Golding v Gaunt

[2020] WASC 361

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   GOLDING -v- GAUNT [2020] WASC 361

CORAM:   MCGRATH J

HEARD:   8 OCTOBER 2020

DELIVERED          :   9 OCTOBER 2020

FILE NO/S:   SJA 1025 of 2020

BETWEEN:   CRAIG RAYMOND GOLDING

Appellant

AND

LINDSAY GAUNT

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE JOHNSTON

File Number            :   AL 2877 of 2018, AL 2879 of 2018, AL 2880 of 2018, AL 2881 of 2018, AL 2882 of 2018, AL 2883 of 2018, AL 2885 of 2018, AL 2886 of 2018, AL 2887 of 2018, AL 2889 of 2018, AL 2890 of 2018, AL 2891 of 2018, AL 3124 of 2018, AL 218 of 2019, AL 403 of 2019.

Catchwords:

Criminal law – Sentencing – Appeal against immediate term of imprisonment – Possession of drugs with intent to supply to another – Whether sentence manifestly excessive – Breach of totality principle – Express error – Breach of procedural fairness – Appeal dismissed

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9, s 14(2)
Criminal Investigation Act 2006 (WA), s 61(2)
Misuse of Drugs Act 1981 (WA), s 6, s 7B(6)
Road Traffic Act 1974 (WA), s 64AC(1)
Sentencing Act 1995 (WA), s 39, s 76

Result:

Leave to appeal not granted on grounds 1, 2 and 3
Appeal is dismissed

Category:    B

Representation:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	Ms M M Yeung

Solicitors:

Appellant	:	Kate King Legal Pty Ltd
Respondent	:	Director of Public Prosecutions (WA)

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

Apkarian v The State of Western Australia [2015] WASCA 67

Cartwright v The State of Western Australia [2010] WASCA 4

Chan v The Queen (1989) 38 A Crim R 337

Chow v Director of Public Prosecutions (1992) 28 NSWLR 593

Crichton v The State of Western Australia [No 2] [2014] WASCA 37

Dahl v Arnold [2020] WASC 224

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

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

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

Fogg v The State of Western Australia [2011] WASCA 11

Goodwin v The State of Western Australia [2017] WASCA 184

Hayter v Thomson [2020] WASC 194

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Italiano v The State of Western Australia [2020] WASCA 115

Kioa v West (1985) 159 CLR 550

Lovell v The State of Western Australia [2019] WASCA 169

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

Ness v The State of Western Australia [No 2] [2013] WASCA 56

Parker v Director of Public Prosecutions (1992) 28 NSWLR 282

R v Holder & Johnston [1983] 3 NSWLR 245

Roffey v The State of Western Australia [2007] WASCA 246

Samuel v The State of Western Australia [2004] WASCA 154

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Teakle v The State of Western Australia (2007) 33 WAR 188

The State of Western Australia v Thompson [2014] WASCA 108

Wiltshire v Mafi [2010] WASCA 111

MCGRATH J:

1. On 21 February 2020 Mr Golding was sentenced, upon pleas of guilty, to 18 charges, comprising 12 offences of offering to supply a prohibited drug contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA); two offences of possessing a prohibited drug contrary to s 6(2) of the Misuse of Drugs Act; two offences of possessing drug paraphernalia in which there was a prohibited drug contrary to s 7B(6) of the Misuse of Drugs Act; one offence of driving with a prescribed illicit drug in oral fluid contrary to s 64AC(1) of the Road Traffic Act 1974 (WA); and one offence of failing to obey a data access order contrary to s 61(2) of the Criminal Investigation Act 2006 (WA).

2. The learned magistrate sentenced Mr Golding in relation to the 12 offences of offering to supply a prohibited drug (the offer to supply offences) to a total effective sentence of 1 year 8 months' immediate imprisonment.  Mr Golding was made eligible for parole.  The other offences were dealt with by way of the imposition of fines.

3. Mr Golding now seeks leave to appeal against the sentence of immediate imprisonment imposed on the offer to supply offences on three grounds alleging express and implied errors.  Mr Golding contends that the learned magistrate did not afford him procedural fairness at the sentencing hearing and that the term of imprisonment was manifestly excessive in that a different type of sentence should have been imposed, namely a suspended term of imprisonment.

4. For the following reasons, I have determined that leave to appeal should not be granted and the appeal should be dismissed.

5. In these reasons for decision I will consider the following:

   1.The Magistrates Court proceedings.

   2.The grounds of appeal.

   3.An assessment of the merits of the appeal.

