Monisse v The State of Western Australia

[2021] WASCA 52

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   MONISSE -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 52

CORAM:   BUSS P

MAZZA JA

HEARD:   20 JANUARY 2021

DELIVERED          :   26 MARCH 2021

FILE NO/S:   CACR 153 of 2020

BETWEEN:   LUKE ANDREW MONISSE

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   WALLACE DCJ

File Number            :   IND 857 of 2020

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted of one count of attempting to possess a prohibited drug, namely ketamine, with intent to sell or supply and one count of possession of a thing capable of being stolen, namely money, that is reasonably suspected to have been unlawfully obtained - Pleas of guilty - Sentence of 22 months' immediate imprisonment for the drug offence and sentence of 10 months' immediate imprisonment for the possession of the money offence - Total effective sentence of 22 months' immediate imprisonment - Whether the sentencing judge erred in her assessment of the seriousness of the drug offence having regard to the nature of ketamine and the quantity the appellant attempted to possess - Manifest excess - Totality

Legislation:

Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(1)(a)
Sentencing Act 1995 (WA), s 4(4), s 6(4), s 39, s 76, s 81

Result:

Application in an appeal dated 18 January 2021 granted
Leave to appeal refused
Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant	:	Mr S B Watters
Respondent	:	Mr T B L Scutt

Solicitors:

Appellant	:	Stephen McGrath, Barristers & Solicitors
Respondent	:	Director of Public Prosecutions (WA)

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

Abbott v The State of Western Australia [2018] WASCA 45

Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143

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

Collins v The State of Western Australia [2007] WASCA 108

Crichton v The State of Western Australia [No 2] [2014] WASCA 37

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

Fenton v The State of Western Australia [2015] WASCA 255

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

Law v The Queen [2019] WASCA 81

Ness v The State of Western Australia [No 2] [2013] WASCA 56

Ng v The State of Western Australia [2020] WASCA 70

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

The State of Western Australia v Andela [2006] WASCA 77

The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198

The State of Western Australia v Egeland [2018] WASCA 228

The State of Western Australia v Johnson [2010] WASCA 187

The State of Western Australia v Saxild [2008] WASCA 156

The State of Western Australia v Thompson [2014] WASCA 108

Wadeson v The State of Western Australia [2018] WASCA 171

JUDGMENT OF THE COURT:

1. The appellant has applied for leave to appeal against sentence.

2. The appellant was convicted, on his pleas of guilty, of:

   (a)attempting to possess a prohibited drug, namely ketamine, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act) (count 1); and

   (b)possession of a thing capable of being stolen, namely money, that is reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) (the Code).

3. The maximum penalty for count 1 is 25 years' imprisonment or a fine of $100,000 or both.  The maximum penalty for count 2 is 7 years' imprisonment.

4. On 22 September 2020, Wallace DCJ sentenced the appellant to 22 months' immediate imprisonment on count 1 and 10 months' immediate imprisonment on count 2.  The individual sentences were ordered to be served concurrently.  The total effective sentence was therefore 22 months' immediate imprisonment.  A parole eligibility order was made.

5. Initially, the appellant relied upon three grounds of appeal.  Ground 1, as explained at the hearing, alleges that the individual sentences for counts 1 and 2 were manifestly excessive as to type because it was not reasonably open, in all the circumstances, for the sentencing judge to conclude that it was inappropriate to suspend or conditionally suspend the sentences of imprisonment.  Ground 2, as explained at the hearing, alleges that the length of the individual sentence for count 1 and the length of the total effective sentence were unreasonable or plainly unjust.  Ground 3, as explained at the hearing, alleges that her Honour erred in determining that 'there needed to exist exceptional circumstances before she could suspend the term of imprisonment for [count 1]'.

6. By an application in an appeal dated 18 January 2021, the appellant applied for leave to amend his grounds of appeal by adding an additional ground as ground 4.  The additional ground alleges that the sentencing judge erred in her assessment of the seriousness of the offending 'by her reference to the quantity of the ketamine as there was no material before her of the scale of any harm (potential, relative or actual) in the community by its use'.

