Dahl v Arnold
[2020] WASC 224
•9 JUNE 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DAHL -v- ARNOLD [2020] WASC 224
CORAM: ARCHER J
HEARD: 9 JUNE 2020
DELIVERED : 9 JUNE 2020
FILE NO/S: SJA 1002 of 2020
BETWEEN: LUKE TREVOR DAHL
Appellant
AND
LEANNE ARNOLD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE L ATKINS
File Number : RO 5102/2019
Catchwords:
Criminal law - Appeal against sentence - Manifestly excessive - Wrong sentence - Suspended imprisonment
Legislation:
Criminal Appeals Act 2004 (WA)
Result:
Extension of time and leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | T J McCulloch |
| Respondent | : | A Ishak |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Dinsdale v The Queen [2000] HCA 54 (2000) 202 CLR 321
Gaskell v The State of Western Australia [2018] WASCA 8
Haddara v The Queen [2016] VSCA 168; (2016) 260 A Crim R 306
Heesom v O'Keefe [2017] WASC 362
Nayna v The State of Western Australia [2016] WASCA 169
Ninyette v Holmes [2015] WASC 287
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Trang v Western Australia [2010] WASCA 44
Wilson v The State of Western Australia [2010] WASCA 82
ARCHER J:
(This judgment was delivered extemporaneously and has been edited from the transcript.)
Introduction
On 31 May 2019, the appellant was stopped by police while driving a car in Warnbro. Police officers conducted a search of the car and found one small clip‑seal bag containing 2.69 g of methylamphetamine inside the appellant's wallet.
The appellant was charged with possession of a prohibited drug, contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA). He pleaded guilty to the charge.
Her Honour Magistrate Atkins imposed a sentence of 7 months' imprisonment, conditionally suspended for 12 months.
The appellant seeks an extension of time within which to appeal, and leave to appeal, against the sentence. The applications for an extension of time and for leave to appeal were ordered to be heard at the same time as the appeal.
The sole ground of appeal is that it was not open to the magistrate to impose a sentence of imprisonment.
Appeals from magistrates' decisions[1]
[1] This section reproduces or draws on my reasons in Heesom v O'Keefe [2017] WASC 362, but is repeated here for convenience.
Section 8(1) of the Criminal Appeals Act 2004 (WA) permits an appeal against a conviction or sentence in the Magistrates Court to be made on one or more of these grounds:
(a)that the court of summary jurisdiction -
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
Leave to appeal is required for each ground of appeal.[2]
[2] Criminal Appeals Act, s 9(1).
The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[3] This means that the ground is required to have a real, rational and logical prospect of succeeding.[4]
[3] Criminal Appeals Act, s 9(2).
[4] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
When considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[5] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[6]
[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
Principles relating to sentencing appeals
[5] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].
[6] Strahan v Brennan [90].
Part 2 of the Criminal Appeals Act sets out the framework for appeals from courts of summary jurisdiction. The framework in pt 2 differs slightly from the framework in pt 3, which deals with appeals to the Court of Appeal from superior courts. Therefore, judicial observations made in relation to appeals under pt 3 cannot automatically be applied to appeals under pt 2.[7] There are, however, core principles that apply to appeals against sentence under both pt 2 and pt 3. In particular, the court is not entitled to intervene merely because it would have exercised the sentencing discretion differently. It is only entitled to intervene if the sentencing court made an express or implied error.[8]
[7] Ninyette v Holmes [2015] WASC 287 [56.3].
[8] Wilson v The State of Western Australia [2010] WASCA 82 [2]; Ninyette v Holmes [59] ‑ [65]; Gaskell v The State of Western Australia [2018] WASCA 8 [127(1)].
Ground of appeal - imprisonment not open
The appellant submits that it was simply not open to the magistrate to impose a suspended term of imprisonment. This is, in effect, an assertion that the sentence was manifestly excessive. A sentence may be manifestly excessive because the wrong type of sentence was imposed.[9]
[9] Nayna vThe State of Western Australia [2016] WASCA 169 [36], citing Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6].
An assertion that a sentence is manifestly excessive is an assertion of implied error. To succeed, the appellant must demonstrate that the disposition is unreasonable or plainly unjust.[10]
[10] Gaskell [127(1)].
