Croxford v The State of Western Australia
[2021] WASCA 159
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CROXFORD -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 159
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 18 AUGUST 2021
DELIVERED : 18 AUGUST 2021
PUBLISHED : 6 SEPTEMBER 2021
FILE NO/S: CACR 83 of 2021
BETWEEN: KYM RENAE CROXFORD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GOETZE AUDCJ
File Number : IND 2070 of 2020
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted of possessing 4.04 g of methylamphetamine with intent to sell or supply to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) - Appellant suffered from mental and physical disabilities - Sentencing judge made error of fact - Whether error was material
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(aa)
Sentencing Act 1995 (WA), s 9AA
Result:
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | N R Sinton |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bailey v The State of Western Australia [2016] WASCA 10
Cooper v The State of Western Australia [2020] WASCA 199
Crichton v The State of Western Australia [No 2] [2014] WASCA 37
Fenton v The State of Western Australia [2015] WASCA 255
Ness v The State of Western Australia [No 2] [2013] WASCA 56
The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198
The State of Western Australia v Thompson [2014] WASCA 108
Truscott v The State of Western Australia [2016] WASCA 58
Wadeson v The State of Western Australia [2018] WASCA 171
REASONS OF THE COURT:
Overview
The appellant was convicted on her fast‑track plea of guilty of one count of possession of methylamphetamine with intent to sell or supply to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA) (the offence).
On 9 June 2021, Goetze AUDCJ sentenced the appellant to 9 months' immediate imprisonment, backdated to commence on 31 May 2021.
The appellant appeals against sentence on the sole ground that his Honour erred in fact in sentencing the appellant on the basis that she was a 'low‑level dealer for profit', when, at the sentencing hearing, it had been submitted on her behalf, and expressly accepted by the State, that the appellant was not dealing for profit.
On 9 July 2021, Buss P referred the application for leave to appeal to the hearing of the appeal and granted an urgent appeal order.
The respondent conceded that his Honour erred as alleged, but contended that the error was immaterial because it neither affected, nor was it capable of affecting, the sentence that had been imposed.[1] The respondent further submitted that, if it was material, this court, in re‑exercising the sentencing discretion, should not impose a different sentence.
[1] Cooper v The State of Western Australia [2020] WASCA 199 [150].
At the conclusion of the hearing of the appeal, this court made the following orders:
(1)Leave to appeal granted.
(2)Appeal allowed.
(3)The sentencing decision of the primary judge is set aside.
(4)The appellant is resentenced to 8 months' immediate imprisonment.
(5)The new sentence is to be taken to have taken effect on 31 May 2021.
(6)The appellant remains eligible for parole.
The court said that it would publish its reasons later. These are our reasons.
The facts of the offending
The following facts were uncontroversial, both in the court below and in this court.[2]
[2] ts 30 - 31.
At about 11.30 pm on 23 July 2020, the appellant was a passenger in a Subaru Forrester vehicle being driven on a street in Mandurah. The vehicle was seen and then stopped by police. The vehicle and its three occupants, including the appellant, were searched.
During the search of the vehicle, a water bottle with a hidden compartment, scales and a large quantity of clipseal bags were discovered. These items belonged to the driver, Joanne Mary Thomas. The police also located $25,800 in cash in the possession of another occupant of the vehicle, Amy Gray. The appellant and the other occupants of the vehicle were conveyed to the Mandurah Police Station. There, the appellant gave the police three clipseal bags that were concealed down the front of her pants. Inside these clipseal bags were four other bags, which contained a total of 4.04 g of methylamphetamine. The police also found, in the appellant's back pocket, a note with various figures written on it. The sentencing judge accepted that this piece of paper was not a tick list.[3]
[3] ts 50.
Although the appellant declined to participate in an electronic record of interview, she spoke to police in the lock‑up area of the police station. She stated that she suffered from rheumatoid arthritis and used methylamphetamine as a medication for her back pain. She also said that she was stocking up with methylamphetamine because 'it is very hard to get methylamphetamine at the moment'.[4]
[4] ts 31.
The appellant's personal circumstances
The appellant was 43 years old at the time of the commission of the offence. She was 44 years old when she was sentenced. After leaving school, she spent some time in the workforce, but in recent years she has been in receipt of a disability pension. Prior to her incarceration, she lived alone and shared the care of her son, who was in year 11 at the time. The appellant was able to live independently with the considerable assistance of her parents, who are supportive of her. Since the commission of the offence, she has been provided with assistance by the National Disability Insurance Scheme (NDIS).
