Donaldson v The State of Western Australia
[2020] WASCA 193
•20 NOVEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DONALDSON -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 193
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 1 SEPTEMBER 2020
DELIVERED : 1 SEPTEMBER 2020
PUBLISHED : 20 NOVEMBER 2020
FILE NO/S: CACR 90 of 2020
BETWEEN: ANGIE DONALDSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: LONSDALE DCJ
File Number : IND 164 of 2019
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on her plea of guilty of one count of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another - Manifest excess
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Appeal allowed
Primary judge's sentencing decision set aside
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | Mr S F Rafferty |
| Respondent | : | Mr J A Scholz |
Solicitors:
| Appellant | : | Seamus Rafferty Barristers & Solicitors |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Cant v The State of Western Australia [2009] WASCA 188
Dinh v The State of Western Australia [2019] WASCA 167
Greenfield v The State of Western Australia [2019] WASCA 29
Italiano v The State of Western Australia [2020] WASCA 115
Nguyen v The State of Western Australia [2019] WASCA 56
Staiger v The State of Western Australia [2020] WASCA 99
The State of Western Australia v Berlingeri [2011] WASCA 242
The State of Western Australia v Hunter [2014] WASCA 87
The State of Western Australia v Littlefair [2013] WASCA 177
Towler v The State of Western Australia [2018] WASCA 141
REASONS OF THE COURT:
This is an appeal against sentence.
The appellant was jointly charged with John Cain on an indictment which alleged a number of drug and other offences.
On 14 February 2020, the appellant pleaded guilty to count 6 which pleaded that on 27 June 2018, at Northam, Mr Cain and the appellant had in their possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act). The State discontinued the remaining counts against the appellant in the indictment.
On 26 June 2020, Lonsdale DCJ sentenced the appellant to 4 years 6 months' immediate imprisonment. The sentence was backdated to 8 December 2018. A parole eligibility order was made.
The appellant appealed to this court. The sole ground of appeal alleged that the sentence imposed on her was manifestly excessive.
On 1 September 2020, this court heard the appeal.
At the conclusion of the hearing of the appeal, this court made orders as follows:
(a)appeal allowed;
(b)the sentencing decision, including the sentence imposed and the orders made by the sentencing judge, are set aside;
(c)the appellant is resentenced to 2 years' immediate imprisonment;
(d)the new sentence is to be taken to have taken effect on 8 December 2018; and
(e)the appellant is eligible for parole.
When this court made those orders the court said that reasons for judgment would be published at a later date. These are our reasons.
The facts and circumstances of the offending and the appellant's personal circumstances
The facts and circumstances of the appellant's offending were not in dispute before the sentencing judge or this court.
On 27 June 2018, Mr Cain was driving a motor vehicle with New South Wales number plates along Great Eastern Highway near Northam. The appellant was sitting in the front passenger seat. Police stopped the vehicle.
Mr Cain informed the police that there was $13,000 cash in the vehicle.
Police seized the vehicle.
When police searched the vehicle they located very significant quantities of methylamphetamine and cocaine.
The State accepted that the appellant's involvement in relation to the drugs found in the vehicle was limited to 23.6 g of methylamphetamine located in a cavity between the glovebox and the dashboard. The drug had a purity of 77%.
The State also accepted that:
(a)the appellant possessed those drugs jointly with Mr Cain;
(b)some of the drugs would have been used personally by the appellant; and
(c)the appellant did not stand to gain any financial benefit from the sale or supply of the drugs and, consequently, there was a lack of 'commerciality' in her case.
Her Honour accepted those concessions by the State.
The appellant was born on 13 October 1982. She was aged 37 at the time of sentencing. Her childhood was uneventful. She completed year 10 at school. After leaving school the appellant was in regular employment in various unskilled roles, including as a factory hand, a cleaner and a traffic controller. She maintained employment until she had children. At the time of sentencing the appellant's children were aged 16 and 11 and were being cared for by their father.
The appellant had a criminal history comprising mainly traffic offences in New South Wales. However, she had no previous convictions for drug offences, apart from an offence of driving with an illicit drug in her blood.
The sentencing judge found that there were a number of mitigating factors in relation to the appellant's offending. The appellant cooperated with the police during a video‑recorded interview. She gave the police access to her mobile telephone. The appellant entered an early plea of guilty for which her Honour allowed a discount of 20% under s 9AA of the Sentencing Act 1995 (WA). The appellant was very remorseful for her offending. Imprisonment would be more difficult for the appellant because she would be separated from her family and children, who reside in New South Wales.
