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

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: NESS -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WASCA 56

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 24 JANUARY 2013

DELIVERED : 28 FEBRUARY 2013

FILE NO/S: CACR 272 of 2012

BETWEEN: LIZA ANGELA NESS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :FENBURY DCJ
File No  :IND 1006 of 2012

Catchwords:

Criminal law - Appeal against sentence - Possession of heroin with intent to sell or supply - Very small quantity - Appellant an active low level dealer - Manifest excess

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1), s 34(1)(a)
Sentencing Act 1995 (WA), s 6(4), s 9AA, s 39(2), s 39(3)

Result:

Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr K P Bates
Respondent: Mr J A Scholz

Solicitors:

Appellant: Bates Legal Pty Ltd
Respondent: Director of Public Prosecutions (WA)

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

Cartwright v The State of Western Australia [2010] WASCA 4
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fogg v The State of Western Australia [2011] WASCA 11
Haasy v The State of Western Australia [2010] WASCA 207
Hobby v The State of Western Australia [2009] WASCA 108
Jenkins v The Queen (1986) 20 A Crim R 56
Korculanic v The Queen (Unreported, CCA WASC, Library No 980437, 16 July 1998)
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McDougall v The State of Western Australia [2009] WASCA 232
Pham v The State of Western Australia [2011] WASCA 244
Phillips v The State of Western Australia [2011] WASCA 69
R v Akers (Unreported, WASC CCA, Library No 920080, 11 February 1992)
Sabau v The State of Western Australia [2011] WASCA 53
Sandwell v The State of Western Australia [2012] WASCA 15
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 Berlingeri [2011] WASCA 242
The State of Western Australia v Johnson [2010] WASCA 187
The State of Western Australia v Skaines [2006] WASCA 160
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458
Wilson v The State of Western Australia [2010] WASCA 82
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

McLURE P: I agree with Buss JA, for the reasons he gives, that the appeal should be dismissed. The crucial fact in this case was that the appellant committed the offence under s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) in the course of engaging in active end‑of‑the‑chain drug dealing. That is a sentencing consideration that informs the seriousness of the offence for the purpose of the proportionality principle. See Veen v The Queen(No 2) (1988) 164 CLR 465.
BUSS JA: This is an appeal against sentence.
On 23 November 2012, the appellant was convicted, on her plea of guilty before Fenbury DCJ, on one count in an indictment which alleged that on 24 May 2012, at Nollamara, she had in her possession a prohibited drug, namely heroin, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act).
His Honour imposed a sentence of 12 months' immediate imprisonment. A parole eligibility order was made.
I would dismiss the appeal. My reasons are as follows.

The facts and circumstances of the offending

On 24 May 2012, at 1.10 am, the police stopped the appellant's motor vehicle in Nollamara and searched it. The police found three clipseal bags in the appellant's purse. One contained 0.03 g of heroin, being the drug the subject of the count in the indictment, and the others contained traces of heroin.
The appellant participated in a video‑recorded interview with the police. She claimed that she had purchased a quantity of heroin for $150 and that she had intended giving it to a friend. The appellant said that she had divided the drug into three smaller quantities to enable her to deliver one bag to her friend at successive intervals. She was unable to explain why, if that was so, two of the bags contained only traces of the drug. According to the appellant, she was attempting to assist her friend cease to use heroin by gradually using smaller quantities. She also claimed that she did not use heroin herself and that the purchase of the heroin for $150 was ' … a one off sort of thing' (VROI 8).
When the police searched her motor vehicle they also found a set of working scales in the footwell on the driver's side of the vehicle, a non‑working set of scales in the boot, and bags containing four white tablets (which, according to the appellant, were Xanax), 0.5 g of a white

powder (which the appellant said was amphetamine for her personal use), less than 1 g of a green coloured substance (which the appellant said was cannabis for her personal use) and two yellow tablets (which the appellant thought were Serapax).

The police located a number of text messages on the appellant's mobile telephone. Photographs of these messages were part of the prosecution brief. The messages show that the appellant was involved in drug dealing.