7. We would grant the appellant's application to amend his grounds of appeal by adding the new ground 4.  However, none of the grounds of appeal has a reasonable prospect of success.  Leave to appeal should be refused and the appeal dismissed.

The facts and circumstances of the offending

1. The facts and circumstances of the offending were, in summary, as follows.

2. On 19 February 2020, police intercepted an express post prepaid parcel addressed to the appellant at a parcel locker at the Australia Post outlet in Claremont.

3. Upon inspection of the parcel, police found that it contained 27.8 g of ketamine.  Police removed the ketamine and returned the parcel to the Australia Post outlet.

4. At about 12 noon on 20 February 2020, the appellant went to the parcel locker at the Australia Post outlet and removed the express post prepaid parcel (count 1).

5. At about 12.02 pm, police arrested the appellant.  His wallet was searched and $550 cash was found (part of count 2).

6. At about 1.45 pm, a search warrant was executed at the appellant's residential address in Mount Hawthorn.  Police searched the appellant's bedroom.  Police found $1,270 cash in a clipseal bag that had been placed in a box at the top of the appellant's cupboard (part of count 2).

7. Police also found in the appellant's bedroom numerous items associated with illicit drugs, including ketamine, MDMA, cannabis and Xanax.

The sentencing judge's sentencing remarks

1. The sentencing judge recounted in her sentencing remarks the facts and circumstances of the offending and the maximum penalties.

2. The appellant began using illicit substances at about the age of 17.  He began with MDMA and then experimented with Xanax and cannabis.

3. In December 2019, the appellant was given ketamine by a friend.  The appellant liked the effect of the drug upon him, but he struggled to afford its cost.  The appellant carried out research on the Dark Web.  He ascertained a source for the purchase of ketamine at a lower cost.  His use of the drug increased heavily. As his addiction to ketamine increased, the appellant purchased additional quantities and began selling the drug to associates, partly to fund his own habit and partly for his own financial gain.

4. The appellant paid about $2,500 for the ketamine the subject of count 1.  He told police that he planned to keep about one quarter of the ketamine for his own use and to sell the balance.  The appellant admitted that the money the subject of count 2 was the proceeds of the appellant's sale of prohibited drugs.

5. The information before her Honour included a presentence report, a letter dated 11 September 2020 from the Drug and Alcohol Youth Service and a number of written references as to the appellant's character.

6. The presentence report indicated that the essential factors in the appellant's offending were his illicit substance use, negative peer association and motivation for financial gain.  Poor consequential thinking and impulsivity were contributing factors which appeared to be linked directly to the appellant's drug dependence.

7. The sentencing judge said, in effect, that there were a number of factors which reflected the seriousness of the appellant's offending.  First, the quantity of ketamine the subject of count 1, namely 27.8 g, was significant.  Secondly, there was 'commerciality' in the appellant's offending.  The appellant was, at least in part, selling prohibited drugs in order to make a profit.  However, her Honour accepted that the appellant was also, in part, selling prohibited drugs to fund his own drug habit.  Her Honour characterised the appellant as a 'low level drug user‑dealer' (ts 26).  Thirdly, the offending the subject of count 1 was not an 'isolated one-off incident'.  The appellant's involvement in the sale and distribution of prohibited drugs had a 'level of persistence to it' (ts 26).  This involvement was, however, in the early stages.

8. Her Honour said that ketamine is a dissociative anaesthetic.  It is used in veterinary medicine, primarily as a horse tranquilliser.  It is also contained in some anaesthetics used for human beings.  Ketamine is known to be dissociative, a depressant and a hallucinogen.  Although the drug has lawful uses, it was not being used by the appellant for lawful purposes.  The fact that a drug has a lawful use does not support a finding that, when abused, the drug is not capable of harm.

