McCOOKE v The State of Western Australia
[2020] WASCA 155
•18 SEPTEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: McCOOKE -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 155
CORAM: BUSS P
MAZZA JA
HEARD: 21 AUGUST 2020
DELIVERED : 18 SEPTEMBER 2020
FILE NO/S: CACR 105 of 2020
BETWEEN: CHRISTINE GAYE McCOOKE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: WALLACE DCJ
File Number : IND 187 of 2020
Catchwords:
Criminal law - Possession of methylamphetamine with intent to sell or supply to another person - Failure to comply with data access order - Appeal against sentence - Whether sentencing judge took into account an aggravating factor as an element of the offence - Whether total effective sentence infringes the first limb of the totality principle
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Criminal Appeals Act 2004 (WA), s 27(1), s 27(2), s 27(3)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | C M Townsend |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Lewis Blyth & Hooper (Gosnells) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Abraham v The State of Western Australia [2014] WASCA 151
Carlucci v The State of Western Australia [2019] WASCA 37
Cartwright v The State of Western Australia [2010] WASCA 4
Coleski v The State of Western Australia [2008] WASCA 260
Collins v The State of Western Australia [2007] WASCA 108
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Donaldson v The State of Western Australia [2018] WASCA 143
Fenton v The State of Western Australia [2015] WASCA 255
Maric v The State of Western Australia [2015] WASCA 190
Potaka v The State of Western Australia [2017] WASCA 98
Stewart v The State of Western Australia [2014] WASCA 195
Sumption v Gaunt [2013] WASC 258
Tapper v The State of Western Australia [2016] WASCA 140
The State of Western Australia v Andela [2006] WASCA 77
The State of Western Australia v Egeland [2018] WASCA 228
JUDGMENT OF THE COURT:
This is an application for leave to appeal against sentence.
The appellant was charged with three offences on indictment in the District Court. Count 1 alleged that on 26 June 2019, at Gosnells, the appellant had in her possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). Count 2 alleged that on the same date and place as count 1, the appellant was in possession of a thing capable of being stolen, namely money, that was reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA). Count 3 alleged that on 17 July 2019, at Gosnells, the appellant having been served with a data access order on 8 July 2019, and without reasonable excuse, did not obey that data access order by failing to provide access to her mobile telephone, contrary to s 61(2) of the Criminal Investigation Act 2006 (WA).
On 3 July 2020, the appellant was convicted on her pleas of guilty of all of the counts in the indictment. The sentencing judge, Wallace DCJ, sentenced the appellant as follows:
•Count 1: 12 months' immediate imprisonment
•Count 2: 10 months' immediate imprisonment
•Count 3: 3 months' immediate imprisonment
Her Honour ordered that the sentences on counts 1 and 3 be served cumulatively and that the sentence on count 2 be served concurrently. Thus, the total effective sentence was 15 months' immediate imprisonment.[1] The appellant was made eligible for parole.[2]
[1] ts 34 - 35.
[2] ts 36.
The appellant seeks leave to appeal on two grounds. In substance, ground 1 alleges that her Honour erred in the imposition of the sentence on count 3 by taking into account, as an aggravating factor, an element of the offence. In substance, ground 2 alleges that the total effective sentence infringed the first limb of the totality principle in that her Honour imposed the wrong type of sentence. The appellant submits that her Honour should have imposed a suspended term of imprisonment.[3]
[3] Appellant's case, 1.
For the reasons that follow, neither ground of appeal has a reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed.
The facts of the offending
At the sentencing hearing on 3 July 2020, the prosecutor read aloud the State's amended statement of material facts dated 2 July 2020 with respect to the counts on the indictment.[4] Those facts were not challenged by the appellant then or before this court. The statement was incorporated by reference in the sentencing remarks.[5] The facts of the offending may be summarised as follows.
[4] ts 17 - 18.
[5] ts 27.
At about 7.00 am on 26 June 2019, police officers executed a search warrant at the appellant's home in Gosnells. During the search of the appellant's bedroom, police located a clipseal bag containing 6.71 g of methylamphetamine with a purity of 84% inside the pocket of a pink handbag (count 1).[6] Police also located $2,720 in cash in the appellant's bedroom, mainly in $100 note denominations (count 2). Some of the cash was found in close proximity to the methylamphetamine. A small quantity of cash was also found in the appellant's handbag.[7]
[6] ts 27.
[7] ts 27.
In addition to the items found in the appellant's bedroom, the police located a set of digital scales and multiple packets of clipseal bags in the dining area of the home. The appellant failed to provide an explanation for the items.[8]
[8] ts 27.
