Bailey v The State of Western Australia

[2016] WASCA 10

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   BAILEY -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 10

CORAM:   NEWNES JA

MAZZA JA

HEARD:   17 DECEMBER 2015

DELIVERED          :   13 JANUARY 2016

FILE NO/S:   CACR 196 of 2015

BETWEEN:   ADAM CLIFFORD BAILEY

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :SCOTT DCJ

File No  :IND 412 of 2015

Catchwords:

Criminal law - Application for leave to appeal against sentence - Possession of MDMA with intent to sell or supply - 16 months' immediate imprisonment - Manifest excess

Legislation:

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

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Fenton v The State of Western Australia [2015] WASCA 255

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

1. NEWNES JA:  I agree with Mazza JA.

2. MAZZA JA:  This is an application for leave to appeal against sentence.

3. The appellant was convicted in the District Court after his plea of guilty of one count of possession of a prohibited drug, namely MDMA, with intent to sell or supply it to another contrary to s 6(1)(a) of Misuse of Drugs Act 1981 (WA).

4. On 22 October 2015, he was sentenced to 16 months' immediate imprisonment, backdated to commence on 30 July 2015, with eligibility for parole.

5. The sole proposed ground of appeal alleges that the sentence was manifestly excessive.  Originally, the ground of appeal alleged that the sentence was manifestly excessive as to both its length and type.[1]  However, at the hearing of this application, the appellant conceded that the length was 'not … inappropriate' (appeal ts 2).  In essence, it is the appellant's contention that his Honour impliedly erred by concluding that immediate imprisonment was the appropriate sentencing option.

   [1] Appeal notice filed on 30 October 2015.

Background

Facts of the offending

1. The facts of the offence may be shortly stated.  At about 7.30 am on 21 May 2014, the appellant was driving his Holden Commodore sedan in Mirrabooka.  The vehicle was stopped by police.  The occupants and the vehicle were searched.  Inside the car, the police located the appellant's wallet which contained 18 white tablets.  Those tablets were seized and subsequently analysed and found to contain MDMA.  The total weight of the tablets was 4.46 g.  The appellant admitted at the scene that the drugs were his.  The police also seized the appellant's mobile telephone.  Text messages on the mobile telephone were consistent with previous drug dealing.  As the sentencing judge put it, 'at the relevant time … [the appellant] was involved in the sale and supply of drugs of a high order' (sentencing remarks ts 2).

2. Initially, the appellant denied that he intended to sell any of the MDMA.  However, just before a scheduled trial of issues, he accepted that he intended to sell some of the tablets for profit.  The appellant was

sentenced on the basis that he intended to sell some of the tablets and use some himself (sentencing remarks ts 2).

Appellant’s personal circumstances

1. At the time of sentencing, the appellant was 32 years of age.  He has experienced significant trauma, both as a child and as an adult.  The nature of his childhood trauma is set out in the psychological report and does not require repetition.  He served in the Army for four years.  During his service, he was exposed to a number of traumatic incidents in East Timor and on Ashmore Reef.  The appellant also lost seven close friends in the Bali bombing with whom he was associated as a playing member of the Kingsley Football Club.  Not only was he distressed by their tragic deaths; he was also unable to attend their funerals due to his Army deployment. 

2. Drug and alcohol abuse led to his discharge from the Army.  Since then, he has not been in any settled employment and has mostly lived on Centrelink benefits.  While on bail for the present offence, he was working part‑time as a delivery driver's offsider.

3. The appellant has a long history of illicit drug use.  This worsened after losing his friends in the Bali bombing.  He told a psychologist that for the last nine years he estimated that he had been using 2.5 g of methylamphetamine a day.  The psychological report indicates that the appellant is very significantly dependent upon illicit substances, using them 'for emotional distancing and anxiety and trauma reduction' (psychological report dated 20 April 2015, p 6).  In the opinion of the psychologist, he is highly impulsive and has poor consequential thinking and judgment.  The appellant has expressed a willingness to engage in drug rehabilitation, but, according to the psychologist, the appellant is 'pre‑contemplative' in his motivation (psychological report dated 20 April 2015, pp 3 ‑ 4).  He has sought counselling from a veterans' counselling service.  The author of the pre‑sentence report noted that the appellant has 'now started to make some small steps towards positive behaviour and changes' (pre-sentence report dated 13 May 2015, p 4). 

4. The appellant has a minor criminal history, including a conviction for stealing as a servant and several traffic offences.  He has not previously been convicted of any drug offence and has not served a term of imprisonment.  His parents are supportive of him.  References tendered to the sentencing judge showed that the authors, fellow Army veterans, were willing to assist the appellant towards his rehabilitation.

Consideration of the proposed ground of appeal

1. The focus of the appellant's oral submissions was upon his personal circumstances; in particular, his efforts towards rehabilitation and the support that he has within the community from both his family and other Army veterans.  His contention is that a consideration of those factors, when weighed with the relatively small quantity of MDMA found in his possession, should have led his Honour to impose a suspended imprisonment order. 

2. This court's power to intervene depends upon the appellant demonstrating a material express or implied error of fact or law.  A claim of manifest excess alleges that error may be inferred from the sentence itself.  To make good such a ground of appeal, the appellant must establish that the sentence was, having regard to all of the circumstances of the case, unreasonable or plainly unjust.  The orthodox approach to manifest excess is to examine the sentence against the maximum penalty for the offence (in this case, 25 years' imprisonment and/or a fine of $100,000); the standards of sentencing customarily imposed; the place which the criminal conduct occupies on the scale of seriousness; and the appellant's personal circumstances. 