9. The sentencing judge did not accept defence counsel's submission that there was no documented history as to the social harm of ketamine.  Her Honour said, in effect, that, on the evidence before her, it was not a matter that she could accept 'one way or the other' (ts 27).

10. Her Honour referred to defence counsel's submission that ketamine was less serious than other prohibited drugs.  In particular, defence counsel argued that the court should sentence on the basis that ketamine was a more serious drug than cannabis, but less serious than MDMA.  Her Honour said that there was not any factual basis on which her Honour could make any determination 'as to where ketamine sits in regard to cannabis or any other prohibited drug' (ts 27).  There was no expert evidence before the court in relation to the seriousness of ketamine in itself or compared to other prohibited drugs.  Also, the maximum penalty for possession or attempted possession of ketamine with intent to sell or supply is identical to the maximum penalty for possession or attempted possession of MDMA with intent to sell or supply.  By contrast, the maximum penalty for possession or attempted possession of cannabis with intent to sell or supply is 10 years' imprisonment or a fine of $20,000 or both.

11. The sentencing judge noted a number of mitigating factors. First, the appellant's pleas of guilty. Her Honour allowed a discount of 20% on the head sentence she would otherwise have imposed for each offence pursuant to s 9AA of the Sentencing Act 1995 (WA). Secondly, the appellant was born on 12 March 2001. He was aged 18 years 11 months at the time of the offending and was aged 19 when sentenced. Thirdly, the appellant was raised in a loving and supportive family environment. He attended school until year 12. He enjoyed school and was academically successful. He has been studying at university. The appellant has worked in part-time employment since he was aged 14. He has a number of prosocial leisure pursuits. The appellant is in a relationship and his partner is prosocial. The appellant's parents, extended family and partner are very supportive of him. Fourthly, since his arrest the appellant has attended the Drug and Alcohol Youth Service. He has participated in 13 sessions over a period of about six months. He has also engaged in counselling with a clinical psychologist. Urinalysis testing with Clinipath supported the submission of defence counsel that the appellant had abstained from illicit substance use. Reports before the court indicated that the appellant was willing to continue to engage in substance abuse counselling. Fifthly, the appellant did not have any previous convictions. He was of prior good character. The appellant had evinced genuine remorse and had taken meaningful steps towards rehabilitation. He was at a low risk of reoffending.

12. Her Honour said that the appellant did not have any mental health issues.  The appellant appreciated that his use of illicit substances had a detrimental impact on his mental well-being.  He felt better after ceasing to use illicit substances following his arrest.  The appellant did suffer from some depression during his university studies, but the depression subsided upon the appellant changing his course of study.

13. The sentencing judge referred to a number of relevant sentencing principles.  In particular, her Honour noted:

    (a)A sentence of imprisonment is a sentence of last resort.

    (b)As a matter of fact, a sentence of imprisonment is the usual sentencing disposition for serious drug offending.

    (c)In the appellant's case, her Honour was of the view that it was not appropriate to impose any lesser sentencing option than a term of imprisonment.  The seriousness of the offences was such that only a term of imprisonment was justified.  Significant weight had to be given to general deterrence and the protection of the community.

    (d)It is not uncommon in this State for young people of prior good character, who have taken positive steps towards rehabilitation and who have been found to be at low risk of reoffending, to be sentenced to a term of immediate imprisonment for serious drug offences.

    (e)The imposition of a sentence other than immediate imprisonment for serious drug offences is, as a matter of fact, exceptional.  Her Honour accepted that, in the appellant's case, a finding of 'exceptional or rare circumstances' was required in order to suspend the appellant's term of imprisonment (ts 34).  However, 'even though a term of immediate imprisonment is generally the appropriate sentence', her Honour was not relieved of her obligation 'to determine the appropriate penalty in the particular circumstances of the case' (ts 34).  The question for her Honour was 'whether, having regard to all relevant sentencing factors', the appellant's case 'does not require the imposition of the generally appropriate type of sentence' (ts 34).