The appellant's personal circumstances and antecedents

The appellant was born on 9 January 1973. She was aged 39 at the time of the offending. She has two children aged 12 and 11 years. The children reside with the appellant's former husband.
Prior to 2012, the appellant did not have any convictions. In May and June 2012, she was convicted and fined in the Magistrates Court on three charges of possession of a prohibited drug. One charge related to amphetamine and the others to cannabis. Fines were imposed for these offences.
The information before the sentencing judge included a pre‑sentence report. The author of the report expressed some concern about the appellant's failure to comply properly with the interview process for the report:
[The appellant] attended a scheduled Pre‑Sentence Report interview an hour late on 15/10/2012 at North West Metro Community Corrections Centre. During the interview, the writer was able to obtain information relating to her offending behaviour, social background, education, health and substance use. A second interview was arranged for 17/10/2012, however [the appellant] telephoned the writer claiming she was unable to attend owing to ill health. She was instructed to contact the writer before close of business on the same day for a further appointment. [The appellant] did not contact the writer and efforts to contact her via her mobile telephone on 19/10/2012 and 22/10/2012 have been unsuccessful. Consequently, the writer was unable to obtain information pertaining to [the appellant's] employment history and current financial situation (1).
The author concluded:
[The appellant] linked her offending behaviour to her negative peer associations, illicit substance use and poor decision making and consequential thinking skills. [The appellant] acknowledged the seriousness of her actions and the impact of drugs on individuals and the community.
All sentencing options were discussed with [the appellant] who expressed her willingness to abide by the conditions of any sanction the Court may impose. As indicated above, she is considered a marginal candidate for a community based disposition given her poor compliance with the Pre‑Sentence Report interview process which does not augur well for her ability to comply with the requirements of such a penalty. Furthermore, she appeared ambivalent about engaging in programmatic intervention to assist her to abstain from illicit substance use thus suggesting that she would struggle to comply with the requirements of a community based penalty (3 ‑ 4).

The sentencing judge's findings

The sentencing judge found that the text messages on the appellant's mobile telephone indicated that she was 'engaged in active low level or end of the chain dealing to some extent' (ts 16). This finding is not challenged by the appellant.
His Honour also found that:
(a)the appellant's explanation as to the circumstances in which she purchased the heroin and as to the reason why she had divided the drug into three smaller quantities for provision to her friend at successive intervals, was implausible (ts 16 ‑ 17); and
(b)the appellant was probably involved in drug dealing in order to fund her own drug habit rather than purely for commercial reasons (ts 17).
The sentencing judge said that the very small quantity of heroin was 'a basis for imposing less than would otherwise be imposed' (ts 18), but general deterrence was a primary sentencing consideration (ts 17) and, as a result, neither a conditionally suspended sentence nor a non‑custodial sentence was appropriate.

The grounds of appeal

The appellant relies on two grounds of appeal.
Ground 1 alleges that the sentencing judge erred in law by imposing a sentence that was manifestly excessive.
Ground 2 alleges that his Honour erred in law by concluding that the circumstances of the offending were so serious, and the need to provide general deterrence was so great, that the only appropriate sentencing option was a term of immediate imprisonment.
On 14 January 2013, Mazza JA granted leave to appeal on each of these grounds.

The appellant's submissions

Counsel for the appellant said that the offence in question was committed in the context of low level drug dealing engaged in by the appellant to support her addiction.
He submitted that a sentence of immediate imprisonment, suspended with conditions, would reflect the seriousness of the offence, and the necessity for personal and general deterrence, while also providing the appellant with an opportunity to rehabilitate.

