May v The State of Western Australia - [2019] WASCA 92

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MAY -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 92
CORAM:   BUSS P
MAZZA JA
PRITCHARD JA

HEARD:   20 FEBRUARY 2019
DELIVERED          :   20 FEBRUARY 2019
PUBLISHED           :   1 JULY 2019
FILE NO/S:   CACR 15 of 2019
BETWEEN:   MATTHEW ROBIN MAY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   HERRON DCJ
File Number            :   IND 1909 of 2017

Catchwords:

Criminal law - Appeal against sentence - Attempted possession of a prohibited drug with intent to sell or supply it to another - Cocaine - Agreed purchase of 14 g for $5,000 - Alleged express error - Whether judge erred in finding of fact - Alleged implied error - Manifest excess

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(c), s 33(1)
Sentencing Act 1995 (WA), s 6, s 9AA, s 39

Result:

Leave to appeal on ground 1 refused
Leave to appeal on ground 2 granted
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	M R Barone SC & G C R Yin
Respondent	:	L M Fox

Solicitors:

Appellant	:	D G Price & Co
Respondent	:	Director of Public Prosecutions (WA)

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

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fenton v The State of Western Australia [2015] WASCA 255
HNA v The State of Western Australia [2016] WASCA 165
The State of Western Australia v Egeland [2018] WASCA 228
Wilson v The State of Western Australia [2010] WASCA 82

REASONS OF THE COURT:

On 20 February 2019, this court made the following orders in respect of the appellant's appeal against sentence:
(1)Leave to appeal on ground 1 refused.
(2)Leave to appeal on ground 2 granted.
(3)Appeal dismissed.
The court said that it would publish its reasons at a later date. These are our reasons.

Background

Cameron Blake Fredrickson and the appellant were charged in the District Court on IND 1909 of 2017 as follows:
(1)On 11 November 2016 at a Commonwealth place, namely Perth Airport, [Mr Fredrickson] had in his possession a prohibited drug, namely cocaine, with intent to sell or supply it to another.
(2)Between 4 November 2016 and 11 November 2016 at Kalgoorlie [the appellant] attempted to possess a prohibited drug, namely cocaine, with intent to sell or supply it to another.
Count 2 is an offence contrary to s 6(1)(c), read with s 33(1), of the Misuse of Drugs Act 1981 (WA). The maximum penalty for the offence is 25 years' imprisonment and/or a fine of $100,000.
The appellant, at what the sentencing judge described as a 'relatively late [stage] in the proceedings',[1] pleaded guilty to count 2. On 17 December 2018, he was sentenced to 15 months' immediate imprisonment with eligibility for parole.
[1] ts 135.
The appellant filed, within time, his notice of appeal. On 25 January 2019, an urgent appeal order was made.[2]
[2] Order of Buss P, 25 January 2019, WAB 4.
The appellant relied upon two grounds of appeal. Ground 1 alleged that the sentence imposed was manifestly excessive. Ground 2 alleged that the learned sentencing judge made a material express error of fact.
Before considering the grounds of appeal, we will set out the facts of the offending, the appellant's personal circumstances and the salient features of the sentencing remarks. Save for the factual issue the subject of ground 2, there was no disagreement in this court about the facts of the offending, which may be summarised in this way.
On 3 November 2016, Mr Fredrickson contacted the appellant regarding the purchase of a quantity of cocaine. Mr Fredrickson sent to the appellant an iMessage in these terms:[3]
I found something of interest you might like. In fact I guarantee you will like it. It's 10K [$10,000] and I fly back on Sun [Sunday]. If that's of interest let me know and I can send a bank account for you to dump some money in. I can't cover it but happy to gather and bring back. Seen nothing like this since early dimmo [sic] days.
[3] ts 105 - 106.
On 4 November 2016, the appellant telephoned Mr Fredrickson and requested that he send an email to the appellant with his bank account details.[4]
[4] ts 106.
On 5 November 2016, Mr Fredrickson sent to the appellant an iMessage with his bank account details. Mr Fredrickson also wrote:[5]
Throw 10K in there, chief, and you will be very pleasantly surprised when I see you next. It's been a few years since I've seen this.
[5] ts 106.
On 7 November 2016, the appellant transferred $6,000 into a bank account used by Mr Fredrickson and a further sum of $4,000 into a bank account controlled by Mr Fredrickson's wife.[6]
[6] ts 106.
On 11 November 2016, Mr Fredrickson flew from Melbourne to Perth. Shortly after disembarking the aircraft at Perth airport, he was arrested by detectives. At the time, he was in company with his wife. Mr Fredrickson was searched and police officers found, in a backpack, 82.1 g of cocaine wrapped in three separate packages. One of the packages was labelled 'MB'. On later analysis, that package was found to contain 27.8 g of cocaine with a purity of approximately 54%.[7]
[7] ts 106.
For the purposes of the appellant's sentencing, it was accepted that, of the cocaine contained in the package labelled 'MB', the appellant attempted to possess 14 g of it at a cost of $5,000. The balance of the package was to be provided by Mr Fredrickson to a third person whose initial was B. We will refer to him by that initial. The State accepted, and the appellant was sentenced on the basis, that the appellant did not want to buy the entire approximately 28 g of cocaine contained in the package with the initials 'MB' on it.[8]
[8] ts 107.
As for the $10,000 the appellant paid Mr Fredrickson, $5,000 was for the 14 g of cocaine the appellant attempted to possess and the remaining $5,000 was, in effect, money paid by the appellant on behalf of B for the remaining quantity of cocaine in the package. That cocaine was to be delivered to B by Mr Fredrickson. It was not contemplated that the appellant would have possession of this cocaine. The intention was that B would later repay to the appellant the sum of $5,000.[9]
[9] ts 107.
It was also accepted by the State, and the appellant was sentenced on the basis, that of the 14 g of cocaine the appellant attempted to possess, he intended to use some of the drug himself (the appellant being a user of cocaine) and to supply some to a close circle of his friends who also used the drug. The appellant did not intend to distribute the cocaine into the wider community, nor did he intend to commercially profit from its sale.[10]
[10] ts 134.