14. Her Honour concluded that the appellant's case was not 'rare or exceptional such that [his] term of imprisonment should be suspended' (ts 35).  There was a significant need for general deterrence and the protection of the community.  Her Honour said that, in all the circumstances, she was positively satisfied that it was not appropriate to suspend the appellant's sentence of imprisonment.

Ground 1:  the appellant's submissions

1. Counsel for the appellant submitted that it was reasonably open for the sentencing judge to impose a suspended sentence having regard to the appellant's pleas of guilty, his personal circumstances and antecedents, the criminality involved in the offending, the type of drug the subject of count 1 and the sentences imposed in broadly comparable cases.

2. It was submitted that, having regard to all relevant facts and circumstances and all relevant sentencing factors, the sentence of immediate imprisonment imposed on the appellant was manifestly excessive as to type and was unreasonable or plainly unjust.

Ground 1:  its merits

1. A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error.  It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.

2. When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases.  A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases.  Nevertheless, each case turns on its own particular facts and circumstances.  Sentencing ranges can provide only general guidance.  The limits of the guidance afforded by comparable cases are flexible rather than rigid.  A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive.  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 the 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.

3. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

4. The discretion conferred on sentencing judges is, of course, of fundamental importance.  This court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.

5. By s 6(4) of the Sentencing Act:

   A court must not impose a sentence of imprisonment on an offender unless it decides that -

   (a)the seriousness of the offence is such that only imprisonment can be justified; or

   (b)the protection of the community requires it.

6. Section 76 of the Sentencing Act provides, relevantly:

   (1)A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the term or terms be suspended for a period set by the court; but not more than 24 months.

   (2)Suspended imprisonment is not to be imposed unless 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.

7. Similarly, s 81(1) of the Sentencing Act provides that a prescribed court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months, subject to certain conditions. Section 81(2) provides that conditional suspended imprisonment is not to be imposed unless 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.

8. Section 4(4) of the Sentencing Act provides that, in the Act, a reference to the suspension of a term or terms of imprisonment is a reference to a suspension of the whole of the term or terms or part of the term or terms.

9. The limit of 5 years specified in s 76(1) and s 81(1) reflects Parliament's view that if an offender is sentenced to a term of imprisonment, or to an aggregate of terms of imprisonment, in excess of the specified limit, the offending will be of an order of seriousness which precludes suspension or conditional suspension.

10. The limit of 5 years also reflects Parliament's view that a term of imprisonment, or an aggregate of terms of imprisonment, may appropriately be suspended even though the offender has committed an offence or offences that are of sufficient seriousness as to warrant a sentence or total sentence of 5 years' imprisonment.

11. A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditional suspended imprisonment. See s 39(2) and s 39(3).

1. 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.  In a borderline case, it may be reasonably open to impose different types of sentences.  See Fogg v The State of Western Australia.[1]  The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy.  See Dinsdale v The Queen.[2]  The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy.  See Dinsdale [86].

   [1] Fogg v The State of Western Australia [2011] WASCA 11 [9].

   [2] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84].

2. As we have mentioned, the maximum penalty for:

   (a)attempting to possess ketamine, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1)(a) of the MD Act, is 25 years' imprisonment or a fine of $100,000 or both; and

   (b)possession of a thing capable of being stolen, that is reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Code, is 7 years' imprisonment.

3. The maximum penalty for an offence is relevant in assessing the seriousness of an offender's criminal conduct in relation to the offence.

4. The major sentencing considerations for drug offences of the kind committed by the appellant are general and personal deterrence.  Although the weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, 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 commercial gain.  The purity of the drug concerned is often a significant factor.  Matters personal to an offender will almost always be given reduced weight.[3]

   [3] Abbott v The State of Western Australia [2018] WASCA 45 [60].

