Higgins v Robinson
[2000] WASCA 311
•26 OCTOBER 2000
HIGGINS -v- ROBINSON [2000] WASCA 311
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 311 | |
| Case No: | SJA:1108/2000 | 11 OCTOBER 2000 | |
| Coram: | SCOTT J | 26/10/00 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Suspended term of imprisonment substituted for term to be served immediately | ||
| PDF Version |
| Parties: | ADRIAN PAUL JOHN HIGGINS EDWARD GEORGE ROBINSON |
Catchwords: | Criminal law and procedure Summary conviction Sentence for possession with intent to sell ecstasy and amphetamine No pre-sentence report ordered Relatively young offender Turns on own facts |
Legislation: | Misuse of Drugs Act 1981, s 6(1)(a), s 6(2) Sentencing Act 1995, Part 2 s 76, s 77, s 78, s 79, s 80, |
Case References: | Lowndes v The Queen (1999) 195 CLR 665 R v Grein [1989] WAR 178 R v Liddington (1997) 18 WAR 394 R v Thomson & Owen (1998) 105 A Crim R 150 Keatley v R [2000] WASCA 30 R v Ruich [2000] WASCA 84 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : HIGGINS -v- ROBINSON [2000] WASCA 311 CORAM : SCOTT J HEARD : 11 OCTOBER 2000 DELIVERED : 26 OCTOBER 2000 FILE NO/S : SJA 1108 of 2000 BETWEEN : ADRIAN PAUL JOHN HIGGINS
- Appellant
AND
EDWARD GEORGE ROBINSON
Respondent
Catchwords:
Criminal law and procedure - Summary conviction - Sentence for possession with intent to sell ecstasy and amphetamine - No pre-sentence report ordered - Relatively young offender - Turns on own facts
Legislation:
Misuse of Drugs Act 1981, s 6(1)(a), s 6(2)
Sentencing Act 1995, Part 2 s 76, s 77, s 78, s 79, s 80,
Result:
Suspended term of imprisonment substituted for term to be served immediately
(Page 2)
Representation:
Counsel:
Appellant : Mr D P A Moen
Respondent : Mr R J Daily
Solicitors:
Appellant : Lewis Blyth & Hooper
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Lowndes v The Queen (1999) 195 CLR 665
R v Grein [1989] WAR 178
R v Liddington (1997) 18 WAR 394
R v Thomson & Owen (1998) 105 A Crim R 150
Case(s) also cited:
Keatley v R [2000] WASCA 30
R v Ruich [2000] WASCA 84
(Page 3)
1 SCOTT J: The appellant was convicted in the Court of Petty Sessions at Perth on 23 June 2000 of two charges of possession of drugs with intent to sell or supply contrary to s 6(1)(a) and one count of possessing a prohibited drug contrary to s 6(2) of the Misuse of Drugs Act 1981 ("the Misuse of Drugs Act"). It is common ground that the appellant pleaded guilty to those offences and that on 23 June 2000 he was sentenced to a term of 12 months' imprisonment on each of the first two charges and 1 month's imprisonment on the third charge. The sentences were ordered to be served concurrently, making a total term of 12 months' imprisonment and a parole order was made on the sentences. In addition, the appellant was ordered to forfeit the sum of $1,480 found in his possession and which was said to be the proceeds of the sale of prohibited drugs.
2 The appellant was granted leave to appeal by Wallwork J on 3 July 2000 and was released on bail after having served 13 days' imprisonment on 5 July 2000.