Magistrates Court proceedings

1. Mr Golding pleaded guilty to the following 18 charges:

   1.one charge of possessing a prohibited drug namely methylamphetamine contrary to s 6(2) of the Misuse of Drugs Act (AL 3123/2018);

   2.one charge of possessing a prohibited drug namely cannabis contrary to s 6(2) of the Misuse of Drugs Act (AL 3124/2018);

   3.one charge of possessing drug paraphernalia, namely a glass pipe, in which there was a prohibited drug, namely methylamphetamine, contrary to s 7B(6) of the Misuse of Drugs Act (AL 3125/2018);

   4.one charge of possessing drug paraphernalia, namely a plastic smoking implement, in which there was a prohibited drug, namely cannabis, contrary to s 7B(6) of the Misuse of Drugs Act (AL 3126/2018);

   5.one charge of driving a motor vehicle on a road whilst a prescribed illicit drug was present in his oral fluid contrary to s 64AC(1) of the Road Traffic Act (AL 218/2019);

   6.seven charges of offering to supply a prohibited drug, namely cannabis, to another contrary to s 6(1)(c) of the Misuse of Drugs Act (AL 2877/2018, AL 2879/2018, AL 2881/2018, AL 2882/2018, AL 2885/2018, AL 2886/2018, AL 2891/2018);

   7.five charges of offering to supply a prohibited drug, namely methylamphetamine, to another contrary to s 6(1)(c) of the Misuse of Drugs Act (AL 2880/2018, AL 2883/2018, AL 2887/2018, AL 2889/2018, AL 2890/2018); and

   8.one charge of having been served with a data access order and without reasonable excuse, did not obey that data access order by providing the access code to one target device listed on the order, contrary to s 61(2) of the Criminal Investigation Act (AL 403/2019).

2. The facts upon which Mr Golding was sentenced were in the following terms.[1]

Charges AL 3123/2018 – AL 3126/2018

[1] ts 7 ‑ 10 (13/02/2020).

1. At 11.40 am on 6 December 2018 police executed a Misuse of Drugs Act search warrant at an address in Spencer Park.  Mr Golding was arrested in close proximity to the property and was returned to the address for the search.  The police located in a backpack belonging to Mr Golding a clipseal bag that contained 0.36 g of methylamphetamine (AL 3123/2018).  Further, in a bedroom were two small clipseal bags which contained approximately 2 g of cannabis (AL 3124/2018).

2. A glass smoking implement which contained traces of methylamphetamine was found in a backpack belonging to Mr Golding (AL 3125/2018), and a plastic smoking implement which contained traces of cannabis was located in the lounge room (AL 3126/2018).

Charge AL 218/2019

1. At 11.55 pm on 8 December 2018, Mr Golding was driving a vehicle in Centennial Park when he was stopped by the police and required to submit to a preliminary oral fluid test which returned positive for methylamphetamine.

Charges AL 2877/2018 – AL 2891/2018

1. On 27 July 2018, police were granted a telephone intercept warrant for a mobile phone.  Between 7.49 am and 8.57 am on 23 August 2018 Mr Golding was intercepted using the mobile phone for a telephone call and two text messages with an identified person during which he offered to supply 1 g of cannabis (AL 2877/2018).

2. Between 2.28 pm and 3.52 pm on 26 August 2018, Mr Golding during two phone calls with an identified person, offered to supply half an ounce of cannabis (AL 2879/2018).  Further, between 3.54 pm and 4.50 pm on 26 August 2018, Mr Golding during one telephone call and five text messages with an identified person offered to supply 1.75 g of methylamphetamine (AL 2880/2018).

3. Between 11.12 am and 12.09 pm on 27 August 2018, Mr Golding in eight text messages with an identified person offered to supply $300 worth of cannabis (AL 2881/2018).

4. Between 6.12 pm and 7.01 pm on 28 August 2018, Mr Golding in four text messages with an identified person offered to supply $150 worth of cannabis (AL 2882/2018).  Between 11.26 pm on 29 August 2018 and 2.58 pm on 30 August 2018, Mr Golding in three phone calls and in two text messages with an identified person offered the supply of 0.5 g of methylamphetamine (AL 2883/2018).  At 4.24 pm on 1 September 2018 Mr Golding in a text message with an identified person offered to supply $50 worth of cannabis (AL 2885/2018).

5. Between 8.13 pm and 8.48 pm on 8 September 2018, Mr Golding in two phone calls with an identified person offered to supply 1 g of cannabis (AL 2886/2018).  At 10.30 am on 18 September 2018, Mr Golding in nine text messages with an identified person offered to supply 3.5 g of methylamphetamine (AL 2887/2018).  Between 8.45 pm and 9.17 pm on 24 September 2018, Mr Golding in seven text messages with an identified person offered to supply 1.75 g of methylamphetamine (AL 2889/2018).