The appellant's personal circumstances

The appellant was 42 years of age at the time he was sentenced. He was married in 1988, but separated from his wife in about 2013. The appellant and his wife have four children aged between 13 and 19. At the time he was sentenced, the appellant was the primary carer for his three younger children. His eldest child had left home and is living in a country town.[11]
[11] ts 135.
After the appellant separated from his wife he commenced another relationship, but that relationship broke down in September 2018.[12]
[12] ts 135.
The appellant was born and raised in New Zealand. He moved to Australia in 1988 and commenced working in the drilling industry. The appellant has an excellent work history. In 2004, he started his own drilling business which has been successful and which has enabled the appellant to accumulate significant assets. The business now employs 50 to 60 employees and contractors.[13]
[13] ts 136.
The appellant has what his Honour described as 'a relatively minor criminal and road traffic record'.[14] A large number of character references were tendered to the sentencing judge which attested to his commitment to his children, the success of his business and his positive contributions to the local community in Kalgoorlie.[15]
[14] ts 136.
[15] ts 137.
The appellant is in good physical and mental health, apart from the understandable stress and anxiety associated with the current proceedings.[16]
[16] ts 136.
The appellant started using cocaine in about 2010. He estimated that he had used cocaine on about 20 occasions, on social occasions such as parties, up until the time of his offending.[17]
[17] ts 136.