3 The facts giving rise to the charges as outlined by the prosecutor at the hearing on 23 June were:
"At 12.25 am Monday, the 5th of June the defendant and three others were located in a parked car … Perth. The police spoke to the defendant due to his suspicious actions. As a result of further inquiries the defendant was searched. Located in his pocket was a matchbox which was found to contain 10 tablets of MDMA which is ecstasy. Also located was a single tablet of MDMA in his jacket pocket. A further three tablets of the same drug were located in a plastic bag in another pocket. The total weight of the tablets, sir, was 3.9 grams. Located in his pocket was a plastic bag containing three small bags, each containing white powder, approximately 0.4 grams of amphetamine powder. A separate plastic bag was found to contain five further plastic bags each of brown powder which was found to be approximately 0.6 grams of amphetamine powder. A plastic bag containing 0.3 grams of amphetamine powder was located in a tin in his bag. The total weight of amphetamine was 1.3 grams."
4 The appellant was also found to have possession of $1,480, which the learned Magistrate ordered to be forfeited.
(Page 4)
5 As the facts were unfolded, it became evident that the appellant was involved with what are commonly called "rave" parties and that his involvement with ecstasy and amphetamine arose out of that involvement.
6 The appellant had been convicted on 4 April 2000 of possession of MDMA (ecstasy) with intent and had been fined $750. These offences therefore occurred almost exactly two months after the fine of $750 was imposed.
7 At the date of sentencing, the appellant was aged 21 years and was a student at TAFE. He pleaded guilty at the earliest opportunity and in mitigation indicated that he was prepared to undergo rehabilitation.
8 Since the time of sentencing, the appellant has attended counselling at Holyoake, an institute for treatment of alcohol and addiction, and reports in the appeal book, which were not available to his Worship, indicate that the appellant has attended a number of sessions at that institution to assist with his rehabilitation in relation to his involvement with drugs. The court has three reports; two from Holyoake dated 11 July 2000 and 26 September 2000 and a psychological report from Robyn Marschner, undated, all of which are extremely positive as to the appellant's involvement in the rehabilitation process and his attitude towards addressing his substance abuse problems.
9 Whilst it is not a requirement, this is a case where, in my view, the learned Magistrate may have profited from a pre-sentence report had one been ordered. The reports available to this Court were not available to the learned Magistrate.
10 In sentencing the appellant, the learned Magistrate said, after referring to the earlier fines imposed upon the appellant, to which I have referred in these reasons:
"And I wonder what was said to the judge before - the magistrate previously. 'No, he's not going to do it. He fell in with bad company, Sir. He's got his future he's got to sort out', and all that sort of thing. And you're at it again. It's just too easy to do, and the court gets the impression that the fines like that, you just write that off to costs. Obviously it's not so great that it has deterred you from using it.
And the other factor that the court has in mind is that we shouldn't encourage the attitude that you can go on doing these sort of things until you get caught, and then you can plead
(Page 5)
- leniency and have some inconsequential sanction provided. That's the message we're sending to anyone, and anyone who supplies these drugs to people should know that they - - in fact it's the certainty of imprisonment that's the deterrent; not the possibility of imprisonment.
But given particularly the nature of these drugs and the damage they cause - and we have the effects of it through court, particularly amphetamines, where people just go completely off their heads and do unspeakable violence to other people and go psychotic, that sort of thing - and I can only see that a sentence of imprisonment is the only reasonable sanction in the matter.
I don't think that the sentence should be suspended. You've had your opportunities of rehabilitating yourself, and you can do the four months' imprisonment and then you can spend the next period of parole where you can get yourself back on track where you were before."
11 The grounds of appeal are:
"(a) the learned Magistrate failed to give sufficient consideration to the fundamental principles embodied in the Sentencing Act (WA) s 6, and to the imposition of a non-custodial sentence, having regard to:
(i) the nature of the offence and circumstances thereof;
(ii) the Applicant's youth and lack of any significant record;
(iii) the Applicant's antecedents and circumstances personal to the Applicant;
(iv) the fact that the Applicant pleaded guilty at the earliest available opportunity;
(v) the fact that the Applicant showed signs of remorse and rehabilitation;
(vi) the fact that the Applicant had never previously been on either a Community Based Order or an Intensive Supervision Order;
(Page 6)
- (b) the learned Magistrate failed in the exercise of his sentencing discretion to consider the principles embodied in the Sentencing Act (WA) s 76, in that if he reached the view that imprisonment was the only option then it was clearly a case for suspending such imprisonment;
(c) the learned Magistrate failed to provide reasons as to why no other form of punishment or disposition was appropriate."
