Donaldson v The State of Western Australia - [2018] WASCA 143

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DONALDSON -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 143
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   4 MAY 2018
DELIVERED          :   4 MAY 2018
PUBLISHED           :   10 AUGUST 2018
FILE NO/S:   CACR 196 of 2017
BETWEEN:   NICHOLAS GORDON DONALDSON
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STEVENSON DCJ
File Number             :   IND 284 of 2017

Catchwords:

Criminal law - Appeal against sentence - Possession of methylamphetamine with intent to sell or supply - 5.69 g of methylamphetamine - Plea of guilty - Sentence of 2 years 3 months' immediate imprisonment - Manifest excess

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Ms N R Sinton
Respondent	:	Mr J A Scholz

Solicitors:

Appellant	:	Legal Aid
Respondent	:	Director of Public Prosecutions (WA)

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

Apkarian v The State of Western Australia [2015] WASCA 67
Fenton v The State of Western Australia [2015] WASCA 255
Haasy v The State of Western Australia [2010] WASCA 207
Howard v The State of Western Australia [2016] WASCA 70
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Maric v The State of Western Australia [2015] WASCA 190
Pepper v The State of Western Australia [2005] WASCA 177; (2005) 30 WAR 447
Potaka v The State of Western Australia [2017] WASCA 98
Stewart v The State of Western Australia [2014] WASCA 195
Swains v The State of Western Australia [2007] WASCA 251
The State of Western Australia v Vartolo [2015] WASCA 53
Tran v The State of Western Australia [2016] WASCA 37
Trang v The State of Western Australia [2010] WASCA 44
Truscott v The State of Western Australia [2016] WASCA 58

REASONS OF THE COURT:

This is an appeal against sentence.
The appellant was convicted, on his plea of guilty, on a single count in an indictment which alleged that on 18 February 2016, at Middle Swan, he had in his 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).
On 1 September 2017, Stevenson DCJ sentenced the appellant to 2 years 3 months' immediate imprisonment, backdated to 28 July 2016. A parole eligibility order was made.
The sole ground of appeal alleges that the sentence of 2 years 3 months' immediate imprisonment was manifestly excessive. On 19 November 2017, Mazza JA granted leave to appeal.
On 4 May 2018, this court heard the appeal. At the conclusion of the hearing the appeal was dismissed. We said that reasons for our decision would be published later. These are our reasons.

The facts and circumstances of the offending

On 18 February 2016, at about 7.45 pm, the appellant was a passenger in a motor vehicle travelling on Toodyay Road, Middle Swan.
Police stopped the motor vehicle. They searched the vehicle and its occupants. Police officers located in the rear right hand side footwell a 'black camera type case' which contained methylamphetamine, cannabis and smoking implements.
The methylamphetamine was stored in eight separate clipseal bags.
The total quantity of methylamphetamine was 5.69 g. The largest individual quantity, namely 2.37 g, was tested for purity. It had a purity of 79%.

The sentencing judge's sentencing remarks and the appellant's personal circumstances

The sentencing judge sentenced the appellant on the basis that he was 'a low‑level user/dealer with respect to the drugs, the subject of this offence' (ts 21). His Honour found that the appellant was prepared to disseminate methylamphetamine in the community to other people with whom he was associated. At the time the appellant was addicted to the drug and fully appreciated the harm it causes.
The appellant was born on 3 December 1980. He was aged 35 at the time of the offending and was 36 when sentenced.
The appellant was born in Scotland. He had a difficult and dysfunctional childhood. In 2001 he migrated to Australia with his wife and their child. The appellant and his wife had two further children. In 2008 the marriage disintegrated.
Prior to the end of his marriage, the appellant suffered a serious back injury in a work‑related accident. The appellant then relapsed into the use of prohibited drugs. Between 2009 and 2012 he abstained from using prohibited drugs. However, in 2012 he relapsed as a result of his association with negative peers.
The information before his Honour included a pre‑sentence report dated 13 April 2017 and a psychological report dated 17 March 2017. The psychologist assessed the appellant as having mild depression arising from his personal circumstances. The psychological report indicated that the appellant has antisocial behavioural and personality traits.
On 18 February 2016, the appellant was charged with the offence in question. He failed to attend court on 4 March 2016 and was not apprehended until 28 July 2016.
The sentencing judge allowed the appellant a discount of 10% on the 'head sentence' he would otherwise have imposed, pursuant to s 9AA of the Sentencing Act 1995 (WA).
The appellant has a prior criminal record. His previous convictions include possession of prohibited drugs (multiple offences); possession of drug paraphernalia; supplying a prohibited drug; breach of bail (multiple offences); and traffic offences. The appellant disputed that he had a prior conviction for possession of prohibited drugs with intent to sell or supply. His Honour was content to sentence on the basis that that conviction was for simple possession only. The appellant had not previously been sentenced to a term of imprisonment.
Prior to being remanded in custody on 28 July 2016, the appellant had been on the wait list for Cyrenian House and had been attending counselling. After he was remanded in custody, the appellant had engaged in a drug and alcohol programme, a life skills re‑entry programme and vocational training. The appellant was motivated to abstain from using methylamphetamine and had been abstinent during his remand in custody.