5. The approach to be taken to suspended and conditionally suspended imprisonment in cases of drug offending was described by McLure P in Cartwright v The State of Western Australia.[4]  Generally, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for a serious drug offence.  The incentives, financial and otherwise, to participate in illicit drug dealing must be counterbalanced by a clear and certain understanding that such involvement will ordinarily, as a matter of fact, result in a penalty of immediate imprisonment.[5]  Thus, the imposition of a sentence other than immediate imprisonment for such an offence is, as a matter of fact, exceptional.[6]  However, even if a term of immediate imprisonment is generally, as a matter of fact, the appropriate penalty, a sentencing judge is always obliged to determine the appropriate penalty, in the particular case, having regard to all relevant sentencing factors.   See Collins v The State of Western Australia;[7] Skipworth v The State of Western Australia.[8]

   [4] Cartwright v The State of Western Australia [2010] WASCA 4 [9] - [10].

   [5] The State of Western Australia v Saxild [2008] WASCA 156 [12].

   [6] The State of Western Australia v Andela [2006] WASCA 77 [17] and Saxild [13].

   [7] Collins v The State of Western Australia [2007] WASCA 108 [21].

   [8] Skipworth v The State of Western Australia [2008] WASCA 64 [11].

6. Youth and the absence of prior relevant convictions do not ordinarily, as a matter of fact, result in the suspension or conditional suspension of a term of imprisonment for a serious drug offence.  It is not uncommon for young persons, otherwise of good character, to engage in the distribution of prohibited drugs.  The imposition of a term of immediate imprisonment, even where the offender is young, without prior convictions and has made positive steps towards rehabilitation, reflects the significant weight accorded to the need for general deterrence and the prevalence of offending of this type among young people.[9]

   [9] The State of Western Australia v Johnson [2010] WASCA 187 [25].

7. In The State of Western Australia v Baldini,[10] McLure P reviewed a number of cases involving drug offending by young offenders.  Her Honour said:

   My review of the cases again for the purpose of this appeal confirms that youth, in combination with some or all of prior good character, early guilty plea, remorse, advantaged background, family support, positive steps towards rehabilitation and no significant risk of re‑offending does not ordinarily avert the imposition of a term of immediate imprisonment. 

   [10] The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198 [25].

8. A drug dealer (including an active low‑level dealer) will not ordinarily receive a lesser type of sentence than a term of immediate imprisonment merely because, when he or she was apprehended, the offender had only a small quantity of drugs.  An offender's status as a drug dealer ordinarily illuminates his or her moral culpability and ordinarily underscores the need for personal and general deterrence.[11]

   [11] Ness v The State of Western Australia [No 2] [2013] WASCA 56 [32] ‑ [34].

9. We have had regard to numerous previous sentencing decisions by this court and its predecessor in relation to offending against s 6(1) of the MD Act which have some features reasonably comparable to the appellant's offending, including various of the cases reviewed by McLure P in Baldini.

10. Between 2010 and 2015 this court upheld or imposed on appeal suspended or conditionally suspended terms of imprisonment in only two cases, namely Crichton v The State of Western Australia [No 2][12] and The State of Western Australia v Thompson.[13]  Both of those cases involved small quantities of a prohibited drug, being 1.38 g and 4.34 g respectively.

    [12] Crichton v The State of Western Australia [No 2] [2014] WASCA 37.

    [13] The State of Western Australia v Thompson [2014] WASCA 108.

11. In 2015 this court allowed the State's appeal in Baldini.  The respondent in that case was convicted on his plea of guilty of one count of selling MDMA (65 tablets), one count of possessing MDMA with intent to sell or supply (490 tablets) and one charge in a s 32 notice of being in possession of $3,800 that was reasonably suspected to be unlawfully obtained.  The sentencing judge imposed a total effective sentence of 18 months' imprisonment.  His Honour suspended the term of imprisonment, on conditions, for 18 months.  His Honour also imposed a total fine of $4,000.  This court set aside the sentencing judge's sentencing decision and substituted a total effective sentence of 18 months' immediate imprisonment.

12. Since the decision in Baldini, this court has, on one occasion, upheld a suspended or conditionally suspended term of imprisonment for one count of offending against s 6(1) of the MD Act and one count of offending against s 417(1) of the Code. See The State of Western Australia v Egeland.[14] 

    [14] The State of Western Australia v Egeland [2018] WASCA 228.

