Fenton v The State of Western Australia - [2015] WASCA 255

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FENTON -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 255

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 18 NOVEMBER 2015

DELIVERED : 14 DECEMBER 2015

FILE NO/S: CACR 173 of 2015

BETWEEN: KANE VINCENT FENTON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'NEAL DCJ
File No  :IND BUN 13 of 2015

Catchwords:

Criminal law - Appeal against sentence - Possession of methylamphetamine with intent to supply - Manifest excess in type - Whether sentence should have been suspended

Legislation:

Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D S Hunter
Respondent: Mr J McGrath SC

Solicitors:

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

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

Apkarian v The State of Western Australia [2015] WASCA 67
Attenborough v The State of Western Australia [2005] WASCA 132
Barbaro v The Queen (2014) 253 CLR 58
Benedetti v The State of Western Australia [2004] WASCA 278
Coleski v The State of Western Australia [2008] WASCA 260
Crichton v The State of Western Australia [No 2] [2014] WASCA 37
Duong v The State of Western Australia [2006] 32 WAR 246
Hili v The Queen (2010) 242 CLR 520
Jackson v The State of Western Australia [2008] WASCA 95
Ness v The State of Western Australia [No 2] [2013] WASCA 56
Pepper v The State of Western Australia [2005] 30 WAR 447
Riley v Smirk [2011] WASCA 200
Samuel v The State of Western Australia [2004] WASCA 154
Swains v The State of Western Australia [2007] WASCA 251
The State of Western Australia v Baldini [2015] WASCA 39
The State of Western Australia v Thompson [2014] WASCA 108
Vogel v The State of Western Australia [2002] WASCA 261
Watt v The Queen [2000] WASCA 354

McLURE P: This is an appeal against sentence. On 21 September 2015 the appellant was convicted on his fast‑track plea of guilty of one count of possessing methylamphetamine with intent to sell or supply, contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA) (the MDA).
The amount of methylamphetamine was 5.19 g, the purity of which was as follows:
-1.69 g at 75%;
-1.68 g at 66%; and
-1.82 g (unknown).
O'Neal DCJ sentenced the appellant to 10 months immediate imprisonment for this offence.
The appellant also pleaded guilty to five drug‑related summary charges the subject of a notice under s 32 of the Sentencing Act 1995 (WA). The appellant was fined a total of $850 for those offences.
The sole ground of appeal is that the sentence of 10 months immediate imprisonment is manifestly excessive in type. The contention is that the sentence of imprisonment should have been suspended on conditions.
The facts of the indictable offence are as follows. At about 1.35 pm on Tuesday 7 October 2014 police executed a search warrant at the appellant's home in Collie. The appellant, his partner and a female visitor were present at the time of the search. The appellant was interviewed under caution at the scene and stated that he had an '8-ball' of methylamphetamine, which he had recently purchased for $3,000 cash, in the front pocket of his shorts. The methylamphetamine consisted of the two amounts of 1.69 g and 1.68 g.
The appellant also stated that he had 'half an 8-ball' of methylamphetamine. This was located in a clear plastic bag on the lounge room floor. It weighed 1.82 g. The appellant said he was in the process of dividing up the drug into smaller clipseal bags using a set of scales located nearby.
The appellant admitted that he intended to supply some of the drug to his friends. The female visitor admitted that she was a recreational drug user and was at the address for the purpose of obtaining and using methylamphetamine.
The appellant was aged 31 at the time of the offence. His illicit substance use commenced with cannabis at the age of about 10 ‑ 12. He regularly used cannabis throughout his school years in New Zealand. The appellant commenced using methylamphetamine from the age of 20 after witnessing his father suffer severe injuries in a workplace accident at a sawmill which ultimately led to the amputation of his father's leg.
After being charged with the indictable offence, the appellant ceased using methylamphetamine but not cannabis. At the time of the pre‑sentence report, the appellant had not entered into any drug rehabilitation but said he was motivated to engage with a drug counselling service.
The appellant had a prior offence of possession of a prohibited drug and a number of traffic convictions.
On the subject of the appellant's prospects of rehabilitation, the sentencing judge said:
It's difficult to say exactly what your prospects for rehabilitation are and that does not reflect on whatever it is that you actually believe about what you want to do about the problem now. That's the nature of long-term drug abuse.
The fact that you have expressed some willingness to undergo treatment is obviously helpful. The fact that you have, as you say, stopped using methylamphetamine suggests that there is at least some prospect that you're going to be able to come to grips with this. You know, if what you have seen so far about the circumstances of your life as a consequence of methylamphetamine aren't enough [it is] hard to say what counselling is going to do (ts 24 ‑ 25).
These reservations relating to rehabilitation are based on, and justified by, lengthy judicial experience in sentencing for drug offences.
The appellant was sentenced on the basis that his intention was to supply the methylamphetamine to friends without charge and to use some himself, and that there was no commercial aspect to his possession (ts 23).
In order to enliven this court's power to intervene, the appellant must establish that the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess relies on the implication of error from the sentence itself. The ultimate issue is whether the sentence of 10 months immediate imprisonment is unreasonable or plainly unjust.
In determining that question, regard is had to the maximum penalty for the offence, the standards of sentencing customarily imposed for an offence of that type, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.
Sentences customarily imposed provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors. What is important is the unifying principles which sentences imposed in comparable cases both reveal and reflect: Barbaro v The Queen (2014) 253 CLR 58 [41]; Hili v The Queen (2010) 242 CLR 520 [54].
The sentencing principles for s 6(1) MDA offences are well known. See The State of Western Australia v Baldini [2015] WASCA 39 [23] ‑ [28]. Ordinarily, a term of immediate imprisonment is the only appropriate sentencing option. That is so even in the absence of commerciality: The State of Western Australia v Thompson [2014] WASCA 108 and the cases cited at [36]. The gravamen of the offence is the distribution of illicit drugs, which cause significant damage in, and to, our communities. The adverse impact on smaller rural communities is heightened.
The imposition of a suspended term is, as a matter of fact, exceptional. Having regard to all relevant sentencing considerations, this case does not fall within the exceptional category. See Baldini [24]. In relation to relatively small quantities of drugs, see Crichton v The State of Western Australia [No 2] [2014] WASCA 37; Attenborough v The State of Western Australia [2005] WASCA 132; Thompson; Samuel v The State of Western Australia [2004] WASCA 154; Ness v The State of Western Australia [No 2] [2013] WASCA 56; Coleski v The State of Western Australia [2008] WASCA 260; Duong v The State of Western Australia [2006] 32 WAR 246; Riley v Smirk [2011] WASCA 200; Swains v The State of Western Australia [2007] WASCA 251; Jackson v The State of Western Australia [2008] WASCA 95; Pepper v The State of Western Australia [2005] 30 WAR 447; Apkarian v The State of Western Australia [2015] WASCA 67; Benedetti v The State of Western Australia [2004] WASCA 278; Vogel v The State of Western Australia [2002] WASCA 261; Watt v The Queen [2000] WASCA 354.
The lack of commerciality and other sentencing considerations are properly reflected in the length of the term. The sentencing judge did not err in imposing a term of immediate imprisonment. The appeal must be dismissed.

BUSS JA: I agree with McLure P.
MAZZA JA: I agree with McLure P.