6. At 4.45 pm on 12 October 2018, Mr Golding in one text message with an identified person offered to supply 1 g of methylamphetamine (AL 2890/2018).  Further, between 11.10 pm and 11.18 pm on 12 October 2018, Mr Golding in five text messages with an identified person offered to supply 3 g of cannabis (AL 2891/2018).

Charge AL 403/2019

1. On 6 December 2018, during the search of the property at Spencer Park, the police seized a Samsung Galaxy mobile phone which was pin‑protected.  On 21 December 2018, police were granted a data access order requiring Mr Golding to provide the pin codes for the seized device to allow analysis for investigation of a serious offence.

2. On 2 January 2019, police served that order on Mr Golding and explained that he must obey the order by 21 January 2019.  Mr Golding stated that he had forgotten the codes.  On 21 January, police again spoke to Mr Golding, who provided possible codes to the device.  Those codes did not provide access to the device.  On 31 January 2019, police further spoke to Mr Golding, who again stated that he had forgotten the codes.

Sentences imposed

1. On 21 February 2020, Mr Golding was sentenced in respect of the 18 offences.  The offences and the respective sentences imposed by the learned magistrate are outlined in the table below.[2]

   [2] ts 4 ‑ 6 (21/02/2020).

Charge	Date of offence	Term imposed	Cumulative/ concurrent
AL 2877/2018 Offer to supply cannabis (s 6(1)(c) MDA)	23 August 2018	2 months' imprisonment	Concurrent
AL 2879/2018 Offer to supply cannabis (s 6(1)(c) MDA)	26 August 2018 - 28 August 2018	2 months' imprisonment	Concurrent
AL 2880/2018 Offer to supply methylamphetamine  (s 6(1)(c) MDA)	26 August 2018	7 months' imprisonment	Concurrent
AL 2881/2018 Offer to supply cannabis  (s 6(1)(c) MDA)	27 August 2018	2 months' imprisonment	Concurrent
AL 2882/2018 Offer to supply cannabis  (s 6(1)(c) MDA)	28 August 2018	2 months' imprisonment	Concurrent
AL 2883/2018 Offer to supply methylamphetamine  (s 6(1)(c) MDA)	29 August 2018 - 30 August 2018	4 months' imprisonment	Cumulative
AL 2885/2018 Offer to supply cannabis  (s 6(1)(c) MDA)	1 September 2018	2 months' imprisonment	Concurrent
AL 2886/2018 Offer to supply cannabis  (s 6(1)(c) MDA)	8 September 2018	2 months' imprisonment	Concurrent
AL 2887/2018 Offer to supply methylamphetamine (s 6(1)(c) MDA)	18 September 2018	9 months' imprisonment	Head sentence Concurrent
AL 2889/2018 Offer to supply methylamphetamine  (s 6(1)(c) MDA)	24 September 2018	7 months' imprisonment	Cumulative
AL 2890/2018 Offer to supply methylamphetamine  (s 6(1)(c) MDA)	12 October 2018	7 months' imprisonment	Concurrent
AL 2891/2018 Offer to supply cannabis  (s 6(1)(c) MDA)	12 October 2018	2 months' imprisonment	Concurrent
AL 3123/2018 Possess a prohibited drug methylamphetamine (s 6(2) MDA)	6 December 2018	$700 fine (global) Orders for destruction
AL 3124/2018 Possess a prohibited drug cannabis (s 6(2) MDA)	6 December 2018
AL 3125/2018 Possess drug paraphernalia (s 7B(6) MDA)	6 December 2018
AL 3126/2018 Possess drug paraphernalia (s 7B(6) MDA)	6 December 2018
AL 218/2019 Drove with illicit drug in oral fluid (s 64AC(1) RTA)	8 December 2018	$500 fine 6 months' driver's licence disqualification
AL 403/2019 Failure to obey a data access order (s 61(2) CIA)	21 January 2019	$600 fine
Total effective sentence	1 year 8 months' immediate imprisonment to commence 21 February 2020, with eligibility for parole

Appeal

1. The grounds of the appeal are in the following terms:[3]

   [3] Appellant's Amended Appeal Notice filed 14 August 2020.

   1.There was a miscarriage of justice when at no stage prior to imposing an immediate term of imprisonment did her Honour give defence counsel reasonable notice and/or sufficient time to respond to the fact she was going to disregard the prosecutor's concession.

   2.It was not reasonably open to the learned Magistrate to be positively satisfied the term of imprisonment could not be suspended.