13. However, in Fenton v The State of Western Australia[15] and Wadeson v The State of Western Australia,[16] both decided after Baldini, this court dismissed appeals by offenders who had been convicted of drug dealing offences involving relatively small quantities of prohibited drugs where the offenders contended that their sentences of imprisonment should have been suspended or conditionally suspended.

    [15] Fenton v The State of Western Australia [2015] WASCA 255.

    [16] Wadeson v The State of Western Australia [2018] WASCA 171.

14. There is a paucity of cases in which this court has considered s 417(1) of the Code in the context of an individual sentence that was allegedly manifestly excessive or allegedly manifestly inadequate. See, however, Ng v The State of Western Australia.[17]  See also Law v The Queen[18] and the cases there cited.

    [17] Ng v The State of Western Australia [2020] WASCA 70.

    [18] Law v The Queen [2019] WASCA 81 [157].

15. Section 76(3)(b) of the Sentencing Act provides that suspended imprisonment is not to be imposed if the offender is serving or is yet to serve a term of imprisonment that is not suspended. Similarly, s 81(3)(b) of the Sentencing Act provides that conditionally suspended imprisonment is not to be imposed if the offender is serving or is yet to serve a term of imprisonment that is not suspended.

16. The effect of those provisions, in the present case, is that it was not open to the sentencing judge to suspend or conditionally suspend the sentence of imprisonment for count 1 or count 2 unless her Honour suspended or conditionally suspended both of the terms of imprisonment for count 1 and count 2.

17. In the present case, the appellant's offending was serious.  It involved attempting to possess, with intent to sell or supply, 27.8 g of ketamine.  The appellant was a dealer as well as a user of the drug.  The offending on count 1 was not isolated, opportunistic or impulsive.  When he was arrested by the police, the appellant had been selling or supplying prohibited drugs for some time.  The money the subject of count 2 was the proceeds of drug dealing.  The appellant was selling or supplying prohibited drugs, in part, to make a profit and, in part, to fund his own drug habit.

18. The appellant was only to be punished for the offences in question.  However, the fact that he had a history of low level drug dealing demonstrated that the current offences were not aberrations and informed his culpability.

19. We accept that, as noted by her Honour, there were a number of mitigating factors. See [25] above.

20. As we have mentioned, the imposition of a suspended or conditionally suspended term of imprisonment for a serious drug offence is, as a matter of fact, exceptional.  The present case, having regard to all relevant facts and circumstances and all relevant sentencing principles, is not within the exceptional category.  The primary sentencing factor was general deterrence.  The significance of general deterrence, in the context of a serious drug offence, is such that the weight to be given to an offender's good personal circumstances, including the good personal circumstances of a youthful offender who does not have any previous convictions and is unlikely to reoffend, is ordinarily of correspondingly reduced significance.

21. After evaluating the individual sentences for count 1 and count 2, in the context of the applicable maximum penalties, the facts and circumstances of the offending, the standards of sentencing customarily observed, the place which the appellant's offending occupies on the relevant scales of seriousness, the appellant's personal circumstances and antecedents and all other mitigating factors, we are satisfied that it was reasonably open for the sentencing judge to conclude that it was inappropriate to suspend or conditionally suspend (wholly or partly) the sentences of imprisonment.  Her Honour was entitled to be positively satisfied that it was not appropriate to suspend or conditionally suspend (wholly or partly) the terms of imprisonment.  The types of individual sentences were not unreasonable or plainly unjust.  The existence of error cannot be inferred from the sentencing outcome.

22. Ground 1 is without merit.

Ground 2:  the appellant's submissions

1. Counsel for the appellant relied in support of ground 2 primarily upon the submissions made in support of ground 1.

2. It was submitted that the length of the sentence imposed for count 1 and the length of the total effective sentence (namely 22 months' immediate imprisonment) were unreasonable or plainly unjust.  If terms of immediate imprisonment were to be imposed then, so it was submitted, the length of the term for count 1 and the length of the total effective sentence should have been materially less than those imposed by her Honour.