The appellant has a prior criminal history. Relevantly, on 18 July 2017, she was sentenced to a total effective sentence of 12 months' immediate imprisonment with eligibility for parole for two counts of possession of methylamphetamine with intent to sell or supply. These offences were committed in 2016, approximately six months apart. One offence involved 5.12 g of methylamphetamine, while the other involved 4.07 g.[5]
[5] ts 44.
At the time the appellant was sentenced in 2017, she did not have support from the NDIS.[6]
[6] ts 43.
The reports
For the purpose of the appellant's sentencing, defence counsel provided the sentencing judge with the following documents:
(a)a clinical neuropsychology assessment report by Dr Amanda Ng, a clinical neuropsychologist, dated 31 July 2020;
(b)a letter written by Dr Andrew Lim, a consultant at the Royal Perth Hospital rheumatology outpatient clinic, addressed to the appellant's general practitioner, dated 2 September 2020;
(c)a report describing the appellant's medical history and its impacts on the appellant's life, written by Ms Yvonne Williams, a registered nurse, dated 1 September 2020; and
(d)a psychiatric assessment written by Dr Victoria Pascu, a consultant forensic psychiatrist, dated 26 February 2021.
These documents include the following relevant information. The appellant reported childhood trauma and abuse. Since the age of about 12, she has been, at various times, under psychiatric care and treatment, including multiple periods of hospitalisation.
The appellant has a lengthy history of illicit drug use, commencing from an early age. She has used a variety of illicit substances, including heroin and methylamphetamine.
The appellant has been diagnosed with Attention Deficit Hyperactivity Disorder and Borderline Personality Disorder.
In 1998, she suffered a hypoxic brain injury in the context of a heroin overdose. As a result, her cognition has been significantly affected. Dr Ng conducted a neuropsychology assessment of the appellant on 17 June 2020. Consistently with an assessment that was made in April 2000, the appellant has, as a result of her brain injury, severe memory impairment and deficits in her executive functioning.[7] In Dr Ng's opinion, the appellant's 'initial encoding' of verbal information is extremely low and her 'delayed recall and recognition of encoded information' was assessed as being extremely low to very low. While largely performing within expected limits across tasks measuring abstract reasoning, inhibition and verbal fluency, 'she demonstrated significant difficulties with mental flexibility and behaviour/error monitoring'.[8]
[7] Dr Ng's report, page 5.
[8] Dr Ng's report, page 5.
In addition to the appellant's acquired brain injury, she suffers from other medical conditions, including hypothyroidism, depression, asthma, fibromyalgia and seronegative rheumatoid arthritis. As a result of her rheumatoid arthritis, the appellant experiences debilitating pain and stiffness to multiple joints, including her wrists, knees, and, to a lesser extent, her ankles, as well as some restriction to her left shoulder.[9] The appellant's rheumatoid arthritis has been treated by infusions which have only provided her with temporary benefit. The condition has adversely affected the appellant's mobility.
[9] Dr Lim's letter, page 1.
In Dr Pascu's opinion:[10]
[The appellant] is a 43 year old single woman with a history of emotionally unstable personality disorder with episodes of depression with likely pseudo hallucinations and a history of possible psychotic symptoms in context of illicit drug intoxication, complicated by chronic pain related to her rheumatoid arthritis which she has tried to manage with Methyl amphetamine use.
From the information available there is a history of childhood trauma between the ages of nine and twelve years old which she disclosed to her parents at the age of 15 years. [The appellant] reported feeling that she was not believed until the age of 19 years when she suffered from a depressive episode requiring treatment in hospital.
There is a history of emotional unstable personality style which, in my opinion, has developed in context of the childhood trauma and the lack of validation of the emotional impact of the trauma; this is characterised by emotional instability, chronic feelings of emptiness, tendency to be involved in intense or unstable relationships often leading to emotional crises; excessive efforts to avoid abandonment leading to increased vulnerability to exploitation and recurrent threats or acts of self-harm.
Furthermore in [the appellant's] case, due to the acquired brain injury secondary to the hypoxia, in my opinion the features of her emotionally unstable personality are more prominent alongside the issue related to her cognitive and memory impairments. These will compound her underlying feelings of loneliness which will further contribute to her fear of abandonment. This leads to a vicious circle where her emotional dysregulation and instability will lead to intermittent depressive episodes, some involving possible psychotic symptoms. This, in my opinion, increases [the appellant's] vulnerability to be taken advantage/exploited by others.
[10] Dr Pascu's report, pages 10 - 11.
