Goodchild v Director of Public Prosecutions for Western Australia

[2023] WASC 60

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   GOODCHILD -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 60

CORAM:   DERRICK J

HEARD:   21 FEBRUARY 2023

DELIVERED          :   3 MARCH 2023

FILE NO/S:   SJA 1078 of 2022

BETWEEN:   CLINTON ROBERT GOODCHILD

Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE J ANDRETICH

File Number            :   BU 2963/2021 - BU 2967/2021

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted of drug offences - Appellant sentenced to immediate imprisonment - Whether magistrate erred by not taking guilty pleas into account - Whether magistrate erred by not taking mitigating factors into account - Whether magistrate erred by failing to properly consider suspending the term of imprisonment imposed - Whether sentence of immediate imprisonment imposed manifestly excessive - Resentencing of appellant

Legislation:

Criminal Appeals Act 2004 (WA)
Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA)

Result:

Appeal allowed
Appellant resentenced

Category:    B

Representation:

Counsel:

Appellant	:	E R Zillessen
Respondent	:	R G Wilson

Solicitors:

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

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

Bradbury v The State of Western Australia [2020] WASCA 214

Bykerk v Director of Public Prosecutions (WA) [2022] WASC 451

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

Crocker v Vinicombe [2019] WASC 416

Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 549

Dias v The State of Western Australia [2017] WASCA 49

Dillon v The State of Western Australia [2020] WASCA 24

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

DKN v The State of Western Australia [2018] WASCA 87

Eldridge v The State of Western Australia [2020] WASCA 66

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

Gobetti v The State of Western Australia [2017] WASCA 130

Greenfield v The State of Western Australia [2019] WASCA 29

H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151

Harding v The State of Western Australia [2015] WASCA 27

Harper v Page [2004] WASCA 267

Hiemstra v The State of Western Australia [2021] WASCA 96

Hobby v The State of Western Australia [2009] WASCA 108

Houghton v The State of Western Australia [No 2] [2022] WASCA 7

Inglis v Pinch [2016] WASC 30; (2016) 256 A Crim R 502

Johnson v Vander Sanden [2021] WASCA 27

Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1

Kelly v The State of Western Australia [2020] WASCA 29

Le v The State of Western Australia [2014] WASCA 120

Lester v The State of Western Australia [2011] WASCA 128

LTT v The State of Western Australia [2022] WASCA 31

Mason v The State of Western Australia [2018] WASCA 43

Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324

Mitchell v Purvis [2016] WASC 351

Neach v Hobbs [2021] WASC 135

Nguyen v The State of Western Australia [2019] WASCA 56

NI v The State of Western Australia [2020] WASCA 78

Nickson v The State of Western Australia [2021] WASCA 40

Nolan v The State of Western Australia [2013] WASCA 235

NTH v The State of Western Australia [2020] WASCA 22

Page v The State of Western Australia [2018] WASCA 76

Panomarenko v The State of Western Australia [2022] WASCA 71

Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32

Rodi v The State of Western Australia [No 2] [2014] WASCA 233

Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319

Salkilld v The State of Western Australia [2017] WASCA 168

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

Sandwell v The State of Western Australia [2012] WASCA 15

Schulz v Coyne [2019] WASC 329

Shi v The State of Western Australia [2020] WASCA 197

Skipworth v The State of Western Australia [2008] WASCA 64

Stack v Joye [2021] WASC 322

Stanley v The State of Western Australia [2018] WASCA 229

The State of Western Australia v Atherton [2009] WASCA 148

The State of Western Australia v Jacoby [2020] WASCA 150

The State of Western Australia v Johnson [2009] WASCA 224; (2009) 213 A Crim R 1

The State of Western Australia v Nillson [2017] WASCA 68

The State of Western Australia v Saleh [2020] WASCA 205

Waldron v The State of Western Australia [2010] WASCA 63

Whitby v The State of Western Australia [2019] WASCA 11

Willenberg v Downey [2015] WASC 282

Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326

Winmar v Clark [2015] WASC 314

Winmar v The State of Western Australia [2018] WASCA 155

WRT v The State of Western Australia [2020] WASCA 68

DERRICK J:

Introduction

1. On 6 October 2022 the appellant was sentenced by Magistrate Andretich to a total sentence of 10 months immediate imprisonment for one offence of cultivating cannabis contrary to s 7(2) of the Misuse of Drugs Act 1981 (WA) (MDA) (BU 2963/2021) and one offence of possessing cannabis with intent to sell it to another contrary to s 6(1)(a) of the MDA (BU 2967/2021). Her Honour ordered that the appellant is eligible for release on parole.

2. The appellant applies for leave to appeal against the sentence of immediate imprisonment imposed for the two offences on four grounds the precise terms of which are referred to further below.[1]  In essence the appellant contends that the magistrate erred by failing to take account of the appellant's pleas of guilty (ground 1), by failing to take account of mitigating factors (ground 2), by failing to properly consider whether to impose a suspended term of imprisonment (ground 4) and by imposing sentences that were manifestly excessive (ground 5).[2]

   [1] The application is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) CAA.

   [2] The Appeal Notice that was filed on 27 October 2022 contains five grounds of appeal.  However, at the appeal hearing the appellant abandoned ground 3.

3. On 5 December 2022 a registrar of this court made an order that the appellant's application for leave to appeal be heard together with the appeal.

4. On 21 February 2023 I heard the appellant's application for leave to appeal and appeal.

5. For the reasons that follow in my opinion the appeal should be allowed.

Leave to appeal

1. The court must not give leave to appeal on a ground of appeal unless the ground has a reasonable prospect of success.[3]  A ground of appeal will not have a reasonable prospect of success if it does not have a rational and logical prospect of succeeding.[4]  If leave to appeal is refused on each ground of appeal the appeal is taken to be dismissed.

   [3] CAA, s 9(3).

   [4] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

Factual background to the grounds of appeal

1. Before turning to deal with the individual grounds of appeal it is necessary to set out the factual background to the grounds.

The charging of the appellant

1. On 3 May 2021 the appellant was charged with the offences of cultivating cannabis and possessing cannabis with intent to sell or supply that are the subject of the appeal. On the same day the appellant was also charged with one offence of being in possession of a controlled weapon without lawful excuse contrary to s 7(1) of the Weapons Act 1999 (WA) (BU 2960/2021), two offences of possessing drug paraphernalia in which there was a prohibited drug contrary to s 7B(6) of the MDA (BU 2961/2021 - 2962/2021), three offences of possessing a prohibited drug contrary to s 6(2) of the MDA (BU 2964/2021 - 2966/2021) and one offence of possessing cash that was reasonably suspected to be stolen or otherwise unlawfully obtained contrary to s 417(1) of the Criminal Code (WA) (Code) (BU 2968/2021).

2. On 26 August 2021, which was the appellant's second appearance, in relation to the charged offences, the appellant pleaded guilty to, and was convicted of, all the charged offences save for the charge of possessing cash reasonably suspected to be stolen or unlawfully obtained.

The first sentencing

1. On 7 April 2022 the appellant appeared before Magistrate Tyers to be sentenced for the eight offences to which he had pleaded guilty.  He was represented by duty counsel. 

2. The magistrate had before him a report dealing with the appellant's engagement in a drug rehabilitation and diversion programme (drug rehabilitation programme).[5]

   [5] ts 5 and 7, 7 April 2022.

3. At the commencement of the hearing the magistrate heard the facts of the offences.  The facts as stated by the prosecutor to his Honour were relevantly as follows.[6]

   [6] ts 3 - 5, 7 April 2022.

4. At about 6:30 pm on 8 April 2021 the appellant was stopped by police while driving his vehicle.  The police searched the appellant's vehicle.  They found a torch baton that did not contain batteries (BU 2960/2021).

5. Later on 8 April 2021 the police searched the appellant's residence in South Bunbury. 

6. During the search of the appellant's residence the police found in the kitchen a glass smoking implement that contained traces of methylamphetamine (BU 2961/2021).  The appellant was questioned and admitted that he owned the smoking implement and that he used the implement to smoke methylamphetamine.

7. In the appellant's bathroom and bedroom the police located smoking implements that contained cannabis residue (BU 2962/2021).  The appellant was questioned and admitted using the implements to smoke cannabis.

8. In the rear yard of the residence the police found two cannabis plants.  The stems of the plants were still green which indicated that they had recently been stripped (BU 2963/2021).

9. In the rear bedroom of the residence the police located a 'dry room'.  In the dry room were stems of cannabis hanging from a rack and buds of cannabis on the ground in a tray (BU 2963/2021).  The total weight of the cannabis found in the dry room was in excess of 100 gm.

10. The accused was questioned about the plants.  He stated that the stems hanging from the rack were from one of the plants found in the rear yard.  He denied that the stems were from the other plant.  He stated that the other plant had been a failure and that he had not harvested any cannabis from it.

11. On a mobile telephone seized from the appellant the police found photographs of the accused sitting in front of the two cannabis plants both of which were full of cannabis buds.  The photographs were date stamped February 2021.

12. In the appellant's bedroom the police found a clip seal bag containing 17 cannabis seeds (BU 2964/2021).  On being questioned about the seeds the appellant admitted that he intended to use the seeds to cultivate cannabis.

13. The police found a small clip seal bag containing 0.1 gm of methylamphetamine crystals (BU 2965/2021).  The appellant was questioned and told the police that the bag containing the methylamphetamine was a 'wash bag' and that there would be a lot of them in the house.

14. The police found cannabis in a plastic container in the kitchen and in a grinder that was in a bedside cupboard.  The total weight of the cannabis found in these two locations was 17 gm (BU 2966/2021).

15. Finally, during the search the appellant showed the police a safe that was in his bedroom.  On the top of the safe the police found a box of clip seal bags.  In the safe the police located $850 in cash and a set of electronic scales.  Further, in the wardrobe next to the safe the police found two metal cylinders both of which contained cannabis.  The total weight of the cannabis in the two containers was 36 gm (BU 2967/2021). 

16. After hearing the facts of the offence the magistrate heard the appellant's counsel's plea in mitigation.  During his plea in mitigation counsel informed his Honour of the following matters:[7]

    1.The appellant's only prior conviction was for an offence of possessing cannabis that he committed in 2017;[8]

    2.Up until October 2020 the appellant had been a long term employee of a meatworks business.  He had worked for the business for nine years;

    3.In October 2020 the appellant's partner ended her relationship with him and terminated a pregnancy.  The ending of the relationship and the termination of the pregnancy caused the appellant distress.  The appellant's previous recreational use of methylamphetamine spiralled into a very serious methylamphetamine habit.  The appellant 'spiralled out of control';

    4.The appellant took long service leave from his employment.  His long service leave payouts and tax return payments allowed him to use significant amounts of methylamphetamine and cannabis;  

    5.The appellant's selling and supplying of cannabis had been limited to 'a small circle of friends';

    6.The appellant had spent quite a long time on remand bail as part of having engaged in the drug rehabilitation programme.  The report before the court dealing with his participation in the drug rehabilitation programme was a positive one.  The appellant had successfully complied with the drug rehabilitation programme and was abstaining from drug use;

    7.The appellant had recently been employed as a fruit picker and had 'a job lined up' with another meatworks business; and

    8.The appellant had pleaded guilty to the offences.