Her Honour remarked that it was to the appellant's credit that she had completed a number of courses while on remand.
The information before the sentencing judge included a pre‑sentence report dated 6 March 2020 and three written references as to the appellant's character.
The State's concession that the sentence was manifestly excessive
At the hearing of the appeal, counsel for the State conceded that the sentence of 4 years 6 months' immediate imprisonment imposed by the sentencing judge was manifestly excessive, having regard to the following:
(a)the appellant's early plea of guilty;
(b)the quantity of methylamphetamine in question;
(c)the appellant's involvement in the offending lacked 'commerciality';
(d)the applicable maximum penalty; and
(e)the standards of sentencing customarily observed for offending in broadly comparable circumstances.
The merits of the appeal
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.
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.
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.
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.
At the material time, the maximum penalty for the offence of possessing a quantity of methylamphetamine less than 28 g, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, was 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(aa) of the MD Act.
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.
We have had regard to the sentencing dispositions in a range of cases including Cant v The State of Western Australia;[1] The State of Western Australia v Berlingeri;[2] The State of Western Australia v Littlefair;[3] The State of Western Australia v Hunter;[4] Towler v The State of Western Australia;[5] Greenfield v The State of Western Australia;[6] Nguyen v The State of Western Australia;[7] Dinh v The State of Western Australia;[8] Staiger v The State of Western Australia;[9] Italiano v The State of Western Australia.[10]
[1] Cant v The State of Western Australia [2009] WASCA 188.
[2] The State of Western Australia v Berlingeri [2011] WASCA 242.
[3] The State of Western Australia v Littlefair [2013] WASCA 177.
[4] The State of Western Australia v Hunter [2014] WASCA 87.
[5] Towler v The State of Western Australia [2018] WASCA 141.
[6] Greenfield v The State of Western Australia [2019] WASCA 29.
[7] Nguyen v The State of Western Australia [2019] WASCA 56.
[8] Dinh v The State of Western Australia [2019] WASCA 167.
[9] Staiger v The State of Western Australia [2020] WASCA 99.
[10] Italiano v The State of Western Australia [2020] WASCA 115.
It is unnecessary to reproduce the facts and circumstances of the prior cases we have considered or the sentencing outcomes. There are some comparable features between some of the prior cases and the present case, but there are also distinguishing features.
A sentence of 4 years 6 months' immediate imprisonment would not necessarily be manifestly excessive in some cases involving the sole or joint possession of 23.6 g of methylamphetamine with intent to sell or supply it to another. However, as we have mentioned, although the weight of the drugs in question is a matter of importance, other matters must be taken into account in determining the seriousness of the offence. In the presence case, it was of significance that the appellant did not stand to gain any financial benefit from the sale or supply of the drugs and, consequently, there was a lack of 'commerciality' in her case. Also, there was no finding that the appellant had a particular role in the distribution of that part of the drugs which she would not have used personally. As we have mentioned, the appellant possessed the drugs jointly with Mr Cain.
In our opinion, the sentence of 4 years 6 months' immediate imprisonment imposed by the sentencing judge was manifestly excessive. In other words, when the sentence is viewed from the perspective of the maximum penalty, and after taking into account all relevant facts and circumstances and all relevant sentencing factors, including:
(a)the seriousness of the offence;
(b)the place which the appellant's criminality occupies on the scale of seriousness of offences of this kind;
(c)the general pattern of sentencing in reasonably comparable cases;
(d)the importance of personal and general deterrence as sentencing considerations;
(e)the appellant's plea of guilty, her personal circumstances and all other mitigating factors; and
(f)all other relevant sentencing considerations,
the sentence of 4 years 6 months' immediate imprisonment was unreasonable or plainly unjust.
We would imply or infer error from the sentencing outcome.
The ground of appeal has been made out and the appeal must be allowed.
At the hearing of the appeal this court had the material necessary to resentence the appellant.
Like her Honour, we allowed a discount of 20%, pursuant to s 9AA of the Sentencing Act, for the appellant's plea of guilty.
We also reduced the sentence we would otherwise have imposed on account of the other mitigating factors referred to at [19] above.
After taking into account the maximum penalty; the facts and circumstances of the appellant's offending; the general pattern of sentencing in reasonably comparable cases; and all other relevant sentencing considerations, we imposed a sentence of 2 years' immediate imprisonment, with eligibility for parole, and ordered that the new sentence be taken to have taken effect on 8 December 2018.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss20 NOVEMBER 2020
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