Salient features of the sentencing remarks

His Honour said that the appellant's offending was to be viewed in the context of, and against a background of, having access to and being involved in the use and distribution of cocaine to a small group of friends on repeated occasions over an extended period of time over a number of years.[18] This finding is challenged by ground 2. His Honour noted that the offending was to be viewed in the circumstances where the appellant assisted an acquaintance, B, to obtain cocaine from Mr Fredrickson by paying $5,000 on his behalf, with the expectation he would be repaid that sum, although the appellant was never to come into possession of the 14 g which Mr Fredrickson intended to supply to B.[19]
[18] ts 135.
[19] ts 135.
His Honour also noted that, although the appellant did not initiate the transaction with Mr Fredrickson, he displayed little hesitation when the opportunity was presented to him.[20]
[20] ts 135.
The learned sentencing judge took into account the appellant's late plea of guilty. His Honour gave a discount of 10% for the plea of guilty, pursuant to s 9AA of the Sentencing Act 1995 (WA).[21]
[21] See ts 135, 136, 139.
The sentencing judge accepted that:
1.the appellant had shown significant remorse for his offending and some insight into the seriousness of what he had done;[22]
2.the appellant led a generally law‑abiding and positive lifestyle;[23]
3.the appellant was at a 'very low risk of reoffending';[24] and
4.the need for personal deterrence was reduced.[25]
[22] ts 136.
[23] ts 136.
[24] ts 137.
[25] ts 137.
His Honour rejected a submission put on behalf of the appellant that imprisonment would cause exceptional hardship to his family.[26] The appellant did not take issue with this finding in the appeal.
[26] ts 138.
His Honour noted, consistently with the decisions of this court, that general deterrence was an important sentencing consideration in cases involving the trafficking of dangerous drugs.[27] He rejected submissions put on behalf of the appellant that the appellant should be sentenced to a suspended term of imprisonment. His Honour concluded that the circumstances of the appellant's offending were so serious that the only appropriate sentence was imprisonment. He then considered whether it was appropriate to suspend the term of imprisonment. His Honour concluded that the only appropriate sentence was a term of immediate imprisonment.[28] It is clear from the sentencing remarks that his Honour approached the question of whether it was appropriate to impose a term of suspended imprisonment having regard to the principles laid down by the High Court in Dinsdale v The Queen.[29] The appellant does not contend otherwise in this appeal.
[27] ts 137.
[28] ts 138 - 139.
[29] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.
Parity with Mr Fredrickson was not an issue before the sentencing judge, nor was it an issue in this court.

The grounds of appeal

As set out in the appellant's case, the grounds of appeal read:[30]
1.The sentence was, in all the circumstances, manifestly excessive particularly having regard to the place that the offending occupies on the scale of seriousness and the personal circumstances of the appellant.
2.The learned sentencing Judge erred in fact in finding that the appellant had previously distributed cocaine to a small circle of friends.
[30] WAB 6.
The question of whether leave to appeal should be granted on these grounds was referred to the hearing of the appeal.[31]
[31] Order 25 January 2019, par 2; WAB 4.

General principles applicable to this appeal

The general principles applicable to this appeal are well known and well established. We adopt, without repetition, the statement of general principles set out by this court in Wilson v The State of Western Australia.[32]
[32] Wilson v The State of Western Australia [2010] WASCA 82 [2].
It is convenient to deal with ground 2 first.

Ground 2 - did the sentencing judge err in finding that the appellant had previously distributed cocaine?

