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

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: GOODWIN -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 184

CORAM: BUSS P
MAZZA JA

HEARD: 5 OCTOBER 2017

DELIVERED : 12 OCTOBER 2017

FILE NO/S: CACR 37 of 2017

BETWEEN: THOMAS JOHN GOODWIN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :PETRUSA DCJ
File No  :IND 939 of 2016

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted on his pleas of guilty of 26 counts of drug related offending - Total effective sentence of 2 years 6 months' immediate imprisonment - Whether the sentencing judge failed properly to take into account time the appellant had spent in immigration detention after he was charged and before he was sentenced

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(c)
Sentencing Act 1995 (WA), s 87

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: Director of Public Prosecutions (WA)

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

Apkarian v The State of Western Australia [2015] WASCA 67
Baghdadi v The State of Western Australia [2011] WASCA 38
Dias v The State of Western Australia [2017] WASCA 49
Le v The State of Western Australia [2014] WASCA 120
Moreton v The State of Western Australia [2011] WASCA 258
O'Brien v The State of Western Australia [2016] WASCA 23; (2015) 306 FLR 372
The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198
The State of Western Australia v Charles [2016] WASCA 108
The State of Western Australia v Littlefair [2013] WASCA 177
The State of Western Australia v Reid [2012] WASCA 109
Truscott v The State of Western Australia [2016] WASCA 58