The merits of the appeal

The maximum penalty for the offence of possession of a prohibited drug, with intent to sell or supply it to another, is 25 years' imprisonment or a fine of $100,000 or both. See s 6(1)(a) read with s 34(1)(a) of the Act.
This court has stated, on countless occasions, that:
(a)the major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are personal and general deterrence;
(b)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;
(c)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;
(d)the degree of purity is often regarded as significant; and
(e)matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
By s 6(4) of the Sentencing Act 1995 (WA):
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.
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 imprisonment. See s 39(2) and s 39(3) of that Act. The sentencing judge must be positively satisfied that it is not appropriate to 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 Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] ‑ [14] (McLure JA), [58] (Buss JA); Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P, Mazza J agreeing).
The discretion to suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84]. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86].
Ordinarily, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for a serious drug offence. See Cartwright v The State of Western Australia [2010] WASCA 4, where McLure P (Owen & Wheeler JJA agreeing) said [9]:
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: Western Australia v Saxild [2008] WASCA 156 [12]. Thus, the imposition of a sentence other than immediate imprisonment for such an offence is, as a matter of fact, exceptional: Western Australia v Andela [2006] WASCA 77 [17]; Saxild [13].
Counsel for the appellant and counsel for the State referred to numerous decided cases. The cases included The State of Western Australia v Andela [2006] WASCA 77; The State of Western Australia v Skaines [2006] WASCA 160; Hobby v The State of Western Australia [2009] WASCA 108; McDougall v The State of Western Australia [2009] WASCA 232; The State of Western Australia v Johnson [2010] WASCA 187; and Sabau v The State of Western Australia [2011] WASCA 53. It is unnecessary to reproduce the facts of these cases or the sentencing dispositions.
In the present case, I am not persuaded that the sentencing judge made the errors attributed to him in the grounds of appeal.
If the appellant's offending had been a 'one‑off' occurrence or an uncharacteristic aberration, the sentence of 12 months' immediate imprisonment would, no doubt, have been manifestly excessive.
The appellant's offending was not a 'one‑off' occurrence or an uncharacteristic aberration. The very small quantity of heroin cannot be viewed in isolation. The text messages in combination with the scales found in the appellant's vehicle proved that she was an active low level drug dealer. This status is a relevant sentencing factor. It illuminates the appellant's moral culpability and underscores the need to deter her and other offenders from committing similar offences. See Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson & Toohey JJ).
The present case is unusual. Ordinarily, when a person is apprehended with a very small quantity of a prohibited drug (say, less than 1 g of heroin or methylamphetamine) there is no evidence that the person was in possession of the drug with intent to sell or supply it to another or that he or she is involved in drug dealing generally. But for the text messages and the scales, the appellant would have been charged with and convicted of another count of 'mere' possession, and the likely penalty would have been a fine.
A drug dealer (including an active low level dealer) will not ordinarily, as a matter of fact, receive a lesser type of sentence than a term of immediate imprisonment because on the occasion he or she was apprehended the dealing involved a very small quantity of a prohibited drug.
The High Court has emphasised that there is no single correct sentence, and that sentencing judges are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the applicable statutory regime. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].
I am not persuaded that, in the present case, the sentencing judge imposed the wrong type of sentence. When the term of 12 months' immediate imprisonment is examined in the context of the maximum penalty, the circumstances of the offending, the relevant standards of sentencing customarily observed, the place which the appellant's conduct

occupies on the scale of seriousness of drug dealing offences, and the appellant's personal circumstances and antecedents (including her plea of guilty at the first reasonable opportunity and the less than favourable pre‑sentence report), it is not apparent that his Honour's exercise of the sentencing discretion was unreasonable or plainly unjust. His Honour was entitled to conclude that the only appropriate sentencing option was a term of immediate imprisonment.

Neither of the grounds of appeal has been made out.

Conclusion

I would dismiss the appeal.
MAZZA JA: This is an appeal against sentence.
On 23 November 2012, the appellant was sentenced to 12 months' immediate imprisonment after entering a fast‑track plea of guilty to possession of 0.03 g of heroin of an unspecified purity with intent to sell or supply it to another, contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA). There are two grounds of appeal for which leave has been given, but they essentially amount to an allegation that the sentence was manifestly excessive in that the wrong type of sentence was imposed. The appellant contends that the learned sentencing judge should have made a conditional suspended imprisonment order per s 39(2)(g) of the Sentencing Act 1995 (WA).

Background

In the early hours of 24 May 2012 on a street in Nollamara, police officers conducted a search of a vehicle that the appellant had been driving. During the search, police discovered three clipseal bags, one of which contained the heroin the subject of the charge. The other two contained traces of heroin. The police also found three other clipseal bags. One bag contained a small number of Xanax and Serepax tablets. The other two bags contained a small amount of methylamphetamine and cannabis, which were for the appellant's personal use. A set of scales was located at the foot of the driver's seat. Another set of scales, which was not working, was found in the boot.
The police examined the appellant's mobile telephone and found a number of text messages that plainly showed that the appellant had been engaged in distributing drugs to others, albeit on a low level.