As we have already said, his Honour found that the present offending had to be viewed against a background of the appellant having access to and being involved in the use and distribution of cocaine to a small group of friends on repeated occasions over an extended period of time over a number of years. At a later point in his sentencing remarks, his Honour said, as a counterpoint to the appellant's positive contribution to the local community in Kalgoorlie:[33]
I make that observation notwithstanding that you were intending to and you have in the past distributed cocaine to a small circle of friends. (emphasis added)
[33] ts 137.
We accept that his Honour found, as a fact, that the appellant had, on prior occasions, supplied cocaine to a small circle of friends.
The appellant contended that this finding was erroneous. It was submitted on behalf of the appellant that no concession was made to the sentencing judge to this effect, and that it was never part of his case. Further, there was no evidence to support it.
On behalf of the respondent, it was submitted that the learned sentencing judge did not err as alleged. The respondent pointed to a number of things said by senior counsel who appeared for the appellant at first instance (but not in the appeal), which were said to justify his Honour's finding.
The first of these statements appears at ts 111, when senior counsel said:
[The appellant] decided to obtain it in bulk so that he could use it for himself, but had an intention to share it with other people in Kalgoorlie including his partner, who also were - and I don't like using the word, 'recreational' but who were people who had used cocaine in the past. (emphasis added)
Senior counsel then referred to text messages or iMessages from the appellant, which were in the prosecution brief, and which he said:[34]
show that there was between [the appellant] and friends and his partner a drug use - not culture, but they had used it irregularly, certainly on occasions when they were on holidays or in relaxation times. (emphasis added)
[34] ts 111.
Shortly after making this submission, the following exchange took place between the sentencing judge and senior counsel:[35]
HERRON DCJ: He's been involved in the distribution of an illicit drug that attracts very significant maximum penalties. He's been involved in the distribution of that drug into the community, I accept in a relatively small social circle, but nevertheless he's been instrumental in the distribution of that illicit drug and that in turn leads to other people being exposed to this drug.
VANDONGEN, MR: Well, not necessarily, because of the circumstances in which the distribution - this is why we say in our written submissions is a certain type of distribution. It's not handing it out willy‑nilly to people. It's in social settings at parties, this was around Christmas time.
He was intending to have people over to his house, would have shared it with people while they were in his house and these include probably the people who were going to source cannabis - sorry, not cannabis - cocaine from Mr Fredrickson. So they weren't going to then take the cocaine and give it someone else, they were going to use it with [the appellant].
HERRON DCJ: Yes.
VANDONGEN MR: So it's a very limited distribution. There is nothing whatsoever in the prosecution brief, and my instructions are quite firmly, never sold, never had an intention to sell or supply in a commercial sense. (emphasis added)
[35] ts 111.
We note that in the appellant's written submissions before the sentencing judge, the appellant made no express admission that he had on previous occasions supplied friends with cocaine. Rather, all that was said was that the appellant intended to use most of the cocaine he attempted to purchase from Mr Fredrickson himself, but admitted that he also intended to supply some of it to his partner and friends, who already had their own recreational drug habits and had supplied cocaine to him in the past, for their own use.[36] Senior counsel reiterated this point in his plea in mitigation.[37]
[36] Appellant's written submissions to the sentencing judge, par 3.1; WAB 78.
[37] ts 118.
The respondent pointed to further discourse between senior counsel and the sentencing judge at ts 128, when his Honour asked senior counsel for his submissions as to what, if anything, he could make of the fact that the appellant had paid $5,000 to Mr Fredrickson to enable B to obtain possession of 14 g of cocaine, to which senior counsel said:[38]
It can't be an aggravating factor because then your Honour would be sentencing him for an offence for which he has not been charged with. So it may be relevant if I had made a submission that his distribution was an isolated event, but I didn't make that submission. (emphasis added)
[38] ts 128.

Ground 2 - disposition

In our opinion, ground 2 has been established.
A finding that the appellant had, at some point in the period before the commission of the subject offence, supplied cocaine to others would have been relevant to show that the offending was not isolated or an aberration by a person who was generally of prior good character.
Apart from anything said by defence counsel, there was no evidence before the primary court capable of proving that, on some prior occasion, the appellant had supplied cocaine to others. For example, at first instance, the State did not point to any of the intercepted communications between the appellant and Mr Fredrickson to indicate that the appellant had supplied cocaine to others. There was no evidence of any of the usual indicia of drug dealing such as cash, tick lists, multiple mobile telephones, possession of weapons or special security measures. In his interview with the police, the appellant made no relevant admissions.
There is nothing in the written submissions provided to the sentencing judge in which the appellant admits that he had, on some previous occasion, supplied cocaine to others. Nor was anything said by senior counsel for the appellant in his plea in mitigation, capable of implying such conduct.
The statement made by senior counsel referred to at [38] of these reasons clearly refers to what the appellant intended to do with the quantity of cocaine that he attempted to obtain from Mr Fredrickson. It cannot reasonably be understood as referring to some other quantity of cocaine.
Defence counsel's reference to text messages as set out in [39] of these reasons refers to the past use of cocaine by the appellant and his friends and partner, but makes no reference to any supply by the appellant to those persons.
The exchange which is set out at [40] of these reasons is, at best for the State, ambiguous. It is not sufficiently clear to us that what is being discussed is prior instances of the appellant supplying cocaine to others, as opposed to the appellant intending to supply the cocaine he had purchased from Mr Fredrickson to those who were close to him for use in the upcoming period of Christmas.
There remains the statement of senior counsel quoted in [42] of these reasons. It may well be that senior counsel was treading carefully. Senior counsel, in effect, submitted to the sentencing judge that the fact that the appellant had paid $5,000 on behalf of B to Mr Fredrickson to enable B to obtain 14 g of cocaine was irrelevant. However, senior counsel acknowledged that it may have become relevant if he had made a submission that the offence committed by the appellant was an isolated event, but no submission to that effect had been made. The fact that senior counsel did not positively assert that the appellant's intended distribution of the cocaine he attempted to obtain from Mr Fredrickson was an isolated event cannot be recast as an admission that the appellant had distributed cocaine in the past.