Section 39(2) of the Sentencing Act 1995 (WA) lists the sentencing options. Under s 39(3), a court must not use a sentencing option in subsection (2) unless satisfied that it is not appropriate to use any of the options listed before that option. Therefore, to establish that the type of sentence imposed was not reasonably open, the appellant must establish that it was not open to the magistrate to be positively satisfied that a lesser option was not appropriate.
Further, a court may not impose suspended imprisonment unless it is satisfied that, if it were not possible to suspend imprisonment, a term of immediate imprisonment of the same length would be appropriate.[11]
[11] Section 76(2) of the Sentencing Act.
A sentence of imprisonment can only be imposed as a last resort. It can only be imposed where the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it.[12]
[12] Section 6(4) and s 39(3) of the Sentencing Act.
It follows that a court cannot impose suspended imprisonment unless it is satisfied that:
(a)none of the other less serious options provided for by the Sentencing Act are appropriate;
(b)the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it; and
(c)if it were not possible to suspend imprisonment, a term of immediate imprisonment of the same length would be appropriate.
Accordingly, the question in this case is whether it was open to the magistrate to be satisfied of each of those three requirements. In relation to the third requirement, it required the magistrate to be satisfied that if it were not possible to suspend imprisonment, a term of 7 months' imprisonment would be appropriate.
The appellant seeks to demonstrate that imprisonment was not open by submitting that a sentence exceeding 6 months' imprisonment would have been manifestly excessive. A court is not permitted to impose a sentence of 6 months' imprisonment or less.[13] The appellant argues, therefore, that imprisonment was not open to the magistrate. As the above analysis shows, the appellant is setting the bar slightly higher than necessary. The appellant need only show that a sentence of 7 months' immediate imprisonment would have been excessive, if it had not been possible to suspend the imprisonment.
[13] Section 86 of the Sentencing Act.
The proper approach to determining whether a sentence is manifestly excessive, which includes whether it was open to impose the particular type of sentence, is well settled. The sentence should be examined having regard to the maximum sentence for the offence, sentences imposed in other appellate cases for similar offences, the gravity of the criminal conduct in the scale of seriousness for offences of that type, and the offender's personal circumstances.[14]
Maximum penalty
[14] Gaskell [127(2)].
The maximum penalty for the offence of possession of methylamphetamine is a $2,000 fine or 2 years' imprisonment, or both.[15]
[15] Misuse of Drugs Act, s 34(1)(e).
The maximum penalty for simple possession of methylamphetamine is significantly lower than for possession with intent to sell or supply. The maximum penalty for possessing less than a trafficable quantity of methylamphetamine with intent to sell or supply is 25 years' imprisonment or a $100,000 fine, or both.[16] It is life imprisonment if it involves a trafficable quantity.[17]
[16] Section 34 of the Misuse of Drugs Act.
[17] In relation to methylamphetamine, the trafficable quantity is 28 g.
It cannot be doubted that there will be some cases in which it is appropriate to impose immediate imprisonment for a simple possession offence.
Comparable cases
The respondent helpfully provided a table of appellate cases involving sentences for possession of methylamphetamine. The table is attached to these reasons.
The value of these other cases is limited. All of them involved offenders who had been sentenced for multiple offences. In many of those cases, the quantities involved were small fractions of a single gram. In other cases, the quantity of methylamphetamine was not specified.
The cases indicate that, where the amount possessed is a small fraction of a gram, fines are usually imposed. More broadly, the cases indicate that fines and periods of immediate imprisonment up to 16 months have been imposed for simple possession of methylamphetamine.
In Trang v The State of Western Australia,[18] the offender was sentenced to a total of 4 years' immediate imprisonment after pleading guilty to one count of possession of heroin with intent to sell or supply, and five summary charges. Four of the summary charges were of possession of a prohibited drug. The fifth was a charge of possessing cash reasonably suspected of having been obtained unlawfully.
[18] Trang v The State of Western Australia [2010] WASCA 44.
The offender was sentenced to 2 years' imprisonment for the possession of heroin with intent to sell or supply (head sentence).
The offender was sentenced to 8 months' imprisonment for two of the simple possession charges, being possession of 0.46 g of heroin and 2.49 g of MDMA, concurrent with each other but cumulative on the head sentence. The offender was sentenced to 16 months' imprisonment for the other two simple possession charges, being possession of 2.65 g of methylamphetamine and 3.9 g of heroin, again concurrent with each other but cumulative on the head sentence.