In Dr Pascu's opinion, the appellant does not suffer from a major mental illness. Dr Pascu was unable to diagnose the appellant as having an antisocial personality disorder. In Dr Pascu's opinion, the appellant's antisocial acts occurred 'most likely in context of her emotional dysregulation [and] difficulties in dealing with the exploitation from her "so called" friends'.[11]
[11] Dr Pascu's report, page 11.
The procedural history leading up to 9 June 2021
It is necessary to say something about the procedural history leading up to the appellant's sentencing.
On 24 July 2020, the appellant was charged with the offence.
On 13 October 2020, at her fourth appearance in the Magistrates Court, the appellant indicated a plea of guilty to the charge and was committed to the District Court for sentence.
On 8 December 2020, the State filed a number of documents including an amended statement of material facts. In the amended statement, the State asserted that the appellant was 'a low‑level user/dealer dealing to support her own habit'.[12]
[12] Amended statement of material facts, 8 December 2020, par 10.
After two mentions in the District Court, the appellant was remanded on bail to appear at a sentencing hearing on 22 April 2021. On 20 April 2021, the appellant's counsel filed written sentencing submissions. In these submissions, the appellant contested the State's characterisation of the appellant as 'a low‑level user/dealer dealing to support her own habit'. It was asserted, on the appellant's behalf, that she was not involved in ongoing drug dealing.[13]
[13] Defence written sentencing submissions, 20 April 2021, par 17.
On 22 April 2021, the proceedings were adjourned to 9 June 2021 to enable the State to make inquiries about the appellant's involvement in ongoing drug dealing. In the course of these inquiries, the State obtained a download of material stored on the appellant's mobile tablet, including screen shots of her Facebook messages. The messages were incorporated into the prosecution brief for sentence. In general terms, they reveal that, in the period leading up to the offence, the appellant was engaged in low‑level drug dealing.
The sentencing proceedings on 9 June 2021
Ultimately, the parties reached an agreed position, based on the materials downloaded from the appellant's mobile tablet. On 9 June 2021, at the sentencing hearing, defence counsel accepted that the appellant was a 'user/dealer of methylamphetamine' and said that the appellant sold the drug, not for profit, but only to cover her costs of acquiring it.[14] With respect to the 4.04 g of methylamphetamine the subject of the charge, counsel submitted that 3.1 g had been purchased by the appellant, on behalf of Ms Gray, using money which had been given to her by Ms Gray. The intention was for this quantity of methylamphetamine to be given to Ms Gray. With respect to the remaining 0.94 g of methylamphetamine, defence counsel said that some of it was to be used by the appellant and some of it was to be sold 'in points to friends' at cost price.[15]
[14] ts 23 - 24.
[15] ts 24.
In response to these submissions, the prosecutor told his Honour that the State accepted that, at the time that the appellant was caught with the methylamphetamine, she was selling drugs at cost price. The prosecutor elaborated, 'She wasn't making any profit out of it, but she was selling drugs'.[16]
[16] ts 24.
With respect to the 4.04 g of methylamphetamine, the prosecutor accepted that the appellant went to a house with money and came back with drugs, 3.1 g of which was purchased by the appellant on behalf of, and using funds that were provided by, Ms Gray.[17] The prosecutor also accepted, in essence, that part of the balance (0.94 g) would be used by the appellant, and part of it would be sold at cost price.
[17] ts 28 - 29.
At no time in the course of sentencing submissions did his Honour indicate to the parties that he was not prepared to accept the agreed facts. To the contrary, in the course of defence counsel's plea in mitigation, his Honour stated, 'I'm not going to go against the agreed facts'.[18]
Sentencing submissions
[18] ts 37.
It was submitted on behalf of the appellant that she should be sentenced to a conditionally suspended term of imprisonment.[19]
[19] ts 39 - 40.
The prosecutor submitted that the appellant should be sentenced to an immediate term of imprisonment.[20]
The sentencing remarks
[20] ts 44.
After reciting the basic facts of the offending, his Honour made the finding which, having regard to the agreed position adopted by the appellant and the State, was erroneous. His Honour said:[21]
So my finding is as part of the agreed facts that you were a low‑level dealer for profit, particularly with respect to the 0.94 of a gram. (emphasis added)
[21] ts 50.
His Honour went on to find that the appellant was 'facilitating a deal' in respect of 3.1 g of methylamphetamine, between Ms Gray and someone in the house from which the drugs were acquired.[22] His Honour described the appellant's personal circumstances and the reports in detail.[23]
[22] ts 50.
[23] ts 51 - 54.