It may well be, as the appellant postulated in his written submissions, that his Honour misapprehended the statement in the appellant's written sentencing submissions, to the effect that what the appellant intended to do with part of the cocaine he attempted to purchase from Mr Fredrickson was to supply it to his partner and friends who had, in the past, supplied him with cocaine. Whatever the cause of the error, in our respectful view there was no factual basis, either in the evidence or in the sentencing submissions made on behalf of the appellant, for the finding made by the learned sentencing judge that the appellant had, in the past, supplied cocaine to his partner and friends. It was not open to his Honour to find, as a fact, that the appellant had supplied cocaine to others in the past. The issue of the appellant's past actions was neutral.
In our opinion, his Honour's error was material and thus this court's discretion to resentence the appellant afresh has been enlivened. We will shortly address the question of the appellant's resentencing. Before doing so, we will briefly turn to ground 1.

Ground 1 - manifest excess

As ground 2 has been made out and this court must exercise afresh the sentencing discretion, it is unnecessary to decide whether the sentence of 15 months' immediate imprisonment was manifestly excessive. In saying this, it should not be assumed that had ground 2 not been made out, ground 1 would have succeeded.

Resentencing

This court has all of the materials necessary to exercise afresh the sentencing discretion. At the hearing of the appeal, senior counsel for the appellant did not seek to adduce any further evidence. She reminded the court that the appellant had already spent approximately two months in custody. Senior counsel urged the court to impose a suspended term of imprisonment of some kind (that is, with or without conditions, or a partially suspended term of imprisonment), or to impose a lesser term of immediate imprisonment. The respondent's position is that this court should impose no different sentence to that imposed in the court below.
As to the facts of the offending, the unchallenged findings of fact made by his Honour should be accepted. So, too, should his unchallenged findings as to the appellant's personal circumstances and the unchallenged aggravating and mitigating factors. The finding the subject of ground 2 must, of course, be disregarded. As for the appellant's plea of guilty, it was entered on the scheduled first day of the appellant's trial, and in the face of a strong State case, particularly when one has regard to the communications which flowed between the appellant and Mr Fredrickson between 3 and 7 November 2016.
The relevant principles which must be applied to the appellant's resentencing are well known and not in dispute.
Section 6 of the Sentencing Act requires that a sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of the appellant's offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors.
Section 6(4) of the Sentencing Act provides that 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 a sentence of imprisonment can be justified, or the protection of the community requires it.
The effect of s 39(3) of the Sentencing Act is that a court must not impose a sentence of immediate imprisonment unless satisfied that suspended imprisonment of any type is not an appropriate sentencing option. In deciding whether it is satisfied of that matter, the court must have regard to the sentencing principles in pt 2 div 1 (including s 6) of the Sentencing Act.
Section 39(3) of the Sentencing Act imposes a constraint on the court's sentencing discretion. The constraint is not discretionary. A court 'must not' use a sentencing option in s 39(2) unless satisfied that it is not appropriate to use any of the options listed before that option. Section 39(3) prohibits a court from imposing a sentence of immediate imprisonment unless the required state of satisfaction exists. Thus, before a sentencing judge can impose a sentence of immediate imprisonment, he or she must be positively satisfied that suspended imprisonment of any type is not an appropriate sentencing option.
In considering whether a suspended imprisonment order of any type is inappropriate, the provisions relating to those sentencing options must be considered. They are contained in pt 11 and pt 12 of the Sentencing Act. A term of imprisonment of five years or less may be suspended. A term of suspended imprisonment cannot be imposed unless terms of imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances. A term of suspended imprisonment cannot be imposed if the offence was committed when the offender was subject to an early release order, or if the offender is serving or is yet to serve a term of imprisonment that is not suspended. These matters did not apply in the appellant's case.
Considering what sentencing options are 'not appropriate' involves an evaluative judgment which is broad but not at large. The determination of what is 'not appropriate' must be reached by applying the relevant sentencing principles and considerations to all the circumstances of the offence and the offender.[39]
[39] See HNA v The State of Western Australia [2016] WASCA 165 [23] - [31].