12 As the submissions were developed by counsel for the appellant, it was revealed that the appellant had a total of 3.9 grams of MDMA (ecstasy) which is 0.1 gram less than the quantity that gave jurisdiction to a Court of Petty Sessions (see item 82B Schedule 3 to the Misuse of Drugs Act). It follows that the quantity of MDMA was right at the maximum falling within the jurisdiction of the Court of Petty Sessions.
13 The penalty in relation to an indictable offence triable summarily in the Court of Petty Sessions is a fine not exceeding $5,000 or imprisonment for a term not exceeding 4 years or both (s 34(2)(b) of the Misuse of Drugs Act).
14 Counsel for the appellant contended that the appellant had not reached the stage where a term of imprisonment, not suspended, was the only appropriate sentencing disposition, notwithstanding the fact that the appellant had been fined for similar conduct approximately two months before these offences were committed. It was contended that the appellant had taken significant steps towards his own rehabilitation, particularly in relation to his attendance at Holyoake and was furthering his tertiary education. In addition it was said that he pleaded guilty at the earliest opportunity and that it was only his involvement with a group of undesirable associates and the "rave" culture that led him into his drug involvement. It was also contended that the appellant had sold drugs to service his own habit and was not involved in the commercial trafficking of illicit drugs.
15 In dealing with an appeal such as this, it is important for the court to apply the principle that it is not for an appellate court to substitute its own opinion for that of the sentencing Magistrate, merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Magistrate exercised his discretion
(Page 7)
- (Lowndes v The Queen (1999) 195 CLR 665 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ at 672.)
16 The question on appeal is whether the sentence imposed by the learned Magistrate was in error by reason of his acting on a wrong principle, or in misunderstanding, or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing Magistrate said in the proceedings, or such sentence itself may be so excessive or inadequate as to manifest such error: R v Grein [1989] WAR 178 per Malcolm CJ at 179-180.
17 In this case, the relative youth of the appellant was a significant factor in mitigation. The appellant was not a juvenile but a young man at the start of his adult life. Not only was he involved in tertiary education but he accepted the error of his ways and had taken steps towards his own rehabilitation. In my opinion, the learned sentencing Magistrate should have given greater weight to the youth of the appellant and his attitude towards his own rehabilitation. In this case they were important mitigating factors. The appellant's youth alone was a factor which could have alerted the learned Magistrate to the value of a pre-sentence report, which would have revealed in greater detail the appellant's attitude towards his rehabilitation and the steps he was prepared to take of his own volition to achieve that end. In a case such as this, it is regrettable that such a step was not taken.
18 Taking all of those factors into account, in my view, the appropriate course is for the balance of the prison term imposed upon the appellant to be suspended for a term of 2 years, thus providing a significant incentive to the appellant to remain away from involvement with illicit drugs: R v Liddington (1997) 18 WAR 394 per Malcolm CJ at 398; R v Thomson & Owen (1998) 105 A Crim R 150 in the Judgment of the Court at 166.
19 For these reasons I would order that the appeal be allowed and the balance of the prison term imposed upon the appellant be suspended for a period of 2 years from the date of judgment on this appeal. Regrettably it is not possible for the court to place conditions upon a suspended term of imprisonment under Part 2 s 76 to s 80 of the Sentencing Act 1995. Had I the power to do so, I would have made it a condition of the suspended term of imprisonment that the appellant continue with his drug rehabilitation program. In the circumstances, however, it would appear that the appellant is voluntarily prepared to continue with that course.
(Page 8)
20 The suspended term of imprisonment will be sufficient incentive for the appellant to continue treatment. Should the appellant lapse into his former ways, a substantial term of imprisonment will be almost inevitable.
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