The police seized the appellant's mobile telephone. As a result of the appellant's failure to provide the police with access information for her telephone, a data access order was obtained from a magistrate requiring her to provide her telephone PIN to the police by 8 July 2019. On 16 July 2019, the appellant attended at the Gosnells police station and provided the police with an incorrect PIN (count 3). The appellant claimed that she had short‑term memory loss and could not recall the correct PIN.[9]
[9] ts 27.
The police later gained access by other means to text messages stored on the appellant's mobile telephone, which indicated that she had been involved in the sale and supply of methylamphetamine.[10]
[10] ts 27.
The appellant's personal circumstances
The appellant was 46 years of age when she was sentenced and 45 at the time of her offending.[11]
[11] ts 29.
She was born in Narrogin and raised by her parents until they separated when she was about 10 years old. The appellant experienced an unstable childhood, including instances of abuse which were detailed in the pre‑sentence report.[12]
[12] ts 29.
The appellant left home at the age of 16 to live with her husband. She has five children from her marriage and another child from a subsequent relationship. This relationship was marred by domestic abuse, resulting in the appellant's ex‑partner being convicted of assault. Her youngest child suffers from anxiety and health issues which require daily medication. At the time the appellant was sentenced, she was home‑schooling this child. The appellant had previously been engaged in fairly regular employment, but was unemployed at the time of sentencing due to her home‑schooling obligations.[13]
[13] ts 30.
In recent times the appellant has experienced digestive health difficulties and is concerned that she might have early‑onset dementia resulting from the domestic abuse she has suffered. There is no evidence to support this self‑diagnosis, nor is there any evidence of memory impairment.[14]
[14] ts 30 - 31.
The appellant has no prior convictions and the sentencing judge considered her to be a person of prior good character.[15]
[15] ts 33.
The sentencing remarks
After summarising the facts of the appellant's offending, her Honour identified various aggravating and mitigating factors. As to the aggravating factors, her Honour identified the high purity of the methylamphetamine the subject of count 1 and that the appellant was involved in the supply of methylamphetamine for commercial gain as indicated by the discovery of digital scales and empty clipseal bags in her home, and the text messages the police downloaded from her mobile telephone.[16]
[16] ts 28.
Relevantly to ground 1, the sentencing judge also identified as an aggravating factor the appellant's 'refusal to provide reasonable assistance to police by providing [her] correct PIN to the mobile phone'.[17]
[17] ts 29.
Her Honour stated that the mitigating factors were:
(a)the appellant's pleas of guilty, for which her Honour gave a reduction of 20%, pursuant to s 9AA of the Sentencing Act 1995 (WA);[18]
(b)the appellant's prior good character;[19] and
(c)the appellant's 'traumatic and difficult upbringing'.[20]
[18] ts 29.
[19] ts 32.
[20] ts 33.
Her Honour noted the observation in the pre‑sentence report that the underlying cause of the appellant's offending was her poor decision‑making and 'the negative peer relationship with [her] drug‑using son'.[21]
[21] ts 31.
Her Honour rejected the proposition that the appellant did not provide the police with the correct PIN to her mobile telephone because she was experiencing memory impairment.[22]
[22] ts 32.
Her Honour found that the appellant was not genuinely remorseful for her offending, observing that the appellant seemed to 'excuse or justify or externalise blame to a certain extent on others'.[23] Her Honour found that the appellant lacked insight and accountability with respect to the offending.
[23] ts 32.
Her Honour observed that an offer of future employment from the appellant's fiancé was 'somewhat difficult to reconcile' with the appellant's position as a full‑time carer and educator for her youngest child with special needs.[24]
[24] ts 33.
Her Honour had regard to the well‑established sentencing principle that for offences of possession of a prohibited drug with intent to sell or supply, significant weight must be given to general deterrence and that matters personal to an offender are accordingly given less weight.[25] With respect to count 3, her Honour noted that the appellant's refusal to comply with the data access order was persistent and hindered the police in their investigation for a period of time.[26]
[25] ts 33.
[26] ts 34.
Her Honour found, having regard to all of the relevant circumstances of the appellant's offending, that the only appropriate penalties were immediate terms of imprisonment.[27]
[27] ts 34 - 36.
Ground 1
Ground 1 reads:[28]
The learned sentencing judge erred when finding that an aggravating feature of count 3 was the appellant's refusal to provide assistance to the police, such feature being inherent in the offence.
[28] Appellant's case, 1.