The appeal was on the sole ground that the total effective sentence of 4 years was manifestly excessive. The majority allowed the appeal, and resentenced the appellant.
The majority noted that the maximum penalty for simple possession was 2 years' imprisonment and that the offender had entered fast track pleas of guilty. The majority said that, in those circumstances, the two penalties of 16 months were 'very high'.[19] Nevertheless, the court did not interfere with any of the individual sentences. The court did, however, make more of the sentences concurrent, resulting in a total effective sentence of 3 years and 4 months.
[19] Trang [16].
The dissenting judge, Newnes JA, described those individual penalties as 'very severe'. His Honour noted that, on the basis that there was a 25% reduction for the guilty plea, the sentence was near the top of the range.[20] A 25% reduction from a 2 year maximum would be 18 months. Newnes JA was not satisfied, however, that the appellant had established that the sentencing judge had erred in imposing the total sentence.
Seriousness of the offences
[20] Trang [40].
The offence involved the possession of 2.69 g of methylamphetamine.
For a charge of simple possession, this is a large quantity. As I have noted, in many of the Court of Appeal cases involving sentences for possession of methylamphetamine, the quantities involved were small fractions of a gram. The presumptive amount[21] for methylamphetamine is 2 g.
[21] If a person has possession of more than 2 g of methylamphetamine, the person is deemed to possess it with intent to sell or supply it - Misuse of Drugs Act s 11(a) and sch V, div 1, item 82.
I accept that the amount of the drug is simply one of the relevant factors in assessing the seriousness of the offence. It is, however, relevant. In particular, the greater the amount of the drug, the greater the financial contribution to the market for illicit drugs.
I also consider that the type of drug may be a relevant factor, and was in this case.
In Haddara v R,[22] the court observed:
Methylamphetamine is a scourge on society. It is the experience of judges that ice potentially is extremely harmful to the individuals who use it. Almost daily, judges in criminal courts are told that serious crimes were committed by offenders who, as a result of the use of ice, suffered severe mood swings, paranoia and psychosis, reflected in extreme aggression and violence. It is also well‑known to judges who sit in criminal courts that the violent, dangerous and reckless behaviour that the drug often provokes in those who use it causes immeasurable harm to the community, which suffers as a result of such behaviour.
Personal circumstances
[22] Haddara v R [2016] VSCA 168; (2016) 260 A Crim R 306 [49].
The appellant pleaded guilty to the charge of simple possession and was given full credit for that plea by the learned magistrate.
The appellant was 27 years old at the time of the offence and the sentencing.
He has an extensive criminal history. At the time this offence was committed, the appellant had five convictions for possession of methylamphetamine and two convictions for possessing drug paraphernalia in which there was a prohibited drug.
The last of the convictions for possession of methylamphetamine occurred just two months before the appellant committed this offence.
It appears that the appellant has suffered from ongoing addiction issues since he was 18 years old. Despite the quantity being over the presumptive amount, it was accepted that the drugs were for his personal use.
The appellant has previously served a term of imprisonment. On 25 October 2016, the appellant was sentenced to 2 years' imprisonment for a range of offences including aggravated burglary, assault occasioning bodily harm, two offences against the Weapons Act 1999 (WA), disobeying a summons and obstructing public officers.
The appellant was subject to a parole order between 23 December 2017 and 24 October 2018 following his release from that sentence. It appears that he struggled to abstain from methylamphetamine during this period. He attended substance abuse counselling during the parole period, but his compliance waned slightly towards the end of the order, when he could not be contacted.[23]
[23] ts 13.
Nevertheless, he was considered suitable for a community based order.[24]
Submissions as to errors made by the magistrate
[24] ts 14.
The appellant also argued that the magistrate had irrationally reached the view that imprisonment was required, in two respects.
First, it was submitted that the magistrate rejected the option of a community based order because her Honour did not think the appellant could comply with such an order. The appellant submitted that this was an error because the appellant was said to be suitable for such an order.
Second, it was submitted that the magistrate wrongly took into account facts not proven and an offence not charged. The magistrate had told the appellant's counsel, during the hearing, that if the amount of drugs had been 3 g and there was any suggestion of intent to sell or supply, the appellant would be looking at a term of immediate imprisonment.[25]
[25] ts 14.
Even if these had been grounds of appeal, I would not have allowed the appeal on such grounds.