Ground 2:  its merits

1. We are satisfied, generally for the reasons we have given in relation to ground 1, that ground 2 does not have a reasonable prospect of success.

2. In particular, we are satisfied that the total effective sentence imposed on the appellant was appropriate having regard to the maximum penalties for the offences, the overall criminality involved in both of the offences viewed in their entirety, the sentencing pattern in broadly comparable cases, the appellant's personal circumstances and antecedents and all relevant sentencing factors, including the mitigating factors referred to at [25] above.

3. The mitigating factors in the present case were properly reflected in the length of the individual terms of imprisonment and the length of the total effective sentence.

Ground 3:  the appellant's submissions

1. Counsel for the appellant submitted that the sentencing judge erred in deciding that exceptional circumstances needed to exist before she could suspend the term of imprisonment for count 1.  Counsel asserted that it could reasonably be assumed that 'had her Honour been minded to suspend the term for [count 1], the term for [count 2] would also have been suspended'.

2. It was submitted that, while ketamine is a prohibited drug, 'its prevalence is dwarfed by the prevalence of other prohibited drugs such as methylamphetamine and MDMA'.  Although general deterrence in relation to offending which involves dealing in prohibited drugs is a 'genuine consideration', the weight to be given to general deterrence in respect of ketamine is significantly less than the weight to be given to drugs which are more commonly found in the community and which have been demonstrated to have a greater negative impact on the community.

Ground 3:  its merits

1. Ketamine is a prohibited drug for the purposes of the MD Act.

2. The maximum penalty for attempting to possess ketamine or another prohibited drug (apart from cannabis and apart from a trafficable quantity of methylamphetamine), with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1)(a) of the MD Act, is 25 years' imprisonment or a fine of $100,000 or both.

3. Parliament has not distinguished between ketamine and other prohibited drugs (apart from cannabis and a trafficable quantity of methylamphetamine) in determining the maximum penalty for an offence against s 6(1)(a) read with s 33(1)(a).

4. The propositions advanced by counsel for the appellant in support of ground 3 (namely, that the prevalence of ketamine is dwarfed by the prevalence of other prohibited drugs and that other prohibited drugs have a greater negative impact on the community than ketamine), if made out, may potentially have been mitigating.  The onus was upon the appellant, at the hearing before the sentencing judge, to make out those propositions.

5. However, as counsel for the appellant accepted before this court:

   (a)no expert or other evidence was put before her Honour; and

   (b)there were no matters of which her Honour could take judicial notice,

   in relation to the actual harm to users and society from the consumption and trafficking of ketamine.

6. Further, there was no evidence before the sentencing judge as to the deleterious impact upon users and society of ketamine compared to the deleterious impact upon users and society of other prohibited drugs.  See, generally, the observations in Adams v The Queen.[19]

   [19] Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143 [9] ‑ [12].

7. In the circumstances, her Honour did not err in stating that, as a matter of fact, a sentence of imprisonment is the usual sentencing disposition for serious drug offending and in applying that statement to the appellant's offending.

8. Ground 3 is without merit.

Ground 4:  the appellant's submissions

1. Counsel for the appellant acknowledge that 'ground 4 [is] covered by ground 3' (appeal ts 15).  Counsel did not make any submissions in support of ground 4 because 'everything that [he] would want to say in relation to ground 4' had been said 'in the course of [his] submissions in relation to … ground 3' (appeal ts 16).

Ground 4:  its merits

1. We are satisfied, generally for the reasons we have given in relation to ground 3, that ground 4 does not have a reasonable prospect of success.

Conclusion

1. None of the grounds of appeal has a reasonable prospect of success.  Leave to appeal should be refused.  The appeal must be dismissed.

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

TW

Associate to the Honourable President Buss

26 MARCH 2021