    [7] ts 5 - 6, 7 April 2022.

    [8] The transcript records the appellant's counsel as saying '2017'.  If this is what counsel said he made an error.  As the magistrate stated in his sentencing remarks (ts 8, 7 April 2022) and as I refer to later in these reasons, the appellant's only prior convictions for possession of drug offences were recorded against him in 2007.

17. The appellant's counsel submitted that the appropriate sentence for the offences was a community based order.[9]

    [9] ts 6 - 7, 7 April 2022.

18. Having heard the appellant's counsel's plea in mitigation, and without inviting the prosecutor to make any submissions as to sentence, the magistrate proceeded to sentence the appellant.[10]  For the offences the subject of charges BU 2963/2021 - BU 2967/2021 his Honour sentenced the appellant to a 12-month intensive supervision order with a programme requirement (ISO).  For the offences the subject of charges BU 2960/2021 - BU 2962/2021 his Honour imposed fines.

    [10] ts 7 - 9, 7 April 2022.

19. In deciding to sentence the appellant to the ISO the magistrate took into account the appellant's early pleas of guilty, the appellant's cooperation with the police, the appellant's 'quite dated' criminal record,[11] that the offences were committed against a backdrop of 'personal trauma' and that the appellant had complied with the drug rehabilitation programme for a significant amount of time.[12]  His Honour expressly found that given the seriousness of the appellant's offences it would not be appropriate to sentence the appellant to a community based order.

The sentencing for the unlawful possession offence

[11] His Honour stated that there was nothing on the record that was before him since 2007 (ts 8, 7 April 2022).

[12] ts 8, 7 April 2022.

1. On 7 September 2022 the appellant pleaded guilty to, and was convicted of, the charge of possessing cash reasonably suspected of having been stolen or unlawfully obtained to which he had previously pleaded not guilty (BU 2968/2021).  The offence related to the $850 that was found in the safe in the bedroom of the appellant's residence on 8 April 2021 and to $3400 cash that was found in the appellant's wallet at the time that he was first stopped in his vehicle on that date.  He was fined $1500 for the offence.[13]

The sentencing the subject of the appeal

[13] ts 8, 7 April 2022.

1. On 13 July 2022 the appellant was charged with one offence of possessing cannabis (BU 2745/2022) and one offence of possessing drug paraphernalia which contained a prohibited drug (BU 2746/2022).  The appellant was alleged to have committed the two offences on 7 July 2022, that is, during the term of the ISO.

2. On 6 October 2022 the appellant appeared before Magistrate Andretich in relation to the two offences with which he had been charged on 13 July 2022.  The appellant was represented by duty counsel.  The appellant pleaded guilty to, and was convicted of, the two offences.[14]

   [14] ts 2, 6 October 2022.

3. After the appellant had pleaded guilty to the charges the magistrate heard the facts of the offences.  The facts as stated to her Honour by the prosecutor were, in essence, as follows.[15]

   [15] ts 3, 6 October 2022.

4. At about 10:30 pm on 7 July 2022 the appellant was seen by the police in his car in Australind.  The police spoke to the appellant and looked in his vehicle.  While looking in the appellant's vehicle the police found a small gold metal pipe and a small metal tin containing 7 gm of cannabis.

5. After hearing the facts of the appellant's two most recent offences the magistrate heard the facts of the offences for which the appellant had been placed on the ISO.  Her Honour heard the facts of these offences because the appellant had committed his two most recent offences during the term of the ISO and had therefore, on his conviction for these offences, rendered himself liable to be resentenced for the offences for which he had been placed on the ISO.[16]

   [16] Sentencing Act 1995, s 128(1)(b) and s 130(1)(a).

6. After hearing the facts of the offences for which the appellant had been placed on the ISO the magistrate requested a Community Corrections Officer (CCO) who was present in court to inform her of how the appellant had performed on the ISO.  The CCO told her Honour that the appellant had complied with directions and had engaged with South West Drug and Alcohol Service.[17]  The CCO stated that there were, however, concerns about the appellant's level of engagement with the ISO and the drug and alcohol service given that despite his attendance at the service he was still reporting that he was using methylamphetamine on a daily basis.[18]  The CCO stated that for all intents and purposes the appellant was complying with the ISO but that it was 'somewhat questionable' as to whether he was benefiting from the order.[19]

   [17] ts 5, 6 October 2022.

   [18] ts 5, 6 October 2022.

   [19] ts 5, 6 October 2022.

7. Having heard from the CCO the magistrate heard the appellant's counsel's plea in mitigation.  Counsel informed the magistrate of the following matters:[20]

   1.At the time of committing his most recent offences the appellant had been forced to leave his accommodation and was homeless;

   2.The appellant had a history of long term stable employment which had come to an end in 2020 after he had decided to take leave following the breakdown of his relationship;

   3.The appellant, while taking leave, was living off tax return savings which escalated his use of methylamphetamine;

   4.Without stable accommodation the appellant had been unable to obtain stable employment;

   5.The appellant did not want to return to working in the meat works industry because such work was physically stressful and mentally distressing.  He was seeking employment with someone working in the tiling industry;

   6.The appellant had completed the drug rehabilitation programme in the lead up to his sentencing for the offences for which he had been placed on the ISO;

   7.The appellant was still using methylamphetamine although not every day; and

   8.The appellant wanted to cease his methylamphetamine use and his intention was to continue to comply with the ISO.

   [20] ts 5 - 7, 6 October 2022.

8. The appellant's counsel submitted that the appellant's most recent offences constituted a 'de-escalation' of his offending.[21]  Counsel submitted that the appellant was no longer supplying cannabis and this conduct was 'far out of the picture'.[22]  Counsel submitted the appellant had found himself in an extremely unstable situation, had good intentions and was not superficially engaging in the ISO.[23]  Counsel submitted, in essence, that the appellant should be fined and allowed to get on with his life and to deal with his long term drug addiction.[24]

   [21] ts 7, 6 October 2022.

   [22] ts, 7, 6 October 2022.

   [23] ts, 7, 6 October 2022.

   [24] ts, 7, 6 October 2022.

1. After hearing the appellant's counsel's plea in mitigation the magistrate reverted to the CCO.  Her Honour asked the CCO if she was saying that Adult Community Corrections (ACC) would not support the appellant remaining on the ISO.[25]  In response to her Honour's question the CCO, stated that she would find it difficult to say in relation to any person that ACC would not support them remaining on an order because 'anyone is willing to change [and] has the ability to engage with us'.[26]  However, the CCO also stated that although she understood that it was not easy for the appellant to give up his drug use, at this point she was 'not sure what else we could implement that's going to make things any different'.[27]

   [25] ts 7, 6 October 2022.

   [26] ts 8, 6 October 2022.

   [27] ts 8, 6 October 2022.

2. The magistrate at this point asked the prosecutor if she wanted to make any submissions.[28]  The prosecutor, after some very brief statements to the effect that the appellant had not taken advantage of the courses that had been provided to him, stated that she would 'leave that in her Honour's hands'.[29]

   [28] ts 8, 6 October 2022.

   [29] ts 8, 6 October 2022.

3. The magistrate then proceeded to sentence the appellant for his two most recent offences and the offences for which he had been placed on the ISO. Thus it is clear that her Honour, having convicted the appellant of his two most recent offences and being satisfied that the offences, each of which carried as a maximum penalty a term of imprisonment, had been committed during the term of the ISO, decided, pursuant to s 128(1)(b) of the Sentencing Act 1995 (WA), to deal with the appellant under s 130(1)(a) of that Act. In sentencing the appellant the magistrate said the following:[30]

   … I need to impose a sentence that's [commensurate] with the seriousness of the offence.  Now, I accept what your counsel has said, that the offences for which you've been charged recently and pleaded guilty to are not of a serious nature.  And that would suggest that your behaviour is deescalating, but the offences for which you were placed on that order were serious offences.  Extremely serious offences in my view.  You've been given an opportunity on that order to do something about - I understand you've got a drug addiction, but you've been given an opportunity and you haven't engaged in that order, even when you were given the opportunity by me to re-engage in relation to that order.  And you haven't - you have, but you really haven't taken on board what's been offered holistically, if I can perhaps put it that way.  Community Corrections are in a position that there's nothing they can really do to assist you from what I'm told, in moving forward.

   I need to take into account the maximum penalty for the offences, the vulnerability of any victim.  And this goes to the intensive supervision order, the charge for which you were selling and supplying drugs, cannabis.  There needs to be a sentence that acts as a general deterrence [sic] to others in the community not to engage in this behaviour.  Also a specific deterrence [sic] to you, because you have got prior convictions for possession of---sorry cultivation of cannabis, possession of a prohibited drug.  These are in April 2022.  These are the ones you were placed on the order for.  And you also have other offences on that date for which you were fined.  That was offences of a minor nature.

   It seems to me that the sentence that was imposed hasn't acted as a salutary lesson in moving forward.  So - and given I'm told that there's nothing that can be offered to you, I need to impose a sentence that does act as a general deterrence [sic].  I am going to cancel the order, and I'm going to resentence you in respect of the charges 2745, 2746, which are the two current offences, and 2964, 2965 and 2966 which were the more minor offences for which you were placed on that intensive supervision order.

   I'm going to impose a global fine of $1200.  As for the other offences, in the circumstances I have, I'm going to impose a term of imprisonment.  I'm imposing a term of 4 months on the cultivate and 6 months on the possession of cannabis with intent to sell or supply. 

   That is the head sentence so it will be a sentence of 10 months.  I've made you eligible for parole, and the sentence date starts today. …

   … Just for the completeness, I don't propose to suspend that term of imprisonment for the reasons I've spoken about in sentencing you …[31]

   [30] ts 8 - 9, 6 October 2022.

   [31] The transcript records the global fine imposed by her Honour to be '$12,000' but it is apparent from the prosecution notices, and is agreed by the parties, that the fine imposed by her Honour was $1200. In cancelling the ISO and resentencing the appellant for the offences for which he had been placed on the order, the magistrate exercised the power given to her by s 130(1)(a)(iii) of the Sentencing Act.

4. The magistrate's reference in her sentencing remarks to the opportunity that her Honour gave to the appellant to re-engage with the ISO was apparently a reference by her Honour to having previously and recently dealt with the appellant for an offence of driving with a prescribed drug in his system.[32]  This offence did not constitute a contravention of the ISO that rendered the appellant liable to be resentenced for the offences for which he had been placed on the ISO because the maximum penalty for the offence did not include imprisonment.[33]

   [32] ts 5, 6 October 2022.

   [33] Sentencing Act, s 128(1).