Neither were said in the course of the magistrate's reasons.
In relation to the first, I do not accept that the magistrate rejected the option of a community based order because her Honour did not think the appellant could comply with such an order. That proposition is inconsistent with her Honour's reasons, and was not what her Honour said in the course of the exchange with counsel.[26]
[26] See ts 11 ‑ 12 and 14.
In relation to the second, the magistrate was simply making the point that, had the facts been different, she would not have felt able to suspend the imprisonment. Her Honour did not sentence the appellant on an incorrect factual basis or for an offence he did not commit. Her Honour demonstrably did not do so, by suspending the imprisonment.
Conclusion
It is for the appellant to establish that it was not open to the magistrate to impose the sentence. It is not for me to substitute the sentence I would have imposed if I had been sentencing the appellant for this offence.
The appellant pleaded guilty and was found to be entitled to the full discount for that. However, there were no other circumstances of mitigation. In particular, the appellant did not have the benefit of a clean record and he was not particularly young.
The appellant had not been deterred from committing this offence by the fine imposed on him two months earlier for possessing methylamphetamine.
The quantity of methylamphetamine was large for a simple possession charge.
I am not satisfied that it was not open to the magistrate to be satisfied that the less serious sentencing options were not appropriate. I am not satisfied that it was not open to the magistrate to be satisfied that the seriousness of the offence was such that only imprisonment could be justified or the protection of the community required it. I am not satisfied that, if it were not possible to suspend imprisonment, 7 months' imprisonment would not have been an appropriate sentence.
I am therefore not satisfied it was not open to the magistrate to impose the sentence and would dismiss the appeal.
Extension of time
The appeal notice was lodged more than three months out of time. The delay has been inadequately explained. In particular, the appellant was represented by a Legal Aid duty lawyer when he was sentenced. Despite this, it was not until 23 October 2019, over seven weeks later, that the duty lawyer team leader reviewed the matter and noted that the sentence may warrant investigation for an appeal.
Nevertheless, the respondent did not oppose the grant of an extension of time within which to appeal if I was to find merit in the appeal.
In my view, it would have been in the interests of justice to grant an extension if I would otherwise have allowed the appeal. As I would dismiss the appeal, I will not grant an extension of time.
Conclusion
I would make the following orders:
1.The application for an extension of time within which to appeal is refused;
2.Leave to appeal is refused;
3.The appeal is dismissed.
ATTACHMENT
| Possession of prohibited drug s 6(2) Misuse of Drugs Act 1981 | |||
| Decision | Circumstances of offending | Sentence | Appeal |
| YDN v The State of Western Australia [2018] WASCA 62 | On execution of a search warrant at the appellant's villa, police located 20 g of cannabis in the appellant's bedroom, $4050 in cash, 0.1g of methamphetamine and two glass smoking implements. The appellant was 44 years old and had a criminal record comprised predominantly of drug and traffic offences. | Total sentence: 13 years and 6 months. Individual sentence for s 6(2) offence: 6 months (concurrent). | Appeal allowed. Individual sentence of 6 months' imprisonment was set aside and substituted with a $1,000 fine. Reasoning not discussed in detail. Court of Appeal merely stated that in reaching the decision, it had regard to ss 6(4) and 39(3) of the Sentencing Act 1995 (SA). |
| Lenton v State of Western Australia [2017] WASCA 224 | The appellant was convicted on his pleas of guilty of seven counts on an indictment. The appellant was apprehended after attempting to evade police on his motorcycle. Police searched his backpack and satchel and found a number of clip seal bags containing a 2.09 g of MDMA. Police also located 0.5g of MDA. The appellant had a long history of drug related and other criminal offending. The appellant pleaded guilty at a very late stage. | Total sentence: 8 years. Individual sentence for s 6(2) offence (MDMA): 1 month (concurrent). Individual sentence for s 6(2) offence (MDA): 1 month (concurrent). | Appeal dismissed. The individual sentences were not challenged on appeal. Confined to whether the total effective sentence was unreasonable or unjust. |