His Honour appears to have accepted the contents of the reports. With respect to Dr Pascu's opinions, his Honour said:[24]
Now, coming from Dr Pascu's report there are some mental disabilities, but can I first emphasise that you do not suffer a major mental illness or mental impairment. But there are some matters that reduce your moral culpability as distinct from your legal responsibility, and these factors impaired your ability to exercise appropriate judgment or to make calm and rational choices and left you vulnerable to exploitation by others.
So these have contributed to your offending. And that offending occurred secondary to your impaired judgment which is secondary to your underlying fear of abandonment and fear of loneliness with subsequent increased vulnerability to exploitation, as I've mentioned.
[24] ts 53.
Later, his Honour said that, by reason of the appellant's mental impairment, the need for general deterrence is reduced. However, personal deterrence remained a relevant sentencing consideration.[25]
[25] ts 54.
His Honour had regard to the appellant's plea of guilty, for which he gave a discount of 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA).[26] His Honour recognised that the appellant had accepted responsibility for her offending and showed some remorse. That remorse was found to have led her to rehabilitation and, since her offending, she was 'engaged with the Disability Insurance Scheme'.[27]
[26] ts 54.
[27] ts 54.
His Honour accepted that the medical reports which had been provided to him contained information that had not been known when the appellant was sentenced in 2017.[28] His Honour acknowledged that the NDIS would not be able to assist the appellant in prison and that imprisonment would have an impact upon her physical and psychological rehabilitation. He accepted that imprisonment would also be more difficult for her and that she would be at risk in prison of developing more depressive symptoms as a result of being away from her family and other supports.
[28] ts 55.
His Honour referred to the appellant's criminal history and observed that the offending could not be viewed as an uncharacteristic aberration and that she could not be treated with the leniency that may have been afforded to someone who was a first offender.
The sentencing judge acknowledged that imprisonment was a penalty of last resort.[29] As to whether he could suspend any term of imprisonment, he acknowledged that a benefit of suspension would be that the appellant would have the assistance of the NDIS. However, his Honour was of the view that the appellant's offending was so serious that only a term of immediate imprisonment was warranted.[30] In imposing the term, his Honour stated that it was less than would otherwise have been imposed because he wished, among other things, to encourage the appellant's rehabilitation.
[29] ts 56.
[30] ts 58.
Ground of appeal is made out
As conceded by the respondent, the statement made by his Honour set out at [35] above is erroneous. That statement is contrary to the agreed position of the parties, which was that the appellant was not dealing in prohibited drugs for profit. His Honour told the parties in effect that he would sentence the appellant on the basis of the agreed position. His Honour did not do so. In our opinion, the error was material because the erroneous finding elevated the seriousness of the offending. The error was, at least, capable of affecting the sentence imposed. Error having been established enlivens this court's jurisdiction to resentence. We would, contrary to the submissions of the respondent, impose a different sentence to that imposed by the sentencing judge.
Resentencing
The court has all the materials necessary to resentence the appellant, including, of course, the reports referred to earlier in these reasons.
The maximum penalty for the offence committed by the appellant is 25 years' imprisonment and/or a fine of $100,000.[31] The general principles applicable to the sentencing of offenders who are convicted of offences contrary to s 6(1)(a) of the MDA are well‑established.[32] In order to prevent the distribution of dangerous drugs into the community, with all the misery that they bring, personal and general deterrence are the most significant sentencing considerations. Matters personal to an offender, while not irrelevant, are accorded less weight. The quantity of a prohibited drug is relevant, but not the only or dominant sentencing consideration. Other relevant considerations include whether the offender was engaged in the distribution of prohibited drugs for profit and the role the offender played in the distribution of those drugs into the community.
[31] Misuse of Drugs Act 1981 (WA), s 34(1)(aa).
[32] See The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198 [23] ‑ [28].
As a matter of fact, the imposition of a sentence other than immediate imprisonment for offences contrary to s 6(1)(a) of the MDA is exceptional, even in cases where youth is combined with factors such as prior good character, an early guilty plea, remorse, a disadvantaged background, family support, positive steps towards rehabilitation and no significant risk of reoffending. Matters personal to an offender have a greater impact on the length of the term of imprisonment than on the type of sentence imposed.
We have had regard to a number of cases involving small quantities of methylamphetamine, heroin or MDMA which have been decided by this court since 2013, including Wadeson v The State of Western Australia;[33] Bailey v The State of Western Australia;[34] Truscott v The State of Western Australia;[35] Fenton v The State of Western Australia;[36] Crichton v The State of Western Australia [No 2];[37] The State of Western Australia v Thompson[38] and Ness v The State of Western Australia [No 2].[39] These cases reinforce the reality that, even where offences involve small amounts of prohibited drugs, the offender has favourable circumstances and a plea of guilty has been entered, a term of immediate imprisonment is almost always imposed.