5. It is worth noting that if the magistrate had not decided that a term of immediate imprisonment to be served cumulatively was the only appropriate sentence for the appellant's cultivation offence, her Honour could not have concluded that the only appropriate sentence for the appellant's possession of cannabis with intent offence was 6 months immediate imprisonment. This is because by reason of s 86 of the Sentencing Act a court is, subject to certain exceptions none of which would have applied if the magistrate had not decided that a term of immediate imprisonment to be served cumulatively was the only appropriate sentence for the cultivation offence, prohibited from sentencing an offender to a term of 6 months imprisonment or less.

The approach to the determination to the appeal

1. By three of the grounds of appeal the appellant contends that the magistrate made errors of law.

2. Different views have been expressed by judges of this court in relation to whether the court's jurisdiction to allow an appeal against sentence under s 14(1)(b) of the CAA is enlivened once any error of law is established, or whether the error must be material to the exercise of the sentencing discretion.[34]  An error of law will not be material to the exercise of the sentencing discretion if it did not affect, or was incapable of affecting, the sentence imposed.[35]

   [34] There is a useful discussion of the different views in Crocker v Vinicombe [2019] WASC 416 [42] - [60] (Fiannaca J). See also Stack v Joye [2021] WASC 322 [27] - [32] (Archer J) and Neach v Hobbs [2021] WASC 135 [17] - [22] (Archer J).

   [35] Harding v The State of Western Australia [2015] WASCA 27 [73] - [75]. See also Milenkovski v The State of Western Australia [2014] WASCA 48; (2014) 46 WAR 324 [14] and Hiemstra v The State of Western Australia [2021] WASCA 96 [120].

3. The question whether the error of law must be material to enliven the court's jurisdiction to allow an appeal is not one that I need to express a concluded view on in order to deal with this appeal.  I say this because if the appellant establishes that the magistrate made the alleged errors of law it will necessarily follow that her Honour made material errors of law (that is, made errors that affected the individual sentences and total sentence imposed or were at least capable of affecting the individual sentences and total sentence imposed).

Ground 1

1. By ground 1 of his appeal the appellant asserts that in sentencing the appellant for the cultivate cannabis offence and the possess cannabis with intent offence (hereafter referred to as 'the offences') the magistrate 'erred in law by not taking into consideration the appellant's early plea[s] of guilty'.[36]

Relevant statutory provisions and applicable legal principles

[36] An appeal against sentence may be made on a ground that a sentencing judicial officer made an error of law pursuant to s 8(1)(a)(i) of the CAA. All further references to 'the magistrate' should be taken as references to Magistrate Andretich.

1. Section 8(4) of the Sentencing Act 1995 (WA) provides that if a court reduces the sentence it would otherwise have imposed because of a mitigating factor, the court must state this fact in open court. A guilty plea is a mitigating factor.[37] However, a failure to comply with s 8(4) is not necessarily an appealable error. Non-compliance with s 8(4) does not of itself invalidate the sentence imposed.[38]

   [37] Sentencing Act, s 8(1).

   [38] Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [59]; Nolan v The State of Western Australia [2013] WASCA 235 [44]; Bradbury v The State of Western Australia [2020] WASCA 214 [76].

2. If a person pleads guilty to an offence, s 9AA(2) of the Sentencing Act permits the sentencing judicial officer to reduce the 'head sentence' (as defined in s 9AA(1)) imposed for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.

3. Section 9AA(3) of the Sentencing Act provides that the earlier in the proceedings that the plea is made, the greater the reduction in the sentence may be. 

4. Section 9AA(4) of the Sentencing Act deals with the extent of the reduction that can be given pursuant to s 9AA(2). In essence, s 9AA(4) provides that if the offender pleads guilty, or indicates that they will be pleading guilty, at the first reasonable opportunity the sentencing judicial officer is permitted to reduce the head sentence for an offence that includes a 'fixed term' (as defined in s 9AA(1)) by a maximum of 25%, and that if the offender does not plead guilty, or indicate that they will be pleading guilty, at the first reasonable opportunity, the sentencing judicial officer is permitted to reduce the head sentence for an offence that includes a fixed term by something less than 25%.

5. A sentencing judicial officer is not bound to allow a discount of 25% whenever an offender pleads guilty at the first reasonable opportunity. Rather, a sentencing judicial officer has a discretion in deciding upon the discount to be given in each case. The existence of the discretion recognises that the nature, character and extent of the benefits referred to in s 9AA(2) may vary in different cases where the offender has pleaded guilty at the first reasonable opportunity.[39]

   [39] NI v The State of Western Australia [2020] WASCA 78 [65].

6. The strength of the prosecution case can be taken into account in assessing the extent of the discount to be given under s 9AA(2). This is because the strength of the prosecution case is directly relevant to the prospects of securing a conviction and therefore the value of the benefit to the State of the guilty plea.[40] However, in evaluating the appropriate discount to be given under s 9AA(2) it is important to bear in mind the underlying purpose of the provision.[41]  Thus as was stated by Mazza JA and Hall J in Gobetti v The State of Western Australia:[42]

   It is important to always bear in mind the underlying purpose of allowing and quantifying a discount for a plea of guilty.  The purpose is to encourage those who are guilty to enter their pleas at the earliest possible stage, and thereby maximise the benefits of those pleas to the State and any victims or witnesses.  Discounts act not merely as a reward to the individual, but as an encouragement to others.  Too parsimonious an approach to the awarding of a discount may discourage others from entering a plea of guilty.  Even when the prosecution case is overwhelming a discount should be given to ensure that accused persons do not view the entering of a plea of guilty as being pointless.

   [40] NI v The State of Western Australia [66].

   [41] Winmar v The State of Western Australia [2018] WASCA 155 [31]; NI v The State of Western Australia [66].

   [42] Gobetti v The State of Western Australia [2017] WASCA 130 [79] cited with approval in NI v The State of Western Australia [67].

7. Section 9AA(5) of the Sentencing Act provides that if the sentencing judicial officer reduces the head sentence for an offence under s 9AA(2), they are required to state in open court both that the sentence has been reduced under s 9AA(2) and the extent of the reduction. The failure to state the extent of the reduction as required by s 9AA(5) will constitute an error of law, albeit not necessarily a material error resulting in a substantial miscarriage of justice and the appeal against the sentence imposed being allowed.[43] 

   [43] CAA, s 14(2); Inglis v Pinch [2016] WASC 30; (2016) 256 A Crim R 502 [57] - [59]; Schulz v Coyne [2019] WASC 329 [30].

8. Ordinarily the failure by a sentencing judicial officer to refer to the effect of a plea of guilty is an indication that the sentencing judicial officer has overlooked the plea of guilty and has failed to take the plea of guilty into account in determining the sentence to be imposed on the offender.[44]  Thus, in Roberts v The State of Western Australia[45] the Court said the following (footnoted citations omitted):

   The sentencing judge was plainly aware that Mr Roberts had pleaded guilty to all charges.  However, the question is not whether he was aware of that fact, but rather, whether he adjusted the sentences which he imposed because of that fact.  In relation to that question, as Steytler P observed in H v The State of Western Australia [[2006] WASCA 53; (2006) 163 A Crim R 151 [10]]:

   [T]he failure to refer to the effect of a plea of guilty will ordinarily be an indication that a sentencing judge has overlooked it.

   The inference that the effect of the pleas of guilty was overlooked is to be drawn from the sentencing judge's failure to refer to any discount for Mr Roberts' pleas of guilty, or to satisfy the obligation imposed by s 9AA of the Sentencing Act to specify the extent of the discount. That inference is reinforced by the sentences which he imposed. In the circumstances of this case, there is no reasonable basis upon which Mr Roberts could have been denied the maximum discount of 25% available pursuant to s 9AA of the Sentencing Act. That discount is to be applied before the sentence is adjusted to reflect other mitigating factors such as, in this case, Mr Roberts' full cooperation with police including his revelation of other offences not known to police, his favourable antecedents, his remorse and his low risk of reoffending, all of which must have attracted a collective discount of well over 6 months. If the sentences of 2 years and 6 months imprisonment imposed in relation to the offences of manufacturing an explosive substance are accordingly adjusted upwards to identify the sentences which would have been imposed but for those mitigating factors, and then increased by one-third to reflect the effect of a discount of 25% before other mitigating factors, the sentencing judge's starting point must have been terms of imprisonment well over 4 years, which seems either improbable or manifestly excessive. It cannot therefore be concluded that the judge's failure to refer to or specify the extent of the discount given to reflect the guilty pleas was immaterial.

   [44] H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151 [10]; Winmar v Clark [2015] WASC 314 [26].

   [45] Roberts v The State of Western Australia [2014] WASCA 239; (2014) 249 A Crim R 154 [48] - [49].

9. In a similar vein, in Schulz v Coyne[46] Hill J said the following (citations omitted):

   … The failure to state that a sentence has been reduced, and to quantify the reduction, does not necessarily mean that a reduction has not been made and the sentencing discretion is miscarried.  However, to avoid the conclusion that a material error has occurred, it is expected that the sentencing court should make reference to the mitigating effect of the guilty plea, and it should be apparent from the sentence that a reduction has been made.  A failure to refer to the plea of guilty is ordinarily an indication that the sentencing judicial officer has overlooked it.  The failure to properly consider and grant the discount is a material error because it constitutes a failure to take into account a material consideration.

   [46] Schulz v Coyne [30].

10. Having said the above, it is well recognised that in determining an allegation that a magistrate has failed to take a relevant sentencing consideration into account it is important, having regard to the circumstances in which magistrate's sentencing remarks are delivered (most often on an ex tempore basis as in this case) and the very busy workload of the Magistrates Court, to ensure that the sentencing remarks are read as a whole, in context and not with an eye finely tuned for error.[47]

The parties' submissions - summary

[47] Harper v Page [2004] WASCA 267 [24]; Willenberg v Downey [2015] WASC 282 [61].

1. The appellant submits that the appellant pleaded guilty to the offences at an early stage in the prosecution proceedings and was entitled to a 25% reduction, or something close thereto, from the head sentences, that is, from the individual sentences of imprisonment that would in the absence of the guilty pleas have been imposed.  The appellant submits, in substance, that the only inference that can reasonably be drawn from the magistrate's failure to make any reference in her sentencing remarks to the appellant's guilty pleas and from the individual sentences and total sentence imposed for the offences, is that the magistrate failed to reduce the head sentences to take account of his guilty pleas and therefore also failed to take his guilty pleas into account in determining the individual sentences and total sentence imposed for the offences.[48]  The appellant submits that having regard to the circumstances of the offences, the lengths of the individual and total sentences imposed by the magistrate for the offences do not compel the conclusion that her Honour must have taken his guilty pleas into account despite the fact that she did not make any reference to doing so.  The appellant submits that the magistrate's failure to take account of his guilty pleas in determining the individual sentences and total sentence to be imposed for the offences amounted to a material error of law and consequently gave rise to a substantial miscarriage of justice. 