   3.The sentence imposed was, in all the circumstances, manifestly excessive:

   Particulars:

   3.1        The pleas of guilty;

   3.2        The appellant's antecedents;

   3.3        The criminality involved;

   3.4        Sentences imposed in, broadly, comparative cases.

2. This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[4]  An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, or both law and fact, acted without or in excess of jurisdiction, imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[5]

   [4] Criminal Appeals Act 2004 (WA) s 9(1).

   [5] Criminal Appeals Act 2004 (WA) s 8.

3. The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[6]  A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[7]

   [6] Criminal Appeals Act 2004 (WA) s 9(2).

   [7] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Robert‑Smith JJA).

4. The court may dismiss or allow the appeal and may set aside or vary the sentence and substitute a sentence that should have been imposed.[8] Section 14(2) of the Criminal Appeals Act provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

   [8] Criminal Appeals Act 2004 (WA) s 14.

5. In considering this appeal, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate.  There is no single correct sentence and the sentencing magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[9]  The sentencing discretion will not have miscarried if it was open to the magistrate, in the proper exercise of the sentencing discretion, to impose the sentence.

   [9] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].

Assessment of the merits of the appeal

Ground 1

1. By ground 1, Mr Golding contends that he suffered a miscarriage of justice when at no stage prior to imposing an immediate term of imprisonment did the learned magistrate give defence counsel reasonable notice and/or sufficient time to respond to the fact that her Honour was going to disregard the prosecutor's concession that a conditional suspended imprisonment order may be the most appropriate sentence.

2. Therefore the gravamen of Mr Golding's complaint is that there has been a breach of the requirement of procedural fairness by the learned magistrate's failure to give counsel notice that the prosecutor's submission regarding a suspended sentence was not accepted.  Mr Golding contends that as a consequence, defence counsel was not able to appropriately make submissions regarding the imposition of a suspended term of imprisonment. 

3. With respect to procedural fairness, in Kioa v West,[10] Mason J stated:[11]

   What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject‑matter, and the rules under which the decision‑maker is acting …

   In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures, which are appropriate and adapted to the circumstances of the particular case.

   [10] Kioa v West (1985) 159 CLR 550.

   [11] Kioa v West (1985) 159 CLR 550, 584 ‑ 585.

4. In Teakle v State of Western Australia,[12] Buss JA stated:[13]

   Absent a clear legislative intent to the contrary, a statutory power conferred on a court must be exercised with procedural fairness … The rules of procedural fairness are concerned with procedures rather than outcomes, and they are therefore rules which govern what a court must do in the course of deciding how a statutory power should be exercised.  In other words, the rules of procedural fairness are to be applied to the procedures by which a decision pursuant to the exercise of the statutory power will be made.

   [12] Teakle v The State of Western Australia (2007) 33 WAR 188.

   [13] Teakle v The State of Western Australia (2007) 33 WAR 188, 205.

5. A court must afford an offender procedural fairness during the sentencing hearing.  In the context of a sentencing hearing, a court must be, and appear to be, impartial, and must provide each party to the proceedings before it with an opportunity to be heard, to advance their respective cases, and to answer the case put against them. 

6. The judicial officer will properly intervene during a plea in mitigation to ensure that relevant sentencing factors are articulated and developed, that factual issues are resolved, and that any questions of law that arise are determined. 

7. A magistrate must make a determination as to the appropriate sentence having regard to all relevant sentencing considerations.  Submissions by counsel may assist the magistrate.  The submissions may inform, but cannot dictate, the sentencing magistrate's assessment and judgment as to the appropriate sentence.[14]

   [14] Fogg v The State of Western Australia [2011] WASCA 11 [12].

8. Circumstances that arise in a particular sentencing hearing may have the consequence that procedural fairness requires that considerations of importance to the judicial officer's determination should be drawn to the notice of the parties affected or their counsel so that a fair opportunity is presented for contrary argument to persuade the judicial officer to a different view.[15]

   [15] Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, 296 (Kirby P).

9. In Chow v Director of Public Prosecutions[16] Kirby P stated:[17]

   [C]ircumstances may exist where a failure on the part of a judge to disclose matters of concern, or a course of conduct contemplated, will [itself] amount to a departure from the rules of procedural fairness … There is a fine line between excessive and unjudicial intervention (on the one hand) and candid disclosure of matters of concern to invite response (on the other).

   [16] Chow v Director of Public Prosecutions (1992) 28 NSWLR 593.

   [17] Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, 606.

1. The present case was one in which the circumstances were such that the learned magistrate was obliged, as a matter of procedural fairness, to alert the defence counsel that she did not necessarily accept the positon agreed to by the parties being that a suspended term of imprisonment was an appropriate disposition. 