The appellant was interviewed by the police shortly after her car was stopped. She said that earlier that evening she had purchased $150 worth of heroin on behalf of a friend (AB 62). She said that at the time she was apprehended she was in the process of delivering the drug to this friend. When asked why there were three bags containing heroin, the appellant said that she took some of the heroin from the 'main bag' and put it in each of the other two bags. She claimed that she was trying to wean the friend off heroin by using smaller portions (AB 60). The learned sentencing judge did not accept the appellant's explanation in respect of the heroin, describing it as 'implausible'. Instead, his Honour found that the appellant was engaged in 'active, low‑level or end‑of‑the‑chain dealing to some extent', adding, 'I would be surprised if it wasn't mainly to enable you to fund your own usage': AB 50 ‑ 51.
At the time of committing the offence and her sentencing, the appellant was 39 years old. She had no prior convictions whatever until 2012 when she was convicted of one count of possession of methylamphetamine and two counts of possession of cannabis. She received fines for all of these offences. The appellant has used cannabis on a regular basis since her teenage years, and she commenced using amphetamines in 2008 as a form of self‑medication following a diagnosis of depression and anxiety after the birth of her second child.
The learned sentencing judge had before him a pre‑sentence report. The appellant was not completely cooperative in the preparation of the report. She was late to an interview with its author and failed to contact the author, as directed, for a second interview. The appellant told the report author that she continued to use cannabis and amphetamines and to associate with negative peers. Although she said that she would undertake substance abuse counselling and submit to urinalysis if ordered, the author of the report questioned her ability to comply with the conditions of a community based disposition. The appellant was considered a marginal candidate for a community based disposition and it was thought that she would struggle to comply with the requirements of such a penalty. It was recognised that the appellant had not previously undertaken treatment to address the issues related to her offending, in particular her illicit drug use. It appeared to the pre‑sentence report author that substance abuse counselling and psychological counselling could reduce the likelihood of offending.

As it is not alleged that his Honour made any express error, there is no need to describe in detail his Honour's sentencing remarks. His Honour emphasised the need for general deterrence. He referred, in a general way, to decisions of this court. He referred to the enormous damage done in the community by illicit drugs. He then said:
The realities of the law really are that most people who are caught or apprehended in active actual dealing get a sentence of immediate imprisonment: AB 51.
He concluded his sentencing remarks by saying:
My view is that if I don't do the hard thing there will be an appeal and you'll hear the Court of Appeal say it later and it would not be a kindness to you to accept your counsel's proposition [that his Honour should imposed an intensive supervision order or a conditional suspended term of imprisonment]. Having said that, I can see a basis for imposing less than would otherwise be imposed: AB 52.

Counsel's submissions

Mr Bates, on behalf of the appellant, accepted that, for those convicted of trafficking drugs such as heroin, it was exceptional to receive a penalty other than immediate imprisonment. He acknowledged that, based on the contents of the pre‑sentence report, the appellant was a marginal candidate for a community based disposition. However, he emphasised the very small quantity of heroin possessed by the appellant and submitted that the sentence was manifestly excessive because it was disproportionate to the circumstances of the offence.
The respondent submitted that while the quantity of the drug was indeed very small, the appellant was a low‑level drug dealer and her offending must be viewed in this light. The respondent submitted that dealers such as the appellant were an important link in the chain of illicit drug distribution and that general deterrence was the main sentencing consideration. The respondent further submitted that the sentence imposed upon the appellant reflected a sound exercise of his Honour's discretion and should not be interfered with.

Merits of the appeal

The general principles applicable to appeals against sentence are well known and need not be repeated. They were succinctly and accurately stated in Wilson v The State of Western Australia [2010] WASCA 82 [2].
To determine whether or not a sentence is manifestly excessive, the sentence must be viewed in the perspective of the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of offences of that type and the personal circumstances of the offender.
The maximum penalty for the offence of possession of heroin with intent to sell or supply is 25 years' imprisonment and/or a fine of $100,000: s 34(1)(a) of the Misuse of Drugs Act. It is unquestionably a serious offence.
The relevant sentencing principles in respect of suspended sentences for serious drug offences were explained by McLure P, with whom Owen and Wheeler JJA agreed, in Cartwright v The State of Western Australia [2010] WASCA 4 [8] ‑ [10] as follows:
Section 39(2) of the Sentencing Act 1995 (WA) (the Act) sets out the various sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Act a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term; the power to suspend is not confined by reference wholly, mainly or specially to the effect that suspension would have on the rehabilitation of a particular offender: Dinsdale v The Queen (2000) 202 CLR 321 [18], [26], [84], [85].
However, as noted in Collins v The State of Western Australia [2007] WASCA 108 [17], the sentencing discretion is not to be exercised in a vacuum. A sentencing judge must impose a type of sentence that falls within a sound discretionary range. The decisions of this court and its predecessor provide guidance to sentencing judges with the aim of achieving consistency in sentencing. This court has made