   [48] Although the power given to a sentencing judicial officer by s 9AA(2) is to reduce the head sentence 'for the offence', it is well established that the mitigating effect of a guilty pleas to multiple offences must be reflected not only in individual sentences but also in the total sentence imposed; LTT v The State of Western Australia [2022] WASCA 31 [56]. The reflection of the mitigating effect of guilty pleas in the total sentence imposed for multiple offences should necessarily follow from the proper application of the totality principle (referred to further below) to the individual sentences that have been arrived at after allowing for the mitigating effect of the guilty pleas.

2. The respondent concedes that the magistrate did not reduce the sentences imposed for the offences to reflect the pleas of guilty and did not have regard to the guilty pleas in determining the type of sentences to impose.  In this respect the respondent concedes that it cannot be confidently inferred from the sentences actually imposed by the magistrate that reductions for the guilty pleas were in fact made.   The respondent therefore concedes that the magistrate made the alleged material error of law.

Did the magistrate fail to take the guilty pleas into account?

1. I am satisfied that the magistrate did not, in determining the type of sentences to be imposed for the offences, take account of the appellant's guilty pleas. I am also satisfied that the magistrate did not, in determining the individual sentences of imprisonment to be imposed for the offences, take account of the appellant's guilty pleas by reducing pursuant to s 9AA(2) the head sentences (that is, by reducing the individual sentences that she would have imposed if the appellant had not pleaded guilty and there were no other mitigating factors). To put the matter another way, I am satisfied that the magistrate overlooked the appellant's guilty pleas in determining the sentences imposed on the appellant for the offences. I have come to this conclusion having regard to the combined force of the following matters.

2. First, the appellant did not enter his guilty pleas before the magistrate.  Rather, he entered his guilty pleas at earlier hearings before a different magistrate.

3. Second, the appellant's counsel did not in his plea in mitigation make any reference to the fact that the appellant had pleaded guilty to the offences.  Thus the guilty pleas were not drawn to the magistrate's attention.

4. Third, the magistrate did not state that she had reduced the sentences that she would otherwise have imposed to take account of the appellant's guilty pleas.

5. Fourth, despite the guilty pleas being an obviously mitigating factor, the magistrate did not make any reference, oblique or otherwise, to the guilty pleas in her sentencing remarks.

6. Fifth, and for reasons that are apparent from what I say later in these reasons in relation to the resentencing of the appellant, the individual sentences and total sentence imposed by the magistrate are not sufficiently low to justify the drawing of the inference that her Honour did, in arriving at the individual sentences for the offences, give to the appellant a reduction pursuant to s 9AA(2). That is, it is not readily apparent from the length of the individual sentences and total sentence imposed that a reduction was given to take account of the guilty pleas.

Material error established

1. The appellant first appeared in the Magistrates Court in relation to the offences on 28 July 2021.  On that date the charges were adjourned to enable the appellant to seek legal advice and the appellant was remanded on bail to appear again on 26 August 2021.[49]  The appellant appeared on 26 August 2021 and, as I have indicated, pleaded guilty to the offences at that appearance. 

   [49] Record of Court Proceedings attached to Prosecution Notice for charges BU 2960/2021 - 2966/2021; Record of Court Proceedings attached to Prosecution Notice for charges BU 2967/2021 - 2968/2021.

2. Given the number and nature of the appellant's appearances prior to pleading guilty to the offences, I am satisfied that the appellant's guilty pleas were entered at the first reasonable opportunity.  I note that the respondent does not argue to the contrary.

3. Given that the appellant entered his pleas of guilty at the first reasonable opportunity, there is no reasonable basis upon which the appellant could have been denied a reduction of 25%, or something close thereto, pursuant to s 9AA(2) of the Sentencing Act from each of the individual sentences imposed for the offences.  If the appellant had been given a reduction from each of the individual sentences imposed for the offences, the proper application of the totality principle would have resulted in the magistrate imposing a lesser total sentence.  It follows that the magistrate's failure to take account of the appellant's guilty pleas amounted to a material error of law, that is, an error that affected the individual sentences imposed and consequently the total sentence imposed.

4. The ground of appeal has been made out.

Ground 2

1. Ground 2 of the appellant's grounds of appeal is expressed in the following terms:

   The learned Magistrate erred in law by not taking into consideration significant matters in mitigation in particular the appellant's completion of the drug and alcohol programme between 26/8/21 and 7/4/22.

2. Accordingly, the ground alleges an express error by the magistrate constituted by the magistrate's failure to take into account 'significant matters in mitigation' in determining the sentence to be imposed on the appellant for the offences.

Applicable general principles

1. Section 8(1) of the Sentencing Act provides that a mitigating factor is a factor that in the court's opinion decreases the culpability of the offender or decreases the extent to which the offender should be punished.[50]

   [50] Sentencing Act, s 8(1).

2. As I have already stated in dealing with ground 1, s 8(4) of the Sentencing Act provides that if a court reduces the sentence it would otherwise have imposed because of a mitigating factor, the court must state this fact in open court. However, a failure to comply with s 8(4) is not an appealable error. Non‑compliance with s 8(4) does not invalidate the sentence.[51]

   [51] Royer v The State of Western Australia [59]; Nolan v The State of Western Australia [44]; Bradbury v The State of Western Australia [76].

3. The failure by a sentencing judicial officer to refer to all relevant factors in sentencing reasons does not of itself establish a failure to consider those factors.[52]  Further, the statements made above in dealing with ground 1 in relation to ensuring that the sentencing remarks of magistrates are not read with an eye finely tuned for error are equally applicable to an allegation of the type made in this ground.

   [52] Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1 [27].

4. Clearly, the failure by a judicial officer to take a factor into account in determining a sentence to be imposed on an offender will only constitute a material error if the factor is one that ought to have been taken into account in the determination of the sentence, that is, is a factor to which some weight needed to be given.[53]

The parties' submissions - summary

[53] Milenkovski v The State of Western Australia [14]; Whitby v The State of Western Australia [2019] WASCA 11 [172].

1. The appellant submits that at the hearing before the magistrate his counsel identified for her Honour's consideration the following factors that were personal to the appellant:

   1.The appellant's predicament of homelessness that affected him at the time of committing the two offences during the term of the ISO;

   2.The appellant's long history of employment and relatively recent decline into serious drug addiction with associated offending;

   3.The appellant's long period of engagement with drug diversion and his ongoing desire to abstain from drug use;

   4.The appellant's general compliance with the ISO; and

   5.The de-escalation of the appellant's offending in general.

2. I take the appellant's reference to his 'general compliance' with the ISO to be a reference to his compliance with directions given to him pursuant to the supervision and programme requirements of the order, and his engagement, even if somewhat superficial, with South West Drug and Alcohol Service.

3. The appellant submits that each of the above identified factors were mitigating factors personal to him.  The appellant submits that the overall import of counsel's submissions in drawing the magistrate's attention to these factors, combined with the information provided to the magistrate by the CCO, was that the appellant had prospects of meaningful rehabilitation if he was appropriately supported, and that he did not pose an escalating risk to the community.

4. The appellant concedes that the magistrate did find that the nature of the offences committed by the appellant during the term of the ISO suggested a de-escalation in the seriousness of his offending.  However, the appellant submits that although the magistrate made this finding it cannot be inferred from her Honour's sentencing remarks that she actually took the factor into account as a mitigating factor in determining the sentences to be imposed for the offences.  The appellant also submits that the magistrate did not, in determining the sentences to be imposed for the offences, take into account the first four factors identified in paragraph 75 above as mitigating factors.  The appellant further submits that the magistrate's failure to take into account the de-escalation in the seriousness of his offending and the other four identified factors amounted to a material error of law.[54]  In support of the submission that the magistrate did not take into account the first four factors identified in par 75 above, the appellant points to the fact that the magistrate did not, in her sentencing remarks, expressly refer to any of the factors as mitigating factors or at all.

   [54] Sentencing Act, s 6(2)(d).

5. The respondent submits that the magistrate did consider matters personal to the appellant.  The respondent submits that the de-escalation in the seriousness of the appellant's offending was not in truth a mitigating factor, although it was of relevance to the sentencing consideration of personal deterrence.  The respondent submits that the appellant bore the onus of satisfying the magistrate on the balance of probabilities that he had sound prospects of rehabilitation, that the magistrate was, in all the circumstances, entitled to find that she was not so satisfied, and that therefore the alleged mitigating factor did not exist.  Accordingly, the respondent submits that the magistrate did not make the alleged material error of law.

Were the identified factors mitigating factors?

1. The first question to address, in determining the ground of appeal, is whether any of the above factors identified by the appellant were mitigating factors, that is, factors that decreased his culpability for committing the offences or decreased the extent to which he should be punished.[55]

   [55] Sentencing Act, s 8(1).

2. In my opinion the de-escalation in the seriousness of the appellant's offending was not in truth a mitigating factor.  The fact that the appellant had not committed any further offences involving the cultivation of cannabis or the possession of cannabis with intent to sell or supply since being placed on the ISO, did not decrease his culpability for committing the offences or decrease the extent to which he needed to be punished for the offences.  Nonetheless, and as the respondent concedes, the factor was relevant to the exercise by the magistrate of her sentencing discretion in that it bore upon the extent to which the sentences imposed needed to give effect to the sentencing consideration of personal deterrence.

3. In my opinion the factors identified in points 1 - 4 in par 75 above were mitigating factors in the sense that they decreased, albeit only marginally, the extent to which the appellant should be punished for the offences.  They were, in my opinion, factors to which some limited weight needed to be given.[56]

   [56] Milenkovski v The State of Western Australia; Whitby v The State of Western Australia [172].

4. As to the issue of the prospects of the appellant's rehabilitation, although it can be accepted that the overall import of counsel's submissions to the magistrate was that the appellant had prospects of meaningful rehabilitation if he was appropriately supported, I am not persuaded that the information put before the magistrate was of sufficient cogency to require her Honour to make a positive finding on the balance of probabilities that the appellant did have meaningful prospects of rehabilitation.  The appellant had reoffended while on the ISO.  He was, on his own admission, still using methylamphetamine, albeit not on a daily basis.  Further, the CCO had, in essence, raised concerns about the appellant's level of engagement with the programme requirement of the ISO and had expressed doubts about the ability of ACC to implement any further strategies that would be likely to make a difference to the appellant's level of engagement.

5. It follows from what I have said in the previous paragraph that I am not satisfied that at the time of the appellant's sentencing the appellant's prospects of rehabilitation constituted a mitigating factor, that is, a factor that decreased his culpability for committing the offences or decreased the extent to which he should be punished for the offences.  Accordingly, and accepting for the sake of the argument that the magistrate did fail to treat the appellant's prospects of rehabilitation as a mitigating factor, in my opinion her Honour did not make an error in doing so.

Did the magistrate fail to take the mitigating factors into account?

1. The next question for determination is whether the magistrate failed to take into account the factors identified in par 75 above in determining the sentence imposed for the offences.