2. However, Mr Golding's ground of appeal must fail because the learned magistrate did inform the defence counsel that the agreed position between the parties regarding the appropriate sentencing disposition was not necessarily accepted.  Thereby, the learned Magistrate did afford Mr Golding procedural fairness.

3. At the sentencing hearing on 13 February 2020, after the pleas of guilty were entered, counsel for Mr Golding submitted that his 'ultimate submission' was that any term of imprisonment should be suspended.[18]  The police prosecutor in response informed the learned magistrate that 'the prosecution would be seeking a conditional suspended imprisonment order in relation to this matter.'[19]  Her Honour responded by stating that the facts should be heard.  That response was appropriate given that each counsel had made a submission with respect to disposition in the absence of the learned magistrate having heard the facts upon which the offender was to be sentenced.  It was not possible for her Honour to engage with counsel at that time in respect of the submissions made regarding the type of sentence to be imposed given that the facts had not been read to the court.

   [18] ts 7 (13/02/2020).

   [19] ts 7 (13/02/2020).

4. After the facts were presented by the prosecutor, counsel for Mr Golding made a comprehensive and cogent plea in mitigation in support of his submission that the appropriate disposition was a suspended term of imprisonment.[20]  The prosecutor then delivered submissions confirming that the 'prosecution's position is ultimately that a conditional suspended imprisonment order may be the most appropriate' disposition.[21]

   [20] ts 10 ‑ 12 (13/02/2020).

   [21] ts 13 (13/02/2020).

5. The learned magistrate then stated 'I appreciate that the prosecution is not seeking an immediate term of imprisonment.  But nonetheless, I want to consider the position' and therefore 'I'm not going to deal with sentencing today.'[22]  The learned magistrate then invited counsel for Mr Golding to provide any references regarding the progress made with respect to his rehabilitation.  Accordingly, her Honour made it abundantly clear to counsel for Mr Golding that the submission made by the prosecution that a suspended term of imprisonment was an appropriate disposition was not necessarily accepted and therefore, the sentencing hearing was being adjourned.  At that time counsel could have made further oral submissions but did not do so.  That counsel did not make any further oral submissions is understandable given that counsel had delivered a comprehensive plea in mitigation that addressed all relevant considerations in support of the submission that a suspended term of imprisonment should be imposed.

   [22] ts 14 (13/02/2020).

6. The learned magistrate then addressed Mr Golding stating 'I'm not bound by what the prosecution says, but it is a factor for me to take into account.  So in light of those submissions, I will need some time to consider.'[23]  Her Honour thereby gave further notice to Mr Golding and his counsel that the court did not necessarily accept the prosecution submission.

   [23] ts 14 (13/02/2020).

7. On 21 February 2020 at the sentencing hearing the learned magistrate addressed counsel regarding the references that had been received and then asked Mr Golding's counsel if there was anything further he wished to state.[24]  Counsel made submissions regarding a letter that Mr Golding had written to the court and then referred to 'the very reasonable position that the police have adopted in terms of sentencing' and stated that there was otherwise nothing further he could add.[25]

   [24] ts 2 (21/02/2020).

   [25] ts 2 (21/02/2020).

8. Accordingly, the learned magistrate upon receiving oral submissions from the parties in respect of the type of sentence that may be imposed, namely a suspended term of imprisonment, gave notice to the parties that the submission from the prosecution was not necessarily accepted.  By giving the notice to Mr Golding at the sentencing hearing on 13 February 2020, counsel was given the opportunity to make further oral submissions both at the hearing on 13 February 2020 and on 21 February 2020.  Further, counsel could have provided written submissions prior to the hearing on 21 February 2020.  As I have observed, the fact that counsel did not make any further submissions is most understandable given that counsel delivered a comprehensive and cogent plea in mitigation that addressed all relevant sentencing matters.

9. There is no merit in Mr Golding's contention that he was denied procedural fairness.  Leave is not granted on ground 1.

Grounds 2 and 3

1. I will now consider grounds 2 and 3. 

2. By ground 2 Mr Golding contends that it was not reasonably open to the learned magistrate to be positively satisfied that the term of imprisonment could not be suspended.  This ground asserts implied error.

3. By ground 3 Mr Golding contends that the total effective sentence of 1 year 8 months' imprisonment imposed was manifestly excessive.  This ground also asserts implied error.  A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the length of the term of imprisonment is manifestly excessive.  Mr Golding contends that the wrong type of sentence has been imposed. That is, the type of sentence was manifestly excessive because 'it was reasonably open to the learned magistrate to impose a suspended sentence'.[26]  Accordingly the two grounds conflate.  I will deal with both grounds together.

Legal principles

[26] Appellant's Outline of Submissions filed 13 August 2020 [84] ‑ [85].

