Cartwright v The State of Western Australia

[2010] WASCA 4

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   CARTWRIGHT -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 4

CORAM:   McLURE P

OWEN JA
WHEELER JA

HEARD:   4 DECEMBER 2009

DELIVERED          :   15 JANUARY 2010

FILE NO/S:   CACR 85 of 2009

BETWEEN:   SARAH NAOMI CARTWRIGHT

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :YEATS DCJ

File No  :IND BUN 87 of 2008

Catchwords:

Criminal law - Sentence - Possession of methamphetamine with intent to sell or supply - Whether sentence manifestly excessive - Turns on own facts

Legislation:

Sentencing Act 1995 (WA), s 39

Result:

Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant:     Mr D Grace QC

Respondent:     Ms L Petrusa

Solicitors:

Appellant:     Michael Tudori & Associates

Respondent:     Director of Public Prosecutions (WA)

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

Collins v The State of Western Australia [2007] WASCA 108

Dinsdale v The Queen (2000) 202 CLR 321

Duong v The State of Western Australia (2006) 32 WAR 246

Jecks v The State of Western Australia [2007] WASCA 111

Pepper v The State of Western Australia (2005) 30 WAR 447

Schlenka v The Queen [2004] WASCA 142

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

The State of Western Australia v Saxild [2008] WASCA 156

Vogel v The Queen [2002] WASCA 261

Watt v The Queen [2000] WASCA 354

1. McLURE P:  The appellant appeals from the sentence of 3 years' imprisonment imposed for her conviction after trial of possession of methylamphetamine with intent to sell or supply.  The appellant claims the sentence is manifestly excessive.

2. The appellant admitted being in possession of 11.8 g of crystalline methylamphetamine (known as ice) which had a purity of 78% but denied an intention to sell or supply it to another.  The jury rejected the appellant's evidence at trial that all of the drug was for her personal use.

3. The facts are as follows.  On 7 August 2007 the appellant was travelling in a vehicle near Myalup when she was stopped by police for exceeding the speed limit.  When her car was searched, a drug‑smoking pipe was located.  In the back of the vehicle, among bags of clothing, the officers found $16,400 in cash wrapped in newspaper.  The money was in $100 and $50 notes.  The officers also found another $3,000 in $50 notes in the pocket of her jeans, $2,500 in $50 notes in a CD case and $250 lying loose on the console of the vehicle.  A total of $22,150 in cash was found.

4. The appellant was driven to the police station in her car.  On leaving the car, she flung a black jewellery bag away.  The police located it.  The drug the subject of the conviction was in the jewellery bag.

5. The appellant admitted lying to police about the $16,400, telling them it was the proceeds of sale of her brother's motor vehicle, and also about the drug‑smoking implement found in her car.  The sentencing judge did not accept the appellant's evidence at trial that the money in her possession was received in the course of prostitution.  She also found that the appellant was a drug courier.  She said:

   Stepping back from this and looking at all the facts as they were before me, first of all, the absence of deal bags, scales, cutting agent, clearly indicates that she was not a street level dealer in methylamphetamine.

   The very large amount of cash in small domination bills ‑ well, not small, 50s and 100s, the very, very high purity of the methylamphetamine, the lies she told to police on the occasion of her questioning, all lead me to infer that the only reasonable inference is that she was a person who was at that time a courier, a person who supplied those who did deal in amphetamine ‑ methylamphetamine.

   I certainly accept that she was a user/courier, but I am satisfied beyond reasonable doubt that she was involved at that time in the distribution of methylamphetamine (AB 72).

6. The sentencing judge accepted that the appellant was a very heavy user of methylamphetamine but that she had ceased her use of the drug at the time of sentencing.  She also accepted the defence case that as a drug user the appellant was highly victimised.  Her mother started her on methylamphetamine as a teenager and she lived in an abusive relationship with a man who supplied her with drugs.  The sentencing judge found that by the time of sentencing, the appellant who was then aged 25 had reformed herself, was drug‑free and capable of making a positive contribution.  She was working part‑time as a retail assistant and was in a stable relationship with a professional boxer. 

7. The appellant contends the sentence is manifestly excessive in that a suspended term of imprisonment ought to have been imposed or alternatively the length of the term of imprisonment is too long.

Suspended imprisonment

1. 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].

2. 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].

3. 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].

4. Much emphasis is placed on the appellant's accepted rehabilitation.  It is the case that after an offender is charged with an offence, he or she may take positive steps towards rehabilitation.  That is a mitigating factor regardless of motivation.  However, apart from travelling overseas for a number of months shortly after being charged, there is no information as to the steps actually taken by the appellant to address her drug addiction.  In that context, it is pertinent to note from the psychological report that the appellant reported having maintained abstinence from drug use from age 18 to 20 but suffered a relapse thereafter.

5. In any event, there is no finding connecting the appellant's offending with her drug addiction.  In particular, there is no positive finding by the sentencing judge that any part of the methylamphetamine in the appellant's possession was for her personal use and no positive finding that the appellant committed the offence in order to fund her drug use. 

6. Further, there was little indication of remorse.  The appellant pleaded not guilty to the offence.  As appears from the pre‑sentence report and the psychological report, after her conviction the appellant continued to maintain her stance that the drugs were for her personal use and that the large sum of money in her car was unrelated to her involvement with prohibited drugs.  The sentencing judge found that the significant amount of cash in the appellant's possession related to her role as a drug courier. 

7. Having regard to all the circumstances, the sentencing judge would have erred if she had suspended the term of imprisonment.

Length of the term

1. Bearing in mind the appellant's plea of not guilty, the sentence of 3 years' imprisonment is well within the standards of sentencing customarily imposed:  see Pepper v The State of Western Australia (2005) 30 WAR 447; Vogel v The Queen [2002] WASCA 261; Duong v

The State of Western Australia (2006) 32 WAR 246; Watt v The Queen [2000] WASCA 354; and Jecks v The State of Western Australia [2007] WASCA 111. The sentence of 1 year and 8 months' imprisonment in Schlenka v The Queen [2004] WASCA 142 was a merciful disposition in what was described as a particularly unusual case [14]. Moreover, the circumstances of the offending in Schlenka were materially less serious than in this case.

1. The sentence is not manifestly excessive.  The appeal should be dismissed.

2. OWEN JA:  I agree with McLure P.

3. WHEELER JA:  I agree with McLure P.