2. In her sentencing remarks the magistrate, as I have already noted, expressly stated and found that the offences which the appellant had committed during the term of the ISO were 'not of a serious nature' and that this 'would suggest that [his] behaviour [was] de-escalating'.  If the magistrate did not consider the de-escalation in the seriousness of the appellant's offending behaviour to be a factor that was relevant to her determination of the sentences to be imposed for the offences there would have been no need for her Honour to expressly refer to this factor. In these circumstances I am not satisfied that her Honour failed to have regard to the de-escalation in the seriousness of the appellant's offending in determining the sentences to be imposed on him for the offences, or more specifically, as a factor that was relevant to her determination of the extent to which the sentences needed to give effect to the sentencing consideration of personal deterrence. 

3. It is the position that the magistrate did not in her sentencing remarks make express individual or collective reference to the mitigating factors identified in points 1 - 3 in par 75 above.  Further, although the magistrate did refer to the appellant's failure to engage fully and holistically in the ISO, she did not make any reference to the fact that the appellant had generally complied with the directions given to him pursuant to the supervision and programme requirements of the order (point 4 in par 75 above).

4. The appellant's counsel's plea in mitigation was relatively brief.  The magistrate commenced to sentence the appellant immediately after hearing the plea in mitigation.  It might be said that these circumstances point to the unlikelihood of the magistrate having failed to consider or take account of the mitigating factors.

5. On the other side of the ledger, however, is that the magistrate did not in her sentencing remarks make even a passing, general or indirect reference to any of the mitigating factors individually or to the mitigating factors collectively.  Her Honour did not, for example, state that she had taken the matters referred to by the appellant's counsel into account or that she had taken matters personal to the appellant into account.  Even if her Honour had made express reference to only one of the mitigating factors, it could be more readily inferred that she had not overlooked the mitigating factors as a whole.  However, this is not what occurred.  Further, and for reasons that are apparent from my remarks in dealing with ground 4, given the type of sentences imposed by the magistrate, that is, immediate imprisonment, the sentences do not, in my view, compel or even strongly support the conclusion that her Honour did, in arriving at the sentences for the offences, take account of the mitigating factors.

6. I am very conscious of the fact that the magistrate delivered her sentencing remarks ex tempore immediately following the appellant's counsel's plea in mitigation.  I am also very conscious of the nature of the Magistrates Court jurisdiction and the consequential inability of magistrates to routinely refer expressly and individually to every matter advanced on behalf of an offender by their counsel.  Nonetheless, even making full allowance for these considerations, the matters referred to in the previous paragraph lead me to conclude that the magistrate either overlooked the identified mitigating factors, or if she did not overlook them, failed to give them any weight. 

Material error established

1. For the reasons I have given the alleged material error has been established.  The ground of appeal has been made out.

Ground 4

1. Ground 4 of the appellant's grounds of appeal is expressed in the following terms:

   The learned magistrate erred in law by failing to properly consider whether to suspend the sentence of imprisonment before it was imposed in accordance with Dinsdale v The Queen (2000) 202 CLR 321.

Required approach to determining if term of imprisonment can be suspended

1. A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended imprisonment.[57]   In other words, a court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.[58]

   [57] Sentencing Act, s 39(2) and s 39(3). Section 4(4) of the Sentencing Act provides that a reference in the Act to 'the suspension of a term or terms of imprisonment is a reference to the suspension of … the whole of the term or terms or … part of the term or terms'.

   [58] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; The State of Western Australia v Johnson [2009] WASCA 224; (2009) 213 A Crim R 1 [68]; Skipworth v The State of Western Australia [2008] WASCA 64 [8], [11].

2. The court must be positively satisfied that the option of suspending imprisonment is not appropriate before it can impose a term of immediate imprisonment.[59]  In determining if the option of suspending imprisonment is not appropriate the court must revisit the factors that it has taken into account in determining that a term of imprisonment is the only appropriate disposition.[60]

   [59] Fogg v The State of Western Australia [2011] WASCA 11 [8]; DKN v The State of Western Australia [2018] WASCA 87[38].

   [60] Cartwright v The State of Western Australia [2010] WASCA 4 [8]; Skipworth v The State of Western Australia [8]; DKN v The State of Western Australia [36].

3. It is well established that the scheme of the Sentencing Act requires the court to engage in a two-step process.  First the court is required to decide if a sentence of imprisonment is the only appropriate sentencing option.  Second, the court must determine whether the sentence of imprisonment should be suspended for a specified period.[61]  It is only if the court decides that a sentence of imprisonment should not be suspended that the court can proceed to impose a sentence of immediate imprisonment.

The parties' submissions - summary

[61] Dinsdale v The Queen [79].

1. The appellant does not seek to contend that the magistrate failed to consider suspending the terms of imprisonment that she imposed for the offences.  This is unsurprising given that at the end of her sentencing remarks the magistrate expressly stated that she did not propose to suspend the term of imprisonment for the reasons that she had 'spoken about' in sentencing the appellant.  Rather, the appellant's contention is that the magistrate failed to properly consider suspending the terms of imprisonment because she did not expressly engage in the two-step process referred to above, failed to take into account considerations that were relevant to the determination of whether the sentences imposed should be suspended and did not state her reasons for concluding that suspension was inappropriate.  The considerations that the appellant submits that the magistrate erroneously failed to take into account are his pleas of guilty, his expressed willingness to continue to comply with the ISO, his general compliance with the ISO and his prospects of meaningful rehabilitation.

1. The respondent concedes that the magistrate did fail to properly consider suspending the sentences of imprisonment that she imposed because she did not take into account the appellant's pleas of guilty when dealing with the question whether to suspend the sentences.  The respondent therefore concedes that the magistrate made the alleged material error of law.

Material error established

1. It is the position that the magistrate did not in sentencing the appellant clearly articulate the two-step process referred to above; that is, her Honour did not deal with the question whether to suspend the terms of imprisonment after concluding that imprisonment was the only appropriate disposition but prior to concluding that immediate imprisonment was the only appropriate disposition.  However, at the end of her sentencing remarks the magistrate expressly stated that she did not propose to suspend the term of imprisonment for the reasons that she had 'spoken about' in sentencing the appellant.  It is apparent from this statement that the magistrate did give consideration to suspending the sentence of imprisonment that she considered to be appropriate and that she had decided not to do so for the reasons that she had given in concluding that a sentence of imprisonment was the only appropriate disposition; that is, she had decided not to do so given the maximum penalties for the offences, her assessment of the offences as being 'extremely serious', the appellant's failure to engage fully and holistically in the ISO, and the need to impose a sentence capable of acting as a specific and general deterrent.  Therefore, to the extent that the magistrate failed to deal with the issue of whether to suspend the terms of imprisonment imposed for the offences in strict accordance with the two-step process, the failure did not constitute a material error of law.

2. I am, however, satisfied, for reasons that are apparent from what I have said in dealing with grounds 1 and 2, that the magistrate, in deciding whether to suspend the sentences of imprisonment imposed, failed to take into account the appellant's guilty pleas and the other mitigating factors referred to in points 1 - 4 in par 75 above.   This was a material error of law.

3. The ground of appeal has been made out.

Ground 5

1. By ground 5 the appellant contends that the 'sentences of imprisonment are manifestly excessive'. 

2. The ground of appeal does not allege an express error by the magistrate.  Rather, the ground alleges an implied error, specifically that the magistrate erred by concluding that the only appropriate sentence was a term of immediate imprisonment.

3. During the hearing of the appeal the appellant's counsel, in response to questioning by me, confirmed, in substance, that in relation to the cultivation of cannabis offence the appellant's allegation the subject of the ground of appeal is that the imposition of a term of imprisonment (immediate or suspended) was manifestly excessive and that in relation to the possession of cannabis with intent offence the appellant's allegation the subject of the ground of appeal is that the imposition of an immediate term of imprisonment was manifestly excessive.[62]  In other words, the appellant alleges by the ground of appeal that the wrong type of sentence was imposed for each of the offences.

   [62] ts 13 - 14, 21 February 2023.

Appeal on ground wrong type of sentence imposed - general principles

1. The principles to be applied by an appellate court in a case such as the present where the allegation is that the wrong type of sentence was imposed are well established.  Where the allegation is that the wrong type of sentence was imposed the appellate court cannot substitute its own opinion for that of the sentencing judicial officer merely because the appellate court would have exercised the sentencing discretion differently.  Rather, the appellate court must be satisfied that the type of sentence imposed was so unreasonable or unjust that a substantial wrong has occurred.[63]  To put the matter another way, the question for the appellate court is whether it was reasonably open for the sentencing judicial officer, upon application of the relevant sentencing principles and considerations, to be positively satisfied that the less serious sentencing option was not appropriate.[64]  Simply showing that a lesser type of sentence was also reasonably open is insufficient to establish error.[65]

   [63] Salkilld v The State of Western Australia [2017] WASCA 168 [48]; Page v The State of Western Australia [2018] WASCA 76 [36].

   [64] Mason v The State of Western Australia [2018] WASCA 43 [55] - [56]; Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 549; DKN v The State of Western Australia [39]; Dillon v The State of Western Australia [2020] WASCA 24 [30]; Kelly v The State of Western Australia [2020] WASCA 29 [50]; Shi v The State of Western Australia [2020] WASCA 197[42]; The State of Western Australia v Saleh [2020] WASCA 205; Panomarenko v The State of Western Australia [2022] WASCA 71 [61].

   [65] Houghton v The State of Western Australia [No 2] [2022] WASCA 7 [229].

2. In order to determine whether it was reasonably open to the sentencing judicial officer, upon application of the relevant sentencing principles and considerations, to be positively satisfied that the less serious sentencing option was not an appropriate disposition for the offence, the offence should be viewed in light of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to the offence, the place that the criminal conduct occupies in the scale of seriousness of offences of the kind in question, all aggravating and mitigating factors, and the offender's personal circumstances and antecedents.[66]

   [66] Salkilld v The State of Western Australia [48]; Mason v The State of Western Australia [64] - [70]; Page v The State of Western Australia [36]; Panomarenko v The State of Western Australia [61].

3. The guidance afforded by comparable cases is flexible rather than rigid.  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 a 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.  A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding if the wrong type of sentence was imposed.[67]

   [67] Eldridge v The State of Western Australia [2020] WASCA 66 [22(3)] - [22(4)]; WRT v The State of Western Australia [2020] WASCA 68 [40].

Parties' submissions - summary

1. The appellant submits that having regard to the level of seriousness of the offences and the mitigating factors present in his case:

   1.the imposition by the magistrate of a sentence of imprisonment for the cultivation of cannabis offence was manifestly excessive because a sentence less than imprisonment was appropriate; and

   2.the imposition by the magistrate of a sentence of 6 months immediate imprisonment for the possession of cannabis with intent offence was manifestly excessive because 'either a suspended term of imprisonment or a pre-sentence order with an indicated term of imprisonment [was] an appropriate disposition'.[68]

   [68] Appellant's Outline of Submissions dated 13 January 2023, par 61 - 62.