[33] Wadeson v The State of Western Australia [2018] WASCA 171.
[34] Bailey v The State of Western Australia [2016] WASCA 10.
[35] Truscott v The State of Western Australia [2016] WASCA 58.
[36] Fenton v The State of Western Australia [2015] WASCA 255.
[37] Crichton v The State of Western Australia [No 2] [2014] WASCA 37.
[38] The State of Western Australia v Thompson [2014] WASCA 108.
[39] Ness v The State of Western Australia [No 2] [2013] WASCA 56.
For example, in Fenton, the offender pleaded guilty on the fast‑track system to possessing, with intent to sell or supply, 5.19 g of methylamphetamine. He was sentenced to 10 months' immediate imprisonment on the basis that there was no commercial aspect to his offending. Despite the lack of commerciality, the appellant's appeal was dismissed.
However, there are a small number of cases where suspended imprisonment has been imposed in this court. In Crichton v The State of Western Australia [No 2], the appellant entered a fast‑track plea of guilty to possessing 1.38 g of heroin with intent to sell or supply, and was sentenced to 9 months' immediate imprisonment. On appeal, by majority, this court allowed the appeal and resentenced the appellant to a suspended term of imprisonment. In Crichton, it was noted that there was a combination of 'exceptional features', including the very low quantity of heroin and, while there was some commercial aspect to the offending, the financial gain was modest.[40]
[40] Crichton [No 2] [38].
In the present case, counsel for the appellant, in essence, accepted that a term of immediate imprisonment was, having regard to the circumstances of the offending and the authorities, the only appropriate disposition.[41] Counsel was correct to take this approach. While by no means as serious as many other cases of its type, the appellant's offending conduct was serious. It is clear from the Facebook messages which were downloaded from the appellant's mobile tablet that she was involved in the sale or supply of small quantities of methylamphetamine to others over a period of time. In other words, the offending was not an isolated occurrence. Although the appellant is not to be punished again for the offences she committed in 2016, the fact that she had committed the same offence in the past underscored the need for personal deterrence. This is so, despite her impaired memory. This is illustrated by one of the Facebook messages found on the appellant's tablet, which was sent around the time of the commission of the offence, although the exact date is not recorded. In this message, the appellant wrote to an associate:[42]
… Yes, I got caught and charged with two counts … of intent to sell and supply. Each charge sentenced me for a year each but cos have very intense and heavy events that happened to occur whilst I was on remand … the judge took pity on me (severely intense shit went down) and I was lucky to be given and served each sentence concurrently so got to do two sentences at same time. Therefore only half as long as given sentence of 2 years but only made to do 1 yr out full‑time no parole. But others caught with similar amounts and same charges got like at least 2.5-3 years minimum for each charge …
This message shows that the appellant understands the criminality of her offending and the serious consequences for her that may flow from it.
[41] Appeal ts 3.
[42] AB 248.
Turning then to the term of immediate imprisonment to be imposed, there are a combination of factors which, when taken together, justify a shorter sentence than may otherwise have been the case. Those factors are:
(1)The appellant entered a fast‑track plea of guilty. She was remorseful and accepted responsibility for the offending.
(2)Her low‑level drug dealing was not motivated by the desire to make a profit. Of the 4.04 g she possessed, 3.1 g was being temporarily held by her for Ms Gray. The balance would have been partly used by the appellant and partly sold at cost price to friends.
(3)Her mental disabilities reduced her moral culpability. She was lonely and vulnerable to exploitation by 'so‑called' friends and it appears that this largely motivated her offending. Her mental disabilities also somewhat modified the effect of general deterrence.
(4)The appellant's mental and physical disabilities, including brain damage, have consequences which make imprisonment more difficult for her.
(5)The appellant has already served approximately 2 1/2 months in custody.
(6)The appellant was, prior to being sentenced, receiving assistance through the NDIS. This assistance, which will hopefully be offered to the appellant upon her release, enhances her prospects of rehabilitation.
Like the sentencing judge, we would impose a discount of 25% for the appellant's plea of guilty, pursuant to s 9AA of the Sentencing Act. Having regard to all of the relevant factors referred to above, we would resentence the appellant to 8 months' immediate imprisonment, with eligibility for parole, to commence on 31 May 2021. We appreciate that this is a modest reduction from that imposed by the sentencing judge. However, it is an outcome which reflects and is consistent with this court independently exercising its jurisdiction to resentence the appellant.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
6 SEPTEMBER 2021
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