1. To determine whether a sentence is manifestly excessive involves considering the maximum sentence prescribed by law for the crime, the standard of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of the kind in question and the personal circumstances of the offender.[27]

   [27] Sentencing Act1995 (WA) s 6; Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600.

2. Properly understood, ground 3 asserts that the learned magistrate breached the totality principle by imposing an immediate term of imprisonment. 

3. A claim that the totality principle is breached asserts implied error.   The practical effect of the totality principle is ordinarily to arrive at an aggregate term that is less than that which would be arrived at by simply adding up all the terms that are appropriate for each of the individual sentences.[28]  The total effective sentence must not be unreasonable or plainly unjust.

   [28] R v Holder & Johnston [1983] 3 NSWLR 245, 360 (Street CJ).

4. The first limb of the totality principle requires that the total effective sentence, when an offender is being sentenced for a number of offences, bears a proper relationship with the overall criminality involved in the offending, viewed in its entirety and having regard to the circumstances of the case, including those referable to the offender personally, all relevant sentencing factors, and the total effective sentences imposed in comparable cases.[29]

   [29] Roffey v The State of Western Australia [2007] WASCA 246 [24].

5. Mr Golding's contention is that in all the circumstances, including those personal to him, the sentence imposed was not one open in the exercise of a sound sentencing discretion.  It requires the court to be satisfied that the sentence is unreasonable or plainly unjust.[30]

   [30] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 324 ‑ 325 (Gleeson CJ & Hayne J).

6. In considering ground 3, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate.  There is no single correct sentence and the magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[31]

   [31] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].

7. The sentencing options available to the court are set out in s 39 of the Sentencing Act 1995 (WA). The ultimate option in s 39(2) is a term of immediate imprisonment and the two preceding that option are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Sentencing Act a court must not use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before that option. A sentence of imprisonment must not be imposed unless the court decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires imprisonment.[32]

   [32] Sentencing Act 1995 (WA) s 6(4).

8. The relevant principles with respect to the imposition of a suspended term of imprisonment are uncontroversial.[33] Pursuant to s 76(2) of the Sentencing Act, a suspended term of imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances. Given that s 76(1) of the Sentencing Act permits suspension where a court sentences an offender to a term, or aggregate terms, of imprisonment of up to 5 years, suspension may be ordered in cases involving serious offending.

   [33] Cartwright v The State of Western Australia [2010] WASCA 4 [8].

9. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term.[34]  That is, all of the circumstances must be revisited.  The magistrate must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately.  By ground 2 Mr Golding contends that the magistrate could not have been positively satisfied that it is not appropriate to suspend or conditionally suspend the term.

The learned magistrate's reasoning

[34] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 329, 330, 348.

1. The appellant's written submissions addressing ground 2 make contentions that are not within the terms of the ground pleaded.  It is contended that the learned magistrate 'failed to give proper consideration to lesser sentencing options, namely a suspended term of imprisonment' and that the learned magistrate 'did not adequately consider afresh the appellant's mitigating factors as they were relevant to imposing a suspended sentence.'[35]

   [35] Appellant's Outline of Submissions filed 13 August 2020 [76], [80].

2. It is not necessary for a sentencing magistrate to make express reference to each of the sentencing options in s 39 of the Sentencing Act. Her Honour delivered carefully constructed sentencing remarks that addressed each relevant sentencing factor and expressly considered whether the sentencing factors supported a suspended term of imprisonment. The learned magistrate observed that Mr Golding pleaded guilty and was therefore afforded a discount under s 9AA of the Sentencing Act.  Her Honour outlined the maximum penalties without error, considered the personal circumstances of Mr Golding identifying, without error, the factors in mitigation arising including the references that referred to his positive impact on individuals.  Her Honour referred to the objective seriousness of the offending.

3. The learned magistrate made the following finding:[36]

   An immediate term of imprisonment is a sentence of last resort.  I accept that you've made positive contributions to the lives of individuals and that you've made gains into your own treatment needs.  However, none of your personal circumstances override the requirement that the seriousness of your offending and the need for general and specific, but particularly general, deterrence warrants that a term of immediate imprisonment is appropriate.

   [36] ts 6 (21/02/2020).

4. Mr Golding's contentions are without merit.  On a fair reading of the learned magistrate's sentencing remarks her Honour did give proper consideration to the sentencing option of a suspended term of imprisonment and determined not to impose that type of sentence after expressly taking into account for a second time the objective seriousness of the offences and the personal circumstances of Mr Golding. 

Consideration of relevant sentencing factors

1. I now turn to consider the factors relevant in determining whether the imposition of an immediate term of imprisonment was manifestly excessive, that is, whether the sentence imposed breached the totality principle.