2. In his written submissions filed in advance of the appeal the respondent submitted that the appellant had failed to demonstrate that it was not reasonably open for the magistrate to conclude that a sentence other than immediate imprisonment was not appropriate for the offences.[69]  The respondent submitted that the appellant's submissions, taken at their highest, demonstrated that a suspended sentence may, on one view, have been a possible option and that this was insufficient to establish implied error.[70] 

   [69] Respondent's undated Outline of Submissions (Respondent's Submissions), par 46 and 59.

   [70] Respondent's Submissions, par 47.

3. In his written submissions filed in advance of the appeal the respondent further submitted that the central issue in relation to this ground of appeal was whether the appellant had demonstrated that the magistrate's conclusion that suspension was not appropriate with respect to the more serious possession of cannabis with intent offence was a conclusion that was not reasonably open to her Honour. The respondent noted in this respect that s 76(3) of the Sentencing Act precluded the magistrate from imposing a suspended term of imprisonment for the offence of cultivation of cannabis 'once it had been decided to impose an immediate term in relation to the offence of possession with intent to sell or supply'.[71]

   [71] Respondent's Submissions, par 45.

4. The respondent's submission referred to in par 109 above was problematic in the sense that it assumed that a sentence other than suspended imprisonment or a community order, such as a fine, was not in all the circumstances the appropriate sentence for the cultivation offence.  In any event, during the hearing of the appeal the respondent resiled from the submission that the appellant had failed to demonstrate that it was not reasonably open for the magistrate to conclude that a sentence other than imprisonment (immediate or suspended) was not appropriate for the cultivation of cannabis offence.[72] In other words the respondent accepted (in my view correctly for the reasons I give below) that the sentence of imprisonment imposed for the cultivation of cannabis offence was manifestly excessive. In light of s 86 of the Sentencing Act this appropriately made concession has, as was in effect acknowledged by the respondent's counsel during the hearing of the appeal and for reasons that I elaborate on below, implications for the respondent's submission that the appellant has failed to demonstrate that it was not reasonably open for the magistrate to conclude that a sentence other than immediate imprisonment was not appropriate for the possession of cannabis with intent offence.[73]

Analysis and decision

Statutory penalty

[72] ts 33 - 35, 21 February 2023.

[73] ts 34, 21 February 2023.

1. The maximum sentence for the offence of cultivating cannabis is a fine not exceeding $2,000 or 2 years' imprisonment or both.[74]

   [74] MDA, s 34(1)(e).

2. The maximum sentence that was able to be imposed by the magistrate for the offence of possessing cannabis with intent to sell or supply, being the maximum summary conviction penalty, was a fine of $5,000 or 4 years imprisonment or both.[75]  However, the maximum summary conviction penalty is only a jurisdictional limit.  It is not the statutory maximum penalty.  The statutory maximum penalty for the offence of possessing cannabis with intent to sell or supply, which is the relevant maximum penalty for the purposes of dealing with the ground of appeal, is a fine of $20,000 or 10 years' imprisonment or both.[76]

Seriousness of the offences

[75] MDA, s 34(2)(b).

[76] MDA, s 34(2)(a); Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326 [24] - [33]; Mitchell v Purvis [2016] WASC 351 [28]; Stanley v The State of Western Australia [2018] WASCA 229 [46].

1. In assessing the seriousness of the appellant's cultivation of cannabis offence, it is important to remember that the appellant was convicted only of cultivating cannabis plants, not cultivating cannabis plants with the intention of selling or supplying any cannabis obtained from the plants contrary to s 7(1)(a) of the MDA. Accordingly, and at the risk of stating the obvious, the assessment of the seriousness of the offence cannot be approached on the basis that the appellant had an intention to sell or supply any of the cannabis material that he obtained from the plants that he cultivated.

2. The appellant's cultivation of cannabis offence was comprised of the appellant growing two cannabis plants in his back yard.  It would appear that the appellant managed to harvest from the plants approximately 100 gm of cannabis although, and as I have just stated, the appellant cannot be treated as having an intention to sell or supply any portion of this harvested amount.  Given the small number of plants cultivated and the apparent lack of sophistication of the cultivation process, the appellant's offence, on any view of the matter, fell very much at the low end of the scale of seriousness for offences of its type.  The offence was not, contrary to the view formed by the magistrate, 'extremely serious'.

3. The appellant's offence of possessing cannabis with intent to sell or supply involved 36 gm of cannabis.  This was in relative terms not a large amount.  Although the quantity of drugs is not always the most significant factor in determining the seriousness of an offence, clearly it is a relevant factor.[77] 

   [77] Greenfield v The State of Western Australia [2019] WASCA 29 [27].

4. At the hearing before Magistrate Tyers the appellant's counsel informed the magistrate that the appellant's selling and supplying of cannabis had been limited to 'a small circle of friends' and had been engaged in by him so that he could fund his drug habit.  This assertion was not disputed by the prosecution and therefore in assessing the seriousness of the appellant's offence it is necessary to proceed on the basis (as Magistrate Tyers apparently did) that the appellant's intention, in relation to the 36 gm of cannabis the subject of the offence, was to sell or supply some or all of it to a small circle of friends to fund his own drug addiction.  Obviously, the fact that the appellant intended to sell the cannabis to fund his own drug addiction was not a mitigating factor.  Nonetheless, the fact remains that the appellant's intention was not to engage in a course of sophisticated commercial selling of the cannabis with a view to making a profit.

5. It is apparent from the indicia of drug dealing found during the execution of the search warrant (cash, electronic scales, clip seal bags) and the admissions made by the appellant to the police during the execution of the search warrant that he had previously been involved in selling cannabis to his 'small circle of friends' to fund his drug addiction.  The assessment of the seriousness of the appellant's possession with intent offence cannot be approached on the basis that he has committed offences of which he has not been convicted.  However, the fact that the appellant had engaged in selling or supplying cannabis prior to committing the offence of which he was convicted means that his offence cannot be viewed as an isolated incident of criminal conduct.[78]  Rather, it was committed as part of an ongoing course of dealing in cannabis.

   [78] Nguyen v The State of Western Australia [2019] WASCA 56 [34].

6. Taking into account the above considerations, I do not think it can be said that the appellant's possession of cannabis with intent offence was at the lowest end of the scale of seriousness of offences of its type.  However, given the relatively small amount of cannabis involved and the nature of the appellant's selling and supplying operations, the offence clearly, in my view, fell towards the lower end of the scale of seriousness for offences of its type.  Again, the offence, while having some serious aspects to it, was not, contrary to the view formed by the magistrate, 'extremely serious'. 

Mitigating factors

1. At the time that the appellant was dealt with by the magistrate for the offences there were a number of mitigating factors in his case, some of which were of more significance than others.  The mitigating factors were as follows:

   1.After committing the offences and prior to being sentenced for the offences by Magistrate Tyers, the appellant had made genuine efforts to deal with his drug addiction by engaging in the drug rehabilitation programme;

   2.The appellant had committed the offences in the context of some personal trauma that contributed to him developing a significant drug addiction and consequently engaging in the sale or supply of the cannabis;

   3.The appellant had complied with the conditions of the ISO, although his engagement with the programme requirement of the order had been somewhat superficial;

   4.Save for a relatively short period of time prior to committing the offences, the appellant had a long and well established work history;

   5.The appellant wanted to return to work and had taken some preliminary steps to seek employment;

   6.The appellant had expressed an intention to continue to attempt to cease his use of drugs and was willing to continue engaging in programmatic intervention under the conditions of the ISO;

   7.Although the appellant was by no means a first offender, his criminal record was relatively limited with his most recent prior offences having been committed in 2007; and

   8.The appellant had pleaded guilty to the offences at the first reasonable early opportunity. 

2. With respect to the appellant's criminal record, in 2004 the appellant was convicted of one offence of cultivating a prohibited plant for which he was fined $150.  Then, in 2007 the appellant was convicted of one offence of possessing a smoking utensil, three offences of possessing cannabis, one offence of possessing amphetamine and two offences of breaching bail.  These offences were committed on various dates between November 2006 and February 2007.  The appellant was fined for all the offences.  The appellant did not reoffend until he committed the offences for which he was placed on the ISO. 

3. Clearly the nature and extent of the appellant's record precluded him from being treated as a first offender.  However, in my opinion the fact that the appellant had, prior to committing the offences for which he was placed on the ISO, lived in the community for approximately 14 years without committing an offence did carry with it some limited mitigatory benefit.

Standards of sentencing customarily observed

1. The parties have not been able to locate any appellate decision that deals with the sentences commonly imposed for the offence of cultivating small numbers of cannabis plants.  I have not been able to locate any such decision. 

2. With respect to the offence of possessing cannabis with intent to sell or supply to another, there is obviously a wide range of circumstances in which offences of this type can be committed.  There is no established range of penalties for such offences and the penalties imposed have included fines through to sentences of immediate imprisonment.[79] 

   [79] Mitchell v Purvis [2016] WASC 351 [29].

3. The parties have drawn my attention to a number of decisions of the Court of Appeal which have been concerned with appeals against sentence for drug related offending and from which it can be discerned that individual sentences imposed at first instance for offences of possessing with intent to sell or supply relatively small quantities of cannabis have included terms of immediate imprisonment.[80]  However, in none of these decisions were the individual sentences imposed at first instance for the possession of cannabis with intent to sell or supply offence (or offences) the subject of a specific ground of appeal.  Rather, the grounds of appeal related to individual sentences imposed for more serious drug related offences or alleged contraventions of the totality principle.   Accordingly, the decisions are of very limited assistance in determining if the sentence imposed by the magistrate for the appellant's offence was manifestly excessive.  They cannot, in my view, be relied upon for the purpose of discerning an established range of penalties for a single offence of possessing a relatively small amount of cannabis with intent to sell or supply.

   [80] Hobby v The State of Western Australia [2009] WASCA 108; The State of Western Australia v Atherton [2009] WASCA 148; Waldron v The State of Western Australia [2010] WASCA 63; Sandwell v The State of Western Australia [2012] WASCA 15; Le v The State of Western Australia [2014] WASCA 120; Rodi v The State of Western Australia [No 2] [2014] WASCA 233; Dias v The State of Western Australia [2017] WASCA 49; The State of Western Australia v Nillson [2017] WASCA 68; Nickson v The State of Western Australia [2021] WASCA 40.

1. There is a further decision of the Court of Appeal which is referred to by the respondent and to which reference can, I think, be more usefully made in this context.