The relevant impugned passage in the sentencing remarks is as follows:[29]
The aggravating feature in respect to count 3 on the indictment is your refusal to provide reasonable assistance to police by providing your correct PIN to the mobile phone. Thus, even though you pleaded guilty to the charges on the indictment, thereby facilitating and assisting the prosecution of these crimes, you nevertheless at the time hindered the ability of police to complete their investigations.
[29] ts 29.
The appellant contended that, by this paragraph, her Honour erroneously categorised an element of the offence, namely the failure to obey a data access order, as an aggravating factor.
Ground 1 - Disposition
The impugned passage must be read in context.
The preceding paragraphs in the sentencing remarks focus on the appellant's feigned inability to recall the PIN to her mobile telephone and to the subsequent discovery by police of text messages on the telephone, which clearly showed that the appellant had been selling prohibited drugs for commercial gain.[30]
[30] ts 28.
When the impugned paragraph is read in its proper context, it is clear that her Honour did not fall into the error alleged by the appellant. Rather, her Honour's reference to the appellant's 'refusal to provide reasonable assistance to police' was a reference to matters which plainly made the offence of failing to comply with a data access order more serious. The appellant's conduct was more than a mere failure to obey the data access order. She actively and persistently misled the police in an attempt to prevent them from discovering the incriminating text messages that were kept on her mobile telephone by feigning an inability to recall her PIN. Her Honour therefore correctly categorised these features as aggravating, that is, they increased the appellant's culpability: see s 7(1) of the Sentencing Act.
In any event, even if the alleged express error had been made by the sentencing judge, we would nevertheless have refused leave to appeal.
Section 27(1) of the Criminal Appeals Act 2004 (WA) provides that the leave of this court is required for each ground of appeal in an appeal under pt 3 of the Act. By s 27(2), after an appeal is commenced, this court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding. By s 27(3), unless this court gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.
In Abraham v The State of Western Australia[31] this court held that s 27(2) of the Criminal Appeals Act embodies a negative proposition, namely, that this court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding. Neither s 27 nor any other provision of the Criminal Appeals Act requires this court to grant leave to appeal on a ground of appeal in an appeal against sentence which alleges an express error by the sentencing judge, if this court is satisfied the ground has a reasonable prospect of succeeding. Even if the express error is made out, this court retains a discretion to refuse a grant of leave if it is satisfied that it is not reasonably arguable that a different sentence should have been imposed.
[31] Abraham v The State of Western Australia [2014] WASCA 151 [81].
In our opinion, even if the express error alleged by the appellant was made out, and this court was called upon to re‑exercise the sentencing discretion, it is not reasonably arguable that a different sentence should have been imposed.
As the sentencing judge pointed out, the appellant's defiance of the data access order was persistent. The police were seeking information to ascertain whether the appellant was engaged in the sale or supply of prohibited drugs. The appellant attempted to thwart the investigation by not merely failing to comply with the order, but by actively misleading the police by stating that she could not recall the PIN to the mobile telephone. While the police were ultimately able to obtain access to the text messages stored on the mobile telephone, the appellant's actions had the potential of thwarting, at least to some extent, the police investigation. Penalties for non‑compliance with a data access order must act as a deterrent to others and, as Hall J in Sumption v Gaunt[32] put it, '[overcome] the reluctance that the person and others may have to cooperate with the police'.
[32] Sumption v Gaunt [2013] WASC 258 [39].
Having regard to the maximum sentence of 5 years' imprisonment for the offence and taking into account the appellant's plea of guilty and the other mitigating circumstances identified by the sentencing judge, it is not reasonably arguable that a different sentence should have been imposed even if the express error alleged in ground 1 had been made out.
Leave to appeal on ground 1 must be refused.
Ground 2
By ground 2, the appellant does not challenge her Honour's conclusion that the only appropriate penalty for the offences committed by the appellant was a term of imprisonment. Nor does the appellant challenge the length of the individual sentences or the total effective sentence. Rather, by ground 2, the appellant challenges her Honour's decision to impose terms of immediate, rather than suspended, imprisonment. The appellant submits that, having regard to the circumstances of the offending and the appellant's mitigating circumstances, including her pleas of guilty, her prior good character and her traumatic upbringing, conditional or unconditional terms of suspended imprisonment should have been imposed.
Ground 2 alleges an implied error. The discretion conferred on sentencing judges is of fundamental importance. This court may not substitute its opinion for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate that the sentence imposed was unreasonable or plainly unjust.
A sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately.[33] The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. The seriousness of the offending may be such as to outweigh the personal considerations of rehabilitation.[34]
[33] Tapper v The State of Western Australia [2016] WASCA 140 [69].