JUDGMENT OF THE COURT: The appellant has applied for leave to appeal against sentence.
On 4 November 2016, the appellant was convicted, on his pleas of guilty in the District Court before Petrusa DCJ, of 26 counts in an indictment.
Each of the counts, except for count 6, alleged that on a specified date between 27 July 2014 and 2 October 2014, in the Perth metropolitan area, the appellant offered to sell or supply a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA).
The offences occurred on 16 different days over a 69‑day period. During that period the appellant sent group text messages advertising the sale of methylamphetamine. The group messages were sent to groups of between 15 and 61 people. The appellant also communicated with 12 separate individuals about supplying them with methylamphetamine. The quantities involved were between 1 g and 1.73 g. There were also quantities of 0.1 g and 3.5 g.
The communications were intercepted by police officers who arranged for an undercover operative to meet the appellant and purchase 20 MDMA or ecstasy tablets from him. The sale of the ecstasy occurred on 8 August 2014. The undercover operative paid the appellant $600 for the tablets. That offending was the subject of count 6.
On 4 November 2016, the sentencing judge imposed individual sentences of immediate imprisonment for the individual counts ranging between 6 months and 16 months. Her Honour imposed a total effective sentence of 2 years 6 months' immediate imprisonment. The total effective sentence commenced on 4 November 2016, being the date of sentencing. A parole eligibility order was made.
The sole ground of appeal in the appellant's case alleges that her Honour 'did not properly take into account the time [the appellant] spent in remand custody before … sentence'.
The appellant does not challenge any of the sentencing judge's findings of fact.
Her Honour's findings of fact in her sentencing remarks were, relevantly, as follows.
The sentencing judge found that the appellant was an active street-level dealer, at the mid‑range, who was selling to end users. He had a considerable customer base. During the 69‑day period the appellant took anti‑detection measures by using four different telephone numbers.
Her Honour referred to the appellant's personal circumstances. He was aged 34 at the time of the offending and was 36 when sentenced. He was born in England and came to Australia in 2010. The appellant spent intermittent periods in Australia until about 2013. He was married in 2013 but subsequently the relationship broke down.
The appellant's short marriage was marred by substance abuse. The appellant became addicted to methylamphetamine. Defence counsel told the sentencing judge that the appellant had not used illicit drugs after being taken into immigration detention.
Her Honour noted that the appellant's overall rehabilitation would be enhanced if he returned to England. His father, who resides in England, has offered him employment and he has prospects of stable accommodation in England with a supportive friend.
The appellant had a prior criminal record for offences including reckless driving, breach of a violence restraining order and possession of a prohibited drug. Accordingly, he was not a person of prior good character for sentencing purposes.
The information before the sentencing judge included a pre‑sentence report. It was apparent to her Honour that, although the appellant had pleaded guilty, he had not fully accepted responsibility for his offending. The pleas of guilty were entered after numerous adjournments and delays.
Her Honour allowed a discount of 14%, pursuant to s 9AA of Sentencing Act 1995 (WA), on the head sentence she would otherwise have imposed for each offence.
The sentencing judge noted that, upon being arrested and charged with the counts in the indictment, the appellant was placed in immigration detention. Since 25 August 2015 he had been held continuously in various detention centres. During his period in detention he had been assaulted more than once and had suffered significant injuries. Some of the injuries will require ongoing surgery. Her Honour took into account, as a mitigating factor, that the appellant's time in immigration detention had been difficult and more onerous than is ordinarily the case.
Although the appellant was taken into immigration detention on 25 August 2015, a criminal justice stay certificate was not issued until 3 November 2015. The appellant has not made an application for a criminal justice visa.
Her Honour gave consideration as to how she should take into account the time the appellant had spent in immigration detention. She said:
I have considered whether any sentence I ultimately impose on you should be backdated, and given that there is some uncertainty around exactly how much that can be done, what I propose to do, Mr Goodwin, is I will reduce any sentence I would otherwise have imposed to take into account the time that you have been in immigration detention and I will do that to a significant extent given that your time has been a difficult one (ts 52).
The sentencing judge then imposed the individual sentences and the total effective sentence that we have mentioned.
The maximum penalty for each of the offences committed by the appellant is 25 years' imprisonment or a fine of $100,000 or both.
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence.
The sentencing pattern in relation to cases with at least some features comparable to the appellant's are apparent from the decisions of this court in Baghdadi v The State of Western Australia [2011] WASCA 38; Moreton v The State of Western Australia [2011] WASCA 258; The State of Western Australia v Reid [2012] WASCA 109; The State of Western Australia v Littlefair [2013] WASCA 177; Le v The State of Western Australia [2014] WASCA 120; The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198; Apkarian v The State of Western Australia [2015] WASCA 67; Truscott v The State of Western Australia [2016] WASCA 58; The State of Western Australia v Charles [2016] WASCA 108; Dias v The State of Western Australia [2017] WASCA 49; and the drug dealing cases referred to in those decisions.
Section 87 of the Sentencing Act sets out the means by which a sentence can be reduced or backdated where the court has determined, in the exercise of its non‑statutory power and as contemplated by s 87(b), that it will take into account, when sentencing an offender, time spent in custody on remand.
The proper construction of s 87 of the Sentencing Act, and the possible application of that provision in the context of an offender who has spent time in immigration detention before sentence, were considered by this court in O'Brien v The State of Western Australia [2016] WASCA 23; (2015) 306 FLR 372. It is unnecessary to repeat what was written on that occasion.
It is sufficient to note that:
(a)Section 87 of the Sentencing Act is not the source of the court's power (which it has long had) to take into account, if appropriate, when sentencing an offender, time spent in custody on remand.
(b)Section 87 is facilitative and was not intended to limit the court's non‑statutory power to take into account, if appropriate, when sentencing an offender, time spent in custody on remand.
(c)The court always has a discretion, when considering time spent in custody, to decide whether it will make an allowance for that time and, if so, how much of an allowance it will make.
(d)In the present case, her Honour was entitled to recognise and give credit for the time the appellant had spent in immigration detention by reducing the length of the individual sentences and the total effective sentence she would otherwise have imposed.
(e)If her Honour was empowered to backdate the total effective sentence pursuant to s 87 (a point that is unnecessary to decide), her Honour did not make an error of fact or law by recognising and giving credit for the time the appellant had spent in immigration detention in the manner that she did, rather than backdating the total effective sentence.
We are satisfied that each individual sentence imposed on the appellant was appropriate having regard to the maximum penalty for the offence, the objective seriousness of the offence, the standards of sentencing customarily observed with respect to the offence, the place which the appellant's criminal conduct occupies on the scale of seriousness of offences of the kind in question, the appellant's personal circumstances and all other relevant sentencing factors, including the appellant's plea of guilty, the time he had spent in immigration detention, the difficulties he experienced while in detention and the other matters of mitigation mentioned by her Honour.
In our opinion, the total effective sentence imposed on the appellant and the commencement date for the total effective sentence were appropriate having regard to the maximum penalties for the offences, the overall criminality involved in all of the offences viewed in their entirety, the sentencing pattern in relation to broadly comparable cases, the appellant's personal circumstances and all other relevant sentencing factors, including the appellant's pleas of guilty, the time he had spent in immigration detention, the difficulties he experienced while in detention and the other matters of mitigation mentioned by her Honour.
The sole ground of appeal does not have a reasonable prospect of success. Leave to appeal is refused and the appeal is dismissed.