2. In Greenfield v The State of Western Australia,[81] the offender was convicted on his plea of guilty on one offence of possessing cannabis with intent to sell or supply (count 2) and after trial of one offence of possessing methylamphetamine with intent to sell or supply (count 1).  The offender was sentenced to 4 years immediate imprisonment in respect of count 1 and to 6 months immediate imprisonment in respect of count 2 (reduced from 1 year and 3 months imprisonment for totality reasons).  The sentencing judge ordered that the sentences be served cumulatively thus giving a total effective sentence of 4 years and 6 months immediate imprisonment.  On appeal the offender alleged that the sentence imposed in respect of count 2 was manifestly excessive and that the total effective sentence contravened the totality principle.

   [81] Greenfield v The State of Western Australia [2019] WASCA 29.

3. The facts of the offender's offences were that on 3 March 2015 the police executed a search warrant at his property.  In the course of the search the police found, relevantly to count 1, 32.1 gm of methylamphetamine with a purity of 85%.  Relevantly to count 2, the police found 5.46 gm of cannabis.  The police also seized from the appellant's car a number of items including two set of scales on which were found traces of methylamphetamine and cannabis.

4. In sentencing the offender the sentencing judge found that the appellant dealt in cannabis in varying amounts including 1 ounce quantities.  The judge rejected the proposition that the appellant only supplied cannabis to his friends.

5. The offender was 48 years old at the time he committed the offences.  He began dealing in cannabis on a commercial basis after he lost his employment.

6. The offender had a prior criminal record which included convictions for possessing prohibited drugs, specifically cannabis and methylamphetamine, as well as convictions for various traffic offences.

7. The offender had undertaken counselling for his illicit drug use in the past.  Further, prior to being sentenced he had participated in a 12-week group programme.

8. The sentencing judge found that the offender's plea of guilty was not an expression of remorse and that no benefit had been achieved by it.  The judge gave no discount for the plea.

9. The Court of Appeal dismissed the offender's appeal.  In dismissing the ground of appeal relating to the individual sentence imposed for the possession of cannabis with intent offence, the Court said the following:[82]

   [82] Greenfield v The State of Western Australia [31] - [40].

   In oral argument, neither counsel was able to point to any case decided by this court or its predecessor which involved a quantity of cannabis as low as the quantity in this case.  Quantities in the order of the quantity of cannabis in this case are generally dealt with in the Magistrates Court.  The absence of directly relevant comparators is not a barrier to this court deciding whether the sentence on count 2 is manifestly excessive.  This court remains able to form a judgment as to the ground, albeit without the yardstick of the outcomes in comparable cases.

   Count 2 involved the possession of what can properly be described as a small quantity of cannabis with an intent to sell or supply it to another. The offence was committed in the context that the appellant dealt in 1 oz quantities of cannabis, and that he was a commercial dealer in the drug over a period of time.  He was also dealing in cannabis at the same time as he was dealing in methylamphetamine…[C]annabis is not a harmless drug.

   The appellant is not a person of prior good character.  He is a man of mature years.  He has a relevant record of prior convictions. Deterrence, both general and personal, were relevant sentencing considerations.

   Given the lateness of the plea of guilty, it was not a mitigating factor. Indeed, there is very little that can be said in mitigation for the appellant, save that he had undertaken some counselling for his illicit drug use prior to being sentenced.  Even that is somewhat dubious in light of the fact that while the appellant was on bail for the present offence, he was found in possession of a quantity of cannabis.

   Despite all of these matters, it remains the fact that the appellant was found with only a small quantity of the drug.  While quantity of an illicit drug is not the be all and end all, it remains an important sentencing consideration.

   When his Honour came to sentence the appellant on count 2, he had already sentenced the appellant to an immediate term of imprisonment on count 1. By reason of s 76(3)(b) of the Sentencing Act 1995 (WA), his Honour could not impose a suspended term of imprisonment for count 2. Nor was an intensive supervision order an appropriate sentencing option. Counsel submitted that a fine was the appropriate penalty in this case.

   A court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community requires it. By reason of s 39 of the Sentencing Act, his Honour could only impose a term of immediate imprisonment if he was satisfied that it was inappropriate to impose a fine.  It appears from the sentencing remarks that his Honour was of that view.

   There are two questions for this court to decide.  First, was it was [sic] open to his Honour to be positively satisfied that a fine was inappropriate and that the only appropriate penalty was a term of immediate imprisonment? Secondly, if the only appropriate penalty was a term of immediate imprisonment, was it manifestly excessive in its length?

   In our opinion, having regard to all of the particular circumstances of this case, being the maximum penalty and the matters we referred to in [32] - [35], we are of the opinion that a fine would have been an inappropriate sentencing option in this case, and that, in the circumstances of the case, the only appropriate sentencing option was a term of immediate imprisonment.  As to its length, we regard the 6 months that was imposed by his Honour as being within the range of an appropriate exercise of the sentencing discretion. We have not been persuaded that the sentence was unreasonable or plainly unjust.  The sentence is not manifestly excessive.

   While we would grant leave to appeal on ground 2, we would dismiss the ground.

10. Obviously, one decision does not establish a range of penalties commonly imposed for a particular type of offence.  Moreover, and unlike the situation that existed in the appellant's case, the offender in Greenfield v The State of Western Australia only pleaded guilty at a very late stage in the proceedings for which he received no mitigatory benefit and was found to have been dealing in cannabis beyond his circle of friends.  Nonetheless, the decision does serve to demonstrate that in certain circumstances the imposition of a term of immediate imprisonment for an offence of possessing cannabis with intent to sell or supply will be the only appropriate disposition even when the offence involves a very small amount of cannabis.

Personal deterrence

1. At the time of appearing before the magistrate the appellant had not, since being placed on the ISO, committed any further offences involving the cultivation of cannabis or the selling or supplying of cannabis.  This fact suggested that the risk of him committing such offences had reduced, even if only slightly, since he had been placed on the ISO.  Nonetheless, the appellant's commission of the possession drug paraphernalia and possession cannabis offences during the ISO, viewed together with his ongoing use of methylamphetamine, revealed that he was still at risk of committing further offences involving the sale or supply of drugs.  Therefore the sentencing consideration of personal deterrence remained of some relevance to the exercise by her Honour of the sentencing discretion.

General deterrence

1. The sentencing consideration of general deterrence was, as recognised by the magistrate, clearly relevant to the determination of the sentence to be imposed on the appellant for his offence of possessing cannabis with intent to sell or supply.[83]  A necessary consequence of the magistrate giving effect to the sentencing consideration of general deterrence was that less weight had to be given to mitigating circumstances personal to the appellant.  The mitigating circumstances personal to the appellant were not irrelevant.  However, they assumed slightly less weight than what otherwise might be the case. 

Decision

[83] Lester v The State of Western Australia [2011] WASCA 128 [21] - [22]; Rillotta v The State of Western Australia [2017] WASCA 55; (2017) 266 A Crim R 32 [22].

1. For the reasons I have stated, both of the appellant's offences fell towards the low end of the scale of seriousness for offences of their type. 

2. There were some mitigating factors in the appellant's case.  The most significant of these mitigating factors were, in my view, his early pleas of guilty and the fact that between 2007 and April 2021 he had not committed any offences.

3. At the time of being sentenced for the offences by the magistrate the appellant had not committed any further cultivation or possession with intent offences for a period of approximately six months.  This was despite the fact that he was still battling with his addiction to methylamphetamine.

4. The cases to which I have referred do not, for the reasons I have stated, support the conclusion that in a case such as the present, where the offender has been convicted of a single offence of possessing a relatively small amount of cannabis with intent to sell or supply, a term of immediate imprisonment is invariably or even routinely imposed.

5. In relation to the cultivation of cannabis offence, when I take into account the statutory maximum penalty for the offence, the seriousness of the appellant's conduct in committing the offence, the nature of the offences committed by the appellant in breach of the ISO, and the mitigating factors that were present in the appellant's case at the time of being sentenced for the offence, I am satisfied that it was not reasonably open to the magistrate to conclude that a sentence other than imprisonment was inappropriate.  In my opinion, the imposition by the magistrate of a term of imprisonment for the offence of cultivating two cannabis plants was so unreasonable or unjust that it amounted to a substantial wrong. 

6. In relation to the possession of cannabis with intent offence, it follows from my conclusion in relation to the appellant's cultivation offence and from s 86 of the Sentencing Act to which I have already referred, that I am also satisfied that it was not open to the magistrate to conclude that a sentence of 6 months imprisonment was the appropriate sentence for the offence. The magistrate was, given that it was not reasonably open to her Honour to conclude that a sentence other than imprisonment was an inappropriate penalty for the cultivation offence, prohibited by s 86 from concluding that a term of 6 months imprisonment was the appropriate sentence for the possession with intent offence.[84]

   [84] Johnson v Vander Sanden [2021] WASCA 27; Bykerk v Director of Public Prosecutions (WA) [2022] WASC 451 [28] - [31].

7. I note that even if s 86 did not come into play, I would still conclude that the magistrate's imposition of a term of immediate imprisonment for the possession of cannabis with intent offence was manifestly excessive. That is, I would still conclude, taking into account the statutory maximum penalty for the offence, the seriousness of the appellant's conduct in committing the offence, the nature of the offences committed by the appellant in breach of the ISO, the mitigating factors that were present in the appellant's case at the time of being sentenced for the offence, the broad range of penalties imposed for offences involving the possession of relatively small quantities of cannabis with an intent to sell or supply, and the sentencing considerations of personal and general deterrence, that it was not reasonably open to the magistrate to conclude that a sentence other than immediate imprisonment for the offence was inappropriate. In my opinion, the imposition by the magistrate of an immediate term of imprisonment for the offence was, even if s 86 is put to one side, so unreasonable or unjust that it amounted to a substantial wrong.

8. The alleged implied error the subject of the ground of appeal has been established.  Accordingly, the ground of appeal has been made out. 

The resentencing of the appellant

1. Express and implied error having been established the sentencing discretion falls to be exercised afresh.[85]

   [85] NTH v The State of Western Australia [2020] WASCA 22 [163] - [164]; The State of Western Australia v Jacoby [2020] WASCA 150 [65].

2. I have before me the material necessary to enable me to resentence the appellant. 

Sentencing principles to be applied in resentencing the appellant

1. The ISO was cancelled by the magistrate.  It is no longer in force.  Accordingly, and as is accepted by both parties, in resentencing the appellant I do not have the option of confirming or amending the ISO pursuant to s 130(1)(a)(i) and s 130(1)(a)(ii) respectively of the Sentencing Act. Rather, the position, as provided for by s 130(1)(b) of the Sentencing Act, is that I am able to sentence the appellant for the offences in any manner that I could sentence him if he had just been convicted of the offences.

2. In resentencing the appellant pursuant to s 130(1)(b) I must exercise the sentencing discretion in accordance with the principles embodied in div 1 of pt 2 of the Sentencing Act.[86]  These principles, so far as is relevant in the present context, may be stated in brief terms as follows.

   [86] The totality principle, which is acknowledged in s 6(3)(b) of the Sentencing Act, is not, for reasons that are apparent from my below expressed conclusions, relevant to the sentencing of the appellant.