Maximum penalty

1. The sentencing magistrate must have regard to the statutory maximum of the offences and not merely the jurisdictional limit in assessing the seriousness of the offence.[37]

   [37] Wiltshire v Mafi [2010] WASCA 111 [24] ‑ [33].

2. The statutory maximum penalty for the offence of offering to sell or supply cannabis contrary to s 6(1)(c) of the Misuse of Drugs Act is 10 years' imprisonment or a $20,000 fine, or both,[38] and 4 years' imprisonment or a $5,000 fine, or both, when the offender is dealt with summarily.[39]

   [38] Misuse of Drugs Act 1981 (WA) s 34(2)(a).

   [39] Misuse of Drugs Act 1981 (WA) s 34(2)(b).

3. The statutory maximum penalty for the offence of offering to sell or supply methylamphetamine contrary to s 6(1)(c) of the Misuse of Drugs Act is 25 years' imprisonment or a $100,000 fine, or both.[40] The jurisdictional maximum penalty when the offence is dealt with summarily is a $5,000 fine or 4 years' imprisonment, or both.[41]

   [40] Misuse of Drugs Act1981 (WA) s 34(1)(aa).

   [41] Misuse of Drugs Act 1981 (WA) s 34(2)(b).

4. The maximum penalty for the offence of failing to obey a data access order contrary to s 61(2) of the Criminal Investigation Act is 5 years' imprisonment, and 2 years' imprisonment and a $24,000 fine when the offence is dealt with summarily.[42]

   [42] Criminal Investigations Act 2006 (WA) s 61(2).

5. The maximum penalty for the offence of possession of a prohibited drug contrary to s 6(2) of the Misuse of Drugs Act is 2 years' imprisonment or a $2,000 fine, or both.[43]

   [43] Misuse of Drugs Act 1981 (WA) s 34(1)(e).

6. The maximum penalty for the offence of possessing drug paraphernalia contrary to s 7B(6) of the Misuse of Drugs Act is 3 years' imprisonment or a fine of $36,000, or both.[44]

   [44] Misuse of Drugs Act 1981 (WA) s 7B(6).

7. The penalty for the offence of driving with a prohibited drug in oral fluid contrary to s 64AC(1) of the Road Traffic Act, for a second or subsequent offence, is a fine between $500 and $1,000 and disqualification from holding or obtaining a driver's licence for a minimum of 6 months.[45]

Circumstances of the offences

[45] Road Traffic Act 1974 (WA) s 64AC(2)(b).

1. Turning to the circumstances of the offending, Mr Golding committed multiple drug offences over a nine week period.  Mr Golding, on five separate occasions offered to supply methylamphetamine, and on seven separate occasions offered to supply cannabis.  The offending was not a single aberrant act of an offer to supply but a course of conduct.[46]  The learned magistrate properly characterised the offers to supply prohibited drugs to the community as reprehensible.[47]

   [46] ts 3 (21/02/2020).

   [47] ts 4 (21/02/2020).

2. The learned magistrate accepted that the offer to supply offences involved 'low level dealing' and that no commerciality or profit was involved.[48]  That finding was consistent with the prosecutor's submissions at the sentencing hearing.  Whilst Mr Golding was a low level drug user he was involved in offering to supply prohibited drugs persistently over an extended period.  Such offending is pivotal in the distribution of prohibited drugs throughout the community.

   [48] ts 4 (21/02/2020).

3. Mr Golding's offending involved the use of electronic devices requiring the police to use a telephone intercept warrant.  Mr Golding refused the lawful request of the police to access the data on his mobile phone.  The offence involved a deliberate breach of the lawful request and thereby Mr Golding impeded the police investigation. 

Personal circumstances

1. Turning first to Mr Golding's personal circumstances.  Mr Golding was sentenced as a 41‑year‑old and therefore does not have the benefit of youth.

2. Mr Golding has used methylamphetamine for approximately 15 years.[49]  Mr Golding has a lengthy criminal record with convictions predominately relating to possession of drugs and therefore was not sentenced as a person of good character.[50]  His criminal record comprises a significant number of convictions for possession of prohibited drugs.  In addition, Mr Golding has been convicted of offences including breach of bail, stealing a motor vehicle, possession of stolen property, possession of a controlled weapon, pursuing another to intimidate, forgery, and breach of violence restraining orders.  The learned magistrate observed that the criminal record was consistent with someone who has had a long-term drug addiction.[51]

   [49] ts 10 (13/02/2020).

   [50] ts 3 (21/02/2020).

   [51] ts 3 (21/02/2020).