Two distinct steps are involved in the decision to suspend a term of imprisonment. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided, and the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend the term. The imposition of a suspended term of imprisonment is not restricted to cases where such an order would enhance the offender's rehabilitation. What is required is attention to all the circumstances of the case. Such an approach permits attention to be given not only to the circumstances personal to the offender, but also to the objective features of the offence. These features may, in a particular case, outweigh considerations of rehabilitation and mercy. They may require that the prison sentence be served immediately, despite mitigating personal considerations.[40]
[40] Dinsdale [79] - [86] (Kirby J).
Cocaine is a dangerous drug in the same echelon as other drugs such as methylamphetamine, MDMA and heroin. The sentencing principles relating to the trafficking of drugs of this type are well established. They were recently restated by Mazza and Mitchell JJA in The State of Western Australia v Egeland:[41]
This court has, time and again, made it plain that, generally, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for serious drug offences. The incentives, financial and otherwise, to participate in the illicit drug distribution network must be counterbalanced by a clear and certain understanding that such involvement will ordinarily result in a penalty of immediate imprisonment. Accordingly, the imposition of a sentence other than immediate imprisonment for an offence of the kind under consideration in this appeal is, as a matter of fact, exceptional.
However, even if a term of immediate imprisonment is generally the appropriate penalty, a sentencing judge is not relieved of their obligation to determine the appropriate penalty in the particular case.
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs such as MDMA are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation, or generally, and whether the offending was committed for personal gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
[41] The State of Western Australia v Egeland [2018] WASCA 228 [140] ‑ [142].
In Fenton v The State of Western Australia,[42] McLure P (with whom Buss & Mazza JJA agreed) reaffirmed that ordinarily, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for offences contrary to s 6(1) of the Misuse of Drugs Act, even in the absence of commerciality. This is because the gravamen of such an offence is the distribution of these drugs which causes significant damage in and to our communities.[43]
[42] Fenton v The State of Western Australia [2015] WASCA 255.
[43] Fenton [18].
We have already referred to the maximum penalty for count 2. The appellant attempted to obtain 14 g of cocaine, which he understood was of good quality. While he did not initiate the transaction with Mr Fredrickson, he embraced it quickly, and with evident enthusiasm. Within a short period of time, he paid into the bank accounts of Mr Fredrickson and his partner a total sum of $10,000, $5,000 of which was to purchase 14 g of cocaine, with the balance being, in effect, a loan to B so that B could obtain possession of approximately 14 g of cocaine. Although the appellant is not to be sentenced for an offence he was not charged with, the fact that he was prepared to provide $5,000 for an associate to obtain a dangerous drug such as cocaine detracts from the appellant's status as a person who has made positive contributions to the community.
It is relevant that the appellant intended only to distribute part of the 14 g of cocaine he had agreed to purchase to a small group of friends who were fellow users of the drug, and that he had no commercial motive. Nevertheless, the appellant intended to distribute cocaine, an illicit and dangerous drug, to others. A distribution of this kind still puts at risk the health and wellbeing of those who are given the drug.
The appellant's offending is not mitigated by youth or a plea of guilty at the first available opportunity. The appellant is entitled to mitigation by reason of his plea of guilty, but that plea of guilty was entered on the first day of trial in the face of a strong prosecution case. We would, pursuant to s 9AA of the Sentencing Act, give a reduction of 10% for the appellant's plea of guilty.
Mitigating weight must also be given to the appellant's generally law‑abiding and positive lifestyle, his contributions to the community (albeit balanced against the matter referred to in [66] of these reasons), his remorse and his favourable prospects for rehabilitation. We accept that it is unlikely that the appellant will offend again, and personal deterrence is not a major sentencing consideration in this case. We also take into account that the appellant has already spent two months in custody. One matter which is not mitigating in this case is the impact that the appellant's imprisonment has upon his family. There is no evidence before this court to enable us to conclude that the appellant's family will suffer exceptional hardship by reason of his incarceration.
In our opinion, the offence committed by the appellant was serious. When all of the circumstances are taken into account, including those personal to the appellant, and the relevant principles are applied, the only appropriate disposition in this case is the imposition of a term of imprisonment. We would impose a term of 15 months' imprisonment.
We now turn to the question of suspension. We are positively satisfied that the only appropriate penalty is a term of immediate imprisonment by reason of the objective seriousness of the offence, and having regard to the sentencing consideration of general deterrence.
As we would not impose a sentence different from that imposed by Herron DCJ, the appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
1 JULY 2019