3. A sentence imposed on an offender must be commensurate with the seriousness of the offence.[87]  In determining the seriousness of an offence the court is required to take into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors.[88]  Aggravating factors are factors that in the court's opinion increase the offender's culpability or moral blameworthiness.[89]  Mitigating factors are factors that in the court's opinion decrease the offender's culpability or decrease the extent to which the offender should be punished.[90]

   [87] Sentencing Act s 6(1).

   [88] Sentencing Act, s 6 (2).

   [89] Sentencing Act, s 7(1).

   [90] Sentencing Act, s 8(1).

4. In sentencing an offender the court must not impose a term of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires a sentence of imprisonment.[91]

   [91] Sentencing Act, s 6(4).

5. If the court reaches the conclusion that a sentence of imprisonment (as opposed to a sentence of immediate imprisonment) of not more than five years is the only appropriate disposition, the court must then consider whether or not that sentence of imprisonment should be suspended or whether a sentence of imprisonment to be immediately served is required.[92]  The court must, as I have already stated in dealing with ground 4, be positively satisfied that the option of suspending imprisonment is not appropriate before it can impose a term of immediate imprisonment.  In order to decide if the term of imprisonment imposed can be suspended the court must revisit the factors that it has taken into account in determining that a term of imprisonment is the only appropriate disposition.

   [92] Sentencing Act, s 39(3), s 76(1), s 76(2), s 81(1) and s 81(2); Dinsdale v The Queen [77] - [79]; Mason v The State of Western Australia [48] - [54].

6. Finally, in resentencing the appellant I am entitled to have regard to any relevant matter that has occurred between when the appellant was convicted and the date of the resentencing.[93]

Appellant's application to adduce additional evidence

[93] CAA, s 14(5).

1. During the hearing of the appeal the appellant applied pursuant to s 40(1)(e) of the CAA to admit into evidence on the appeal a letter written by Mr Phillip James Doel of Doel's Consultancy & Tiling Services addressed to 'To whom it may concern' dated 20 February 2023.  The appellant made the application in light of s 14(5) of the CAA and on the basis that the contents of the letter would be relevant to any resentencing of the appellant in the event that I found that any of the alleged material errors the subject of the grounds of appeal had been made out.  The application was not opposed by the respondent.

2. In his letter Mr Doel confirms that the appellant has previously worked for him on a casual basis demolishing bathrooms and preparing them for tiling works, that he has found the appellant to be a motivated and conscientious worker, and that he has informed the appellant that he is 'welcome to a full-time position once he is able to commit without any fiduciary hindrances'.

3. At the hearing of the appeal I formed the view that the contents of Mr Doel's letter would be relevant to any resentencing of the appellant in the event that I found any of the alleged material errors established.  I therefore allowed the application to admit the letter as evidence on the appeal.[94] 

Respondent's application to adduce additional evidence on the appeal

[94] Exhibit 1.

1. During the hearing of the appeal the respondent applied pursuant to s 40(1)(e) of the CAA to admit into evidence on the appeal an email from Ms Suzette Oppert, Acting Team Leader, ACC to the respondent's counsel dated 20 February 2023.  The respondent made the application in light of s 14(5) of the CAA and on the basis that the contents of the email would be relevant to any resentencing of the appellant in the event that I found that any of the alleged material errors the subject of the grounds of appeal had been made out.  The application was not opposed by the appellant.

2. Ms Oppert's email outlines the performance of the appellant since he was, on 31 October 2022, granted bail by a judge of this court pending the determination of his appeal.  One of the conditions of bail set by the judge was that the appellant attend urinalysis testing as directed by ACC and that any positive urinalysis test to illicit substances was to constitute a breach of his bail.  The condition was actually imposed at the instigation of the appellant and with the agreement of the respondent.[95]

   [95] ts 2 - 4 and 6 - 7, 31 October 2022.

3. Ms Oppert's email reveals that during the period 1 November 2022 - 14 February 2023 the appellant has undertaken urinalysis tests on 12 occasions, that on two of these occasions (10 November 2022 and 30 January 2023) he has tested positive to methylamphetamine and that on one of these occasions the result was void due to the sample being unsuitable for reliable testing (30 November 2022).  The email also reveals that despite the two positive test results constituting a breach of the appellant's bail conditions the respondent decided not to proceed with breach action.

4. At the hearing of the appeal I formed the view that the contents of Ms Oppert's email would be relevant to any resentencing of the appellant in the event that I found any of the alleged material errors established.  I therefore allowed the application to admit the email as evidence on the appeal. 

Parties' submissions - summary

1. During the hearing of the appeal the appellant's counsel submitted that taking into account all relevant sentencing considerations, including what has occurred since the appellant was sentenced to the immediate terms of imprisonment by the magistrate and the appellant's current personal circumstances, the appropriate sentence for each of the offences is a fine.[96]

   [96] ts 14 - 15, 21 February 2023.

1. During the hearing of the appeal the respondent's counsel did not seek to argue that on any resentencing of the appellant a fine would not be the appropriate sentence for the cultivation of cannabis offence.

2. As to the possession of cannabis with intent offence, the respondent's counsel submitted that a fine would not reflect the seriousness of the offence.[97]  The respondent's counsel further submitted that given the objective seriousness of the offence, the absence of any material mitigating factors save for the guilty plea, and the need for personal and general deterrence that only a term of immediate imprisonment was justified.[98] However, counsel made this submission before I raised with him, and consequently before he acknowledged, the above referred to issue that s 86 of the Sentencing Act gives rise to in the event that I sentence the appellant to something other than imprisonment for the cultivation of cannabis offence. Further, counsel (and this is not intended as a criticism) did not seek to revisit the issue of the appropriate sentence for the possession with intent offence after I had canvassed with him the implications of s 86.

   [97] ts 31, 21 February 2023.

   [98] ts 29, 21 February 2023.

Conclusion as to appropriate sentences

1. I have already addressed the considerations that are relevant to the determination of the sentences to be imposed on the appellant in dealing with ground 5 of the appeal.

Cultivation of cannabis offence

1. With respect to the appellant's offence of cultivating cannabis, having regard to the applicable sentencing principles and the considerations addressed in dealing with ground 5, and bearing in mind that the appellant spent approximately 6 months on the ISO before being sentenced by the magistrate for the offence, in my opinion the appropriate sentence is a fine of $750. 

Possession of cannabis with intent offence

1. I turn to the appellant's possession of cannabis with intent offence.

2. As is apparent from what I have already said in dealing with ground 5, by reason of s 86 of the Sentencing Act it is not open to me to sentence the appellant to 6 months (or less) imprisonment suspended for a specified period or to 6 months imprisonment (or less) conditionally suspended for a specified period. The effect of s 86 is, in the circumstances of the appellant's case, that unless a sentence of at least six months and one day is appropriate in all the circumstances, imprisonment is not an available sentencing option.

3. As I have stated, the appellant had been on the ISO for approximately 6 months at the time that he was sentenced by the magistrate for his possession with intent offence.  On 31 October 2022, after spending 26 days in prison for the offences, he was granted bail by a judge of this court pending the determination of his appeal.  Accordingly, since first being sentenced for the offence by Magistrate Tyers the appellant has been in the community for approximately 10 months during which time he has been convicted of only the two relatively minor offences of which he was convicted by the magistrate on 6 October 2022.  Importantly, he has not, despite the fact that he is obviously still struggling with his drug addiction as is apparent from Ms Oppert's email, committed any further offences involving the sale or supply of prohibited drugs.

4. The appellant, I was told from the bar table without objection, now has secure accommodation.  He has full time employment available to him. 

5. Having regard to the applicable sentencing principles, the sentencing considerations that I referred to in dealing with ground 5, the period (albeit relatively brief) that the appellant spent in custody for the offences after being sentenced by the magistrate, the appellant's behaviour in the community since being placed on the ISO, and the appellant's current circumstances including the availability of employment to him I am not satisfied that only imprisonment can be justified or that the protection of the community requires a sentence of imprisonment.  Nor, however, am I satisfied that the imposition of a fine of a magnitude that the appellant would be able to pay would be commensurate with the seriousness of the offence. 

6. In my opinion the appropriate sentence for the offence is a 6-month community based order with a supervision requirement.  I consider that the imposition of a 6-month community based order at this point in time is the sentence that is commensurate with the seriousness of the offence.  I also consider that in the particular circumstances of the appellant's case the imposition of a community based order gives sufficient effect to the sentencing considerations of personal and general deterrence.

7. I note that in deciding that a community based order is the appropriate sentence I have taken into account the appellant's response to supervision while subject to the ISO.  The respondent's behaviour while on the ISO indicates, in my view, that he no longer requires the more intensive form of supervision in the community that comes with an intensive supervision order as opposed to a community based order.  Of course, the imposition of a community based order with a supervision requirement will ensure that the appellant is still subject to regular monitoring in the community as well as an appropriate amount of counselling which should reduce the risk of him committing any further serious offences and facilitate his rehabilitation.[99] 

   [99] Sentencing Act, s 65(1).

8. I have deliberately refrained from imposing as part of the community based order a programme requirement.[100]  Given the amount of drug rehabilitation intervention that the appellant has already engaged in and the limited benefit that he appeared to be deriving from his engagement with South West Drug and Alcohol Service after he had been placed on the ISO, I consider that to impose a programme requirement with the result that the appellant could be directed to undergo further substance use treatment is unlikely to advance the appellant's prospects of rehabilitation and may ultimately, in the particular circumstances of the appellant's case, in fact prove to be counterproductive.

   [100] Sentencing Act, s 64 and s 66.

9. I have given consideration to imposing as part of the community based order a community service requirement, that is, a requirement that the appellant perform some unpaid community service work.[101]  However, given that to impose such a requirement may impact adversely on the appellant's ability (and perhaps also motivation) to make himself available for work with Mr Doel as and when required by Mr Doel, I have decided not to do so.  I am conscious of the fact that if the appellant can resume and maintain steady employment his prospects of rehabilitation are likely to be substantially increased.

   [101] Sentencing Act, s 64 and s 67.

10. If the appellant breaches the community based order or breaches the supervision requirement of the order he will be liable to be brought back to this court to be re‑sentenced for the offence.  At that time all sentencing options will be open including a term of imprisonment.

Orders

1. For the reasons I have stated I make orders in the following terms:

   1.The application for leave to appeal on ground 3 is refused;

   2.The application for leave to appeal on grounds 1, 2, 4 and 5 is allowed;

   3.The appeal is allowed;

   4.The sentences of immediate imprisonment imposed by Magistrate Andretich on 6 October 2022 for the offences the subject of BU 2963/2021 and BU 2967/2021 are set aside;

   5.The appellant is sentenced for the offence the subject of charge BU 2963/2021 to a fine of $750; and

   6.The appellant is sentenced for the offence the subject of BU 2967/2021 to a community based order for a period of 6 months with a supervision requirement.

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

CP

Associate to the Honourable Justice Derrick

3 MARCH 2023