The appellant's submissions

Counsel for the appellant submitted that the sentence of 2 years 3 months' immediate imprisonment was manifestly excessive having regard to the following factors.
First, the appellant had pleaded guilty at 'a relatively early stage', prior to committal for trial.
Secondly, the quantity of methylamphetamine was not as significant as in other cases concerning user/dealers who had received lesser or equivalent sentences.
Thirdly, the appellant's offending was not aggravated by having been committed while on bail or subject to court orders.
Fourthly, the appellant had taken steps, both prior to and during his remand in custody, to address his use of methylamphetamine and, at the time of sentencing, he was abstinent.
Fifthly, the appellant had experienced trauma, deprivation and disadvantage as a child.

The merits of the ground of 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 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 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. See Lowndes v The Queen.[1]
[1] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
At the material time, the maximum penalty for the offence of possessing methylamphetamine 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)(a) 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 organization, 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 Pepper v The State of Western Australia;[2] Swains v The State of Western Australia;[3] Trang v The State of Western Australia;[4] Haasy v The State of Western Australia;[5] Stewart v The State of Western Australia;[6] Apkarian v The State of Western Australia;[7] Maric v The State of Western Australia;[8] Fenton v The State of Western Australia;[9] Tran v The State of Western Australia;[10] Truscott v The State of Western Australia;[11] Howard v The State of Western Australia;[12] and Potaka v The State of Western Australia;[13] and the cases cited in those decisions.
[2] Pepper v The State of Western Australia [2005] WASCA 177; (2005) 30 WAR 447.
[3] Swains v The State of Western Australia [2007] WASCA 251.
[4] Trang v The State of Western Australia [2010] WASCA 44.
[5] Haasy v The State of Western Australia [2010] WASCA 207.
[6] Stewart v The State of Western Australia [2014] WASCA 195.
[7] Apkarian v The State of Western Australia [2015] WASCA 67.
[8] Maric v The State of Western Australia [2015] WASCA 190.
[9] Fenton v The State of Western Australia [2015] WASCA 255.
[10] Tran v The State of Western Australia [2016] WASCA 37.
[11] Truscott v The State of Western Australia [2016] WASCA 58.
[12] Howard v The State of Western Australia [2016] WASCA 70.
[13] Potaka v The State of Western Australia [2017] WASCA 98.
As to the five factors referred to by counsel for the appellant in her submissions:
(a)The appellant's plea of guilty was taken into account by the sentencing judge and an appropriate discount was given.
(b)The prior cases we have considered concerned quantities of methylamphetamine or other illicit drugs that are reasonably comparable to the quantity possessed by the appellant. The sentencing outcomes in the prior cases do not demonstrate or indicate that the sentence imposed on the appellant was unreasonable or plainly unjust. After taking into account the material differences between the facts and circumstances of the prior cases and the facts and circumstances of the present case, it is apparent that the sentence imposed on the appellant is broadly consistent with the sentencing outcomes in the prior cases.
(c)The absence of aggravating factors is not mitigatory. See The State of Western Australia v Vartolo.[14] The appellant's prior criminal record demonstrated that he was not a person of prior good character. His offending was not an aberration.
(d)The appellant's steps towards rehabilitation were commendable, but not exceptional. No special leniency was warranted.
(e) The appellant's difficult and dysfunctional childhood was unfortunate, but not a mitigating factor of any significance. As we have mentioned, matters personal to an offender who has dealt or trafficked in dangerous drugs of addiction will almost always be subsidiary considerations.
[14] The State of Western Australia v Vartolo [2015] WASCA 53 [65] (Mazza JA; McLure P & Buss JA agreeing).
The appellant was aged 35 at the time of the offending and was 36 when sentenced. He was not youthful or inexperienced for sentencing purposes.
As we have mentioned, the appellant had a prior criminal record including prior convictions for possession of prohibited drugs (multiple offences), possession of drug paraphernalia and supplying a prohibited drug. The fact that the previous sentences did not achieve the purpose for which they were imposed did not aggravate the seriousness of his current offending.
The principal sentencing factors were appropriate punishment and personal and general deterrence.
In our opinion, the sentence of 2 years 3 months' immediate imprisonment is broadly consistent with reasonably comparable cases. After evaluating the sentence, in the context of the maximum penalty, the facts and circumstances of the offending, the standards of sentencing customarily observed, the place which the appellant's offending occupies on the relevant scale of seriousness of offences of this kind and all mitigating factors, we are satisfied that the sentence was not unreasonable or plainly unjust. The existence of error is unable to be inferred from the sentencing outcome.
The ground of appeal fails.

Conclusion

For these reasons, we decided at the conclusion of the hearing of the appeal that the appeal should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DR
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICE BUSS
10 AUGUST 2018