentence imposed on the appellant, in the context of the maximum penalty; the facts and circumstances of the offending; the standards of sentencing customarily observed; the place which the appellant's offending occupies on the relevant scale of seriousness; the appellant's mitigating factors; and all other relevant sentencing considerations, we are satisfied that the sentence was not unreasonable or plainly unjust. In other words, the sentence was not manifestly excessive.
18. Ground 3 fails.

1. None of the grounds of appeal had a reasonable prospect of success. Leave to appeal should therefore be refused. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 [23] ‑ [25].

[2] Lawrie v The State of Western Australia [2009] WASCA 45 [17] (Owen, Wheeler & Miller JJA).

[3] Musulin v The State of Western Australia [2020] WASCA 18.

[4] McConnell v The State of Western Australia [2020] WASCA 59.

[5] The State of Western Australia v Delaney [2020] WASCA 93.

[6] Staiger v The State of Western Australia [2020] WASCA 99.

[7] Bosworth v The State of Western Australia [2007] WASCA 144.

[8] Rigney v The State of Western Australia [2008] WASCA 96.

[9] Cant v The State of Western Australia [2009] WASCA 188.

[10] The State of Western Australia v Hunter [2014] WASCA 87.

[11] Bui v The State of Western Australia [2014] WASCA 168.

[12] Carlucci v The State of Western Australia [2019] WASCA 37.