| Dias v State of Western Australia [2017] WASCA 49 | On various dates, police searched the appellant's vehicle and residence and found drugs, drug paraphernalia, ammunition, a prohibited weapon and money unlawfully obtained. The facts of the s 6(2) offence involving methamphetamine are as follows. During a search of the appellant's home, police located 0.59g of MDMA tablets. On a later date, police stopped the appellant's vehicle in Bayswater and located three clipseal bags containing methamphetamine with a total weight of less than one gram. At the time of this offence, the appellant was on bail. The appellant was 31 years old, and had a good employment history and a supportive family. The appellant entered a guilty plea at the first reasonable opportunity. The appellant was a long-term user of drugs and had a criminal record, which included drug-related convictions. The pre-sentence report suggested that the appellant's underlying issues and offending were related to negative peer association, mental health issues and poor coping mechanisms and decision-making skills. The appellant had sought counselling at the time of sentencing. | Total sentence: 2 years. Individual sentence for s 6(2) offence (MDMA): $300 Individual sentence for s 6(2) offence (methamphetamine): 3 months | Appeal dismissed. One of the grounds of appeal alleged that the sentence on the charge of possession of methamphetamine was manifestly excessive. The Court, at [29], stated that it would not interfere with the sentence imposed. |
| Nguyen v State of Western Australia [2017] WASCA 35 | Police conducted a search of a house in Balcatta and found the appellant in a lounge room with 1.85g of methamphetamine and a glass pipe. Police also searched a locked bedroom and found a total of 437g of methamphetamine, 201g of heroin and $153,465 in cash. The appellant had no prior convictions. The appellant began using methamphetamine at age 60. The appellant was employed but had been unemployed for a period of time. | Total sentence: 9 years | The appeal was dismissed. |
| Mitchell v Purvis [2016] WASC 351 | The appellant was searched by police officers after a police chase and was found to be in possession of a small quantity of methamphetamine (the precise quantity was not specified). The appellant was charged with other offences. The appellant had a lengthy criminal record which included offences of obstructing public officers, possessing prohibited drugs and driving without authority. | Total sentence: 15 months | The sentence imposed for the offence against s 6(2) was not challenged on appeal. |
| Miller v Byrne [2016] WASC 236 | The appellant was convicted of a number of offences, including one charge of possessing methamphetamine, contrary to s 6(2). The quantity of methamphetamine was not specified. The appellant was 32 at the time of sentencing, did not have a serious criminal record and had never been imprisoned. The appellant pleaded guilty to all charges. The offences occurred while the appellant was struggling with drug addiction, but had made steps towards rehabilitation since his arrest. | Total sentence: 2 years Individual sentence for s 6(2) offence (methamphetamine): $100 | The sentence imposed for the offence under s 6(2) was not challenged on appeal. |
| Garlett v State of Western Australia [2016] WASCA 80 | The appellant was arrested by police in Geraldton for stealing a motor vehicle. During a search of the vehicle, police located a small clip seal bag containing 0.1g of amphetamine. The appellant admitted in an electronic record of interview to its ownership. The appellant was subject to an intensive supervision order at the time of the offence. The appellant was young, had a criminal record, had a history of methamphetamine and amphetamine use, disregarded previous opportunities to rehabilitate himself, had prospects to pursue a career in AFL and pleaded guilty. | Total sentence: 4 years 8 months Individual sentence for s 6(2) offence (amphetamine): 1 month | Appeal dismissed. Grounds of appeal included that each of the individual sentences imposed were manifestly excessive, both in length and type of sentence. Court of Appeal held that the length of the individual sentences were within the bounds of a proper exercise of the sentencing discretion. The Court also considered that the imposition of a suspended term of imprisonment was inappropriate given the seriousness of the offending. |
| Penetta v State of Western Australia [2015] WASCA 234 | The appellant was arrested at a house in Sinagra on a charge of aggravated burglary. Police searched the house and located a small clip seal bag containing approximately 0.1g of methamphetamine. The appellant admitted it belonged to him. The appellant was 35 years old, had been exposed to substance abuse and domestic violence as a child and had an extensive criminal history, which included prior convictions for drug offences. The appellant had two children and was said to be remorseful and motivated to address his substance use. | Total sentence: 7 years imprisonment Individual sentence for s 6(2) offence (methamphetamine): $200 fine | The appeal was dismissed. |