[34] Tapper [70]; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [86].
The general principles relevant to sentencing offenders convicted of possessing methylamphetamine with intent to sell or supply are well established. Major sentencing considerations are general and personal deterrence. While the weight of the drugs in question is not generally the chief matter to be taken into account in imposing a sentence, it remains a matter of importance. Other relevant matters include the nature and level of the offender's participation in drug dealing or trafficking and whether the offending was committed for commercial gain. The degree of purity of the drugs is often regarded as a significant consideration. Matters personal to an offender will invariably be subsidiary considerations, but they are not irrelevant.[35]
[35] Carlucci v The State of Western Australia [2019] WASCA 37 [37].
This court has made it plain that ordinarily, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for serious drug offences such as count 1. In such cases, the imposition of a different kind of sentence is, as a matter of fact, exceptional.[36] However, even in such a case, a sentencing judge is not relieved of his or her obligation to assess whether it is appropriate to suspend the term of imprisonment, or to impose another lesser sentence.[37]
[36] See Collins v The State of Western Australia [2007] WASCA 108 [17]; The State of Western Australia v Andela [2006] WASCA 77.
[37] Collins [21].
Ground 2 - Disposition
In our opinion, the circumstances of the present case were not such as to leave open to the sentencing judge the imposition of suspended imprisonment of any kind.
While the amount of methylamphetamine the appellant possessed was not as high as seen in many other cases decided in this court, it is clear from all of the relevant circumstances, including the text messages recovered from the appellant's mobile telephone; the cash discovered in her bedroom the subject of count 2; and the presence of digital scales and clipseal bags at her home, that the appellant was actively engaged in the distribution of methylamphetamine for commercial gain. Her Honour was correct to regard general deterrence as being the predominant sentencing consideration in this case.
While there were mitigating factors in the appellant's favour, including, significantly, her pleas of guilty, none of the mitigating factors either individually or in combination justified or permitted sentences other than terms of immediate imprisonment. We have considered other cases decided by this court that deal with quantities of illicit drugs similar to the quantity possessed by the appellant in count 1, including Coleski v The State of Western Australia;[38] Cartwright v The State of Western Australia;[39] Stewart v The State of Western Australia;[40] Maric v The State of Western Australia;[41] Fenton v The State of Western Australia;[42] Potaka v The State of Western Australia;[43] Donaldson v The State of Western Australia[44] and The State of Western Australia v Egeland.[45]
[38] Coleski v The State of Western Australia [2008] WASCA 260.
[39] Cartwright v The State of Western Australia [2010] WASCA 4.
[40] Stewart v The State of Western Australia [2014] WASCA 195.
[41] Maric v The State of Western Australia [2015] WASCA 190.
[42] Fenton v The State of Western Australia [2015] WASCA 255.
[43] Potaka v The State of Western Australia [2017] WASCA 98.
[44] Donaldson v The State of Western Australia [2018] WASCA 143.
[45] The State of Western Australia v Egeland [2018] WASCA 228.
These cases illustrate that the imposition of suspended terms of imprisonment for the offence the subject of count 1 is, as a matter of fact, exceptional, even for offences involving small quantities of illicit drugs such as methylamphetamine and do not support the appellant's claim of manifest excess.
Having evaluated all of the relevant facts and circumstances of the case, it was not open to her Honour to impose a suspended term of imprisonment for count 1. The only appropriate sentence was a term of immediate imprisonment. As the only appropriate sentence for count 1 was a term of immediate imprisonment, suspended sentences were not open on counts 2 and 3.
Leave to appeal on ground 2 must be refused.
A final matter
In the written and oral submissions made on behalf of the appellant, reference was made to the appellant's daughter suffering from a serious medical condition which may require surgery.[46] This condition, which was not known at the time the appellant was sentenced and was not raised before the sentencing judge, could only be relevant if this court was called on to resentence the appellant. As the grounds of appeal have no reasonable prospect of succeeding, the appeal must be dismissed. This court cannot re‑exercise the sentencing discretion.
[46] Appellant's case, 6; appeal ts 4.
Orders
We note that the appellant sought an urgent appeal order in the event that leave to appeal was granted or the issue was referred to the hearing of the appeal. As neither course should be taken, an urgent appeal order is unnecessary.
The orders of the court we would make are:
(1)The application for an urgent appeal order is refused.
(2)Leave to appeal is refused on grounds 1 and 2.
(3)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LT
Associate to the Honourable Justice Mazza18 SEPTEMBER 2020
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