3. For the 18 months prior to being charged with the offences Mr Golding was employed as a qualified drug rehabilitation counsellor at a drug rehabilitation service in Albany.[52]  Before being employed at the drug rehabilitation service, he had volunteered at the service for two years.[53]  Her Honour received references from members of the community and accepted that Mr Golding had played a significant positive role with respect to members of the community.[54] 

   [52] ts 10 (13/02/2020).

   [53] ts 10 (13/02/2020).

   [54] ts 3 (21/02/2020).

4. The learned magistrate made the finding that Mr Golding had not offered to supply drugs to any person attending the drug rehabilitation service.  However, her Honour did observe that Mr Golding must have known from his 'firsthand experience' of his addiction and 'from counselling others' the 'devastation that the use of illicit drugs particularly methylamphetamine can have on individuals.'[55]

   [55] ts 4 (21/02/2020).

5. Mr Golding acts as his father's carer having moved back into his parent's residence after his arrest.  Mr Golding continues to support his father.[56] 

   [56] ts 12 (13/02/2020).

6. The learned magistrate accepted that Mr Golding had made efforts towards his rehabilitation.[57]  Further, the learned magistrate observed that the letter Mr Golding forwarded to the court was detailed and outlined the difficulties experienced by Mr Golding in remaining drug free. 

Early pleas of guilty

[57] ts 4 (21/02/2020).

1. The learned magistrate afforded Mr Golding a 25% discount pursuant to s 9AA of the Sentencing Act in respect of the offer to supply cannabis charges given that the plea was entered at the first reasonable opportunity and a 20% discount in respect of the offer to supply methylamphetamine charges given  that the pleas were entered at an early stage.[58]

Comparable cases

[58] ts 3 (21/02/2020).

1. Whilst decisions provide guidance to courts who must seek to achieve broad consistency in sentencing, this type of offence may be committed in a wide variety of circumstances and with much disparity in the particular offender's antecedents.  In short, previous decisions provide guidance as to what may constitute a sound exercise of discretion in a particular case, but they do not determine what the appropriate sentence should be.[59]

   [59] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [53] ‑ [54].

2. Mr Golding referred to Crichton v The State of Western Australia [No 2],[60] Dahl v Arnold,[61] Fenton v The State of Western Australia,[62] Hayter v Thomson,[63] Samuel v The State of Western Australia,[64] and The State of Western Australia v Thompson.[65] The respondent referred to Apkarian v The State of Western Australia,[66] Donaldson v The State of Western Australia,[67] Goodwin v The State of Western Australia,[68] Italiano v The State of Western Australia,[69] Lovell v The State of Western Australia,[70] and Ness v The State of Western Australia [No 2].[71]  I have considered those decisions.  The decisions do not support a finding that the total effective sentence was unreasonable or plainly unjust.

Determination of grounds 2 and 3

[60] Crichton v The State of Western Australia [No 2] [2014] WASCA 37.

[61] Dahl v Arnold [2020] WASC 224.

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

[63] Hayter v Thomson [2020] WASC 194.

[64] Samuel v The State of Western Australia [2004] WASCA 154.

[65] The State of Western Australia v Thompson [2014] WASCA 108.

[66] Apkarian v The State of Western Australia [2015] WASCA 67.

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

[68] Goodwin v The State of Western Australia [2017] WASCA 184.

[69] Italiano v The State of Western Australia [2020] WASCA 115.

[70] Lovell v The State of Western Australia [2019] WASCA 169.

[71] Ness v The State of Western Australia [No 2] [2013] WASCA 56.

1. After carefully considering the relevant sentencing factors I am of the view that the imposition of the immediate terms of imprisonment were within the proper exercise of the learned magistrate's discretion.  The sentence imposed was not manifestly excessive and did not breach the first limb of the totality principle.  The total effective sentence is not unreasonable or plainly unjust.  It was reasonably open to the learned magistrate to be positively satisfied that the term of imprisonment could not be suspended.  Mr Golding was convicted of 12 offences of offering to supply prohibited drugs namely cannabis and methylamphetamine.  The offending was persistent over an extended period.  The role of Mr Golding in offering to supply the prohibited drugs as a low level dealer is a pivotal role in the distribution of prohibited drugs in the community.  The learned magistrate correctly observed that the distribution of prohibited drugs and in particular, methylamphetamine, causes devastation and misery in the community.[72] 

   [72] ts 4 (21/02/2020).

2. Accordingly, leave is not granted on grounds 2 and 3.

Conclusion

1. Given that leave is not granted on grounds 1, 2 and 3 the appeal is thereby taken as dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

GP
Research Orderly to the Honourable Justice McGrath

8 OCTOBER 2020