3. The sentencing principles for offences of the type committed by the appellant were explained by McLure P in The State of Western Australia v Johnson [2010] WASCA 187 [16] ‑ [17], [23] and [25] in these terms:

   In Cartwright v The State of Western Australia [2010] WASCA 4 [8] ‑ [10], the relevant principles relating to suspension of a term of imprisonment were identified as follows:

   'Section 39(2) of the Sentencing Act 1995 (WA) (the Act) sets out the various sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Act a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term; the power to suspend is not confined by reference wholly, mainly or specially to the effect that suspension would have on the rehabilitation of a particular offender: Dinsdale v The Queen (2000) 202 CLR 321 [18], [26], [84], [85].

   However, as noted in Collins v The State of Western Australia [2007] WASCA 108 [17], the sentencing discretion is not to be exercised in a vacuum. A sentencing judge must impose a type of sentence that falls within a sound discretionary range. The decisions of this court and its predecessor provide guidance to sentencing judges with the aim of achieving consistency in sentencing. This court has made it plain that generally, a term of immediate imprisonment is the only appropriate sentencing option for serious drug offences. 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: The State of 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: The State of Western Australia v Andela [2006] WASCA 77 [17]; Saxild [13].

   However, even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge is not relieved of his or her obligation to determine the appropriate penalty in the particular case.  In such circumstances the question for the sentencing judge is whether having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence:  Collins [21].'

   It is the experience of the courts that illicit drugs cause or materially contribute to a very significant proportion of the criminal offences committed in this State, either as a result of users acting under their influence or because of the need to finance or secure a supply of drugs.  There are often strong financial incentives to deal in prohibited drugs.  Further, significant public resources are devoted to the difficult task of detecting and apprehending persons involved in the supply and distribution of illicit drugs.  It is for these reasons that in sentencing for offences under s 6(1) of the Act, significant weight is given to general deterrence with the consequence that mitigating circumstances personal to the offender, including age and good character, are accorded less weight.

   …

   The overwhelming majority of offenders convicted of offences against s 6(1) of the Act are sentenced to terms of immediate imprisonment.  As previously noted, the imposition of a suspended term is, as a matter of fact, exceptional.  The number of suspended terms of imprisonment (conditional or otherwise) upheld or imposed on appeal in recent times can be counted on the fingers of one hand (Attenborough v The State of Western Australia [2005] WASCA 132; Samuel v The State of Western Australia [2004] WASCA 154; The State of Western Australia v Skaines [2006] WASCA 160; and The State of Western Australia v Marchese [2006] WASCA 153.

   …

   In ordering suspension in this case the sentencing judge emphasised the appellant's age and prior good character.  Youth (which term is used in the sentencing of adults to cover people in their late teens to middle 20s) and the absence of prior relevant convictions do not ordinarily result in the suspension of a term of imprisonment for drug dealing offences:  see Mishal v The Queen [2001] WASCA 328; Vogel v The State of Western Australia [2002] WASCA 261; Duong v The State of Western Australia (2006) 32 WAR 354; Jecks v The State of Western Australia [2007] WASCA 111; Wong v The State of Western Australia [2004] WASCA 286; The State of Western Australia v Munro [2000] WASCA 285; The State of Western Australia v Saxild [2008] WASCA 156; Dixon; Andela; RP v The State of Western Australia [2010] WASCA 75; Burke; Vagh; Lam v The State of Western Australia [2010] WASCA 61. It is not uncommon in this State for young persons of good character from advantaged backgrounds to engage in the distribution of prohibited drugs. Further, many of the youthful offenders in these cases had (after being charged) taken positive steps towards rehabilitation and were not found to be at any significant risk of re-offending. The imposition of a term of immediate imprisonment in these types of circumstances reflect the significant weight accorded to the need for general deterrence and the prevalence of offending of this type among young people. The latter may have some correlation with the nature of the market for prohibited drugs.

4. These principles were recently reaffirmed by this court in Fenton v The State of Western Australia [2015] WASCA 255 [18] ‑ [19] in the context of drug offending which involved, as in this case, relatively small quantities of drugs.

5. Having regard to the particular facts and circumstances of the present case, it does not fall within the exceptional category.  The appellant possessed the MDMA in part to distribute it into the community.  There was an aspect of commerciality to the offence.  The sale of the tablets would have funded the purchase of more illicit drugs.  The offending was not a 'one‑off' event; rather, it occurred in the context of other drug dealing.  As the learned sentencing judge pointed out, the appellant is not to be punished for this, but it illuminates the appellant's criminality and the need for personal deterrence. 

6. It is clear from all of the material before the learned sentencing judge that the appellant's rehabilitation is still at an early stage and is by no means secure or complete.  In any event, given the significant weight that must be given to general deterrence for offending of this type, the efforts the appellant has taken towards his rehabilitation do not bring the case within the exceptional category.

7. In my opinion, having regard to all of the circumstances of the case, it is not reasonably arguable that the learned sentencing judge erred in imposing an immediate term of imprisonment.  Leave to appeal should be refused and the appeal must be dismissed.

8. The orders that I would make are as follows:

   1.Leave to appeal is refused.

   2.The appeal is dismissed.