| Karakuyu v State of Western Australia [2012] WASCA 75 | Police executed a search warrant at the appellant's house in Dianella and discovered amongst other things, two cannabis grinders which included small quantities of cannabis and approximately 0.01 grams of methamphetamine. On a later date, police found at the appellant's house 62 dexamphetamine tablets which had been prescribed to a 'Mr Roberts.' The appellant was 29 years old, pleaded guilty at a late stage and had no prior drug offences. | Total imprisonment: 6 years and 3 months. Individual sentence for s 6(2) offence (dexamphetamine): 3 months. Individual sentence for s 6(2) offence (cannabis): $50. Individual sentence for s 6(2) offence (methamphetamine): $100. | Appeal dismissed. |
| Vulin v Kirkman [2012] WASC 331 | Police searched the appellant's home and found a plastic clip-seal bag containing approximately 0.5g of methamphetamine in her handbag. The appellant admitted that the methamphetamine belonged to her. The appellant was also convicted of possessing a prohibited weapon and possessing two controlled weapons contrary to the Weapons Act 1999. The appellant had tertiary qualifications and was previously employed. The appellant had two character references which attested to her past good character and the unlikelihood of her reoffending. | Total sentence: $300 fine | Appeal allowed in part. The individual sentences imposed for the offences were not challenged on appeal. |
| State of Western Australia v Hyder [2011] WASCA 256 | Police searched the respondent's rented aircraft hanger and found items consistent with the manufacture of methamphetamine. In addition, the police found a clip seal bag containing 2.93g of methamphetamine with a purity of approximately 3%. The respondent was 48 years old and had a lengthy record of prior convictions including possession of methamphetamine. The pre-sentence report noted that the respondent had no mental health issues. The respondent admitted to using drugs daily. He had not ceased using drugs at the time of sentencing and had not undertaken counselling or treatment for substance abuse. The respondent was found to be remorseful, at low risk of reoffending and had good prospects of rehabilitation. | Total sentence: 4 years imprisonment, conditionally suspended for 2 years. Individual sentence for s 6(2) offence (methamphetamine): 1 year imprisonment (cumulative) conditionally suspended for 2 years. | Appeal allowed. State appeal against sentence on ground that the individual sentences, including the sentence for the s 6(2) offence, was manifestly inadequate. The Court of Appeal set aside the conditional suspension of the sentence of 3 years on another charge. Accordingly, pursuant to s 81(3)(b) of the SA, the order conditionally suspending the term of 1 years' imprisonment on the simple possession offence was also set aside. The Court ultimately ordered 1 year immediate imprisonment in respect of the s 6(2) offence. |
| Trang v Western Australia [2010] WASCA 44 | Police executed a search warrant at a residential premises. Police discovered 0.46g of heroin and 11 MDMA tablets weighing 2.49 grams in the appellant's bedroom. On another date, the appellant's car was stopped and searched in a car park. Police discovered two plastic bags containing a total of 2.65g of methamphetamine and a plastic bag containing 3.9g of heroin in the vehicle. The appellant was 38 years old and had an entrenched drug use habit. The appellant had a criminal history comprising of drug possession offences. The pre-sentencing report indicated that the appellant demonstrated a lack of remorse and responsibility. The appellant plead guilty at the earliest possible opportunity and provided character references. | Total sentence: 4 years. Individual sentence for s 6(2) offence (heroin): 8 months cumulative. Individual sentence for s 6(2) offence (MDMA): 8 months concurrent Individual sentence for s 6(2) offence (methamphetamine): 16 months concurrent Individual sentence for s 6(2) offence (heroin): 16 months cumulative. | Appeal allowed. |
| Snadden v O'Keefe [2009] WASC 26 | The appellant was convicted of being in possession of methamphetamine with intent to sell or supply to another, and possession of stolen or unlawfully obtained property, namely $1,105 in cash. The amount of methamphetamine was not specified in the facts. The appellant was 32 years of age and worked as a builder's labourer. The appellant had a history of drug use but was undergoing rehabilitation. The appellant had a number of previous convictions, including for drug offences. | Total sentence, including for a s 6(1)(a) offence (methamphetamine): 9 months imprisonment suspended for 18 months | Appeal allowed. The grounds of appeal alleged that the Magistrate erred in rejecting that the cash the subject of the second charge was money received from the bank and not from selling methamphetamine, and therefore the Magistrate erred in finding the accused guilty of possessing methamphetamine with intent to sell or supply. The Court quashed both convictions and set aside the penalty imposed. The Court convicted the appellant under s 6(2) and imposed a fine of $1,250 for the offence. |
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SW
Associate to the Honourable Justice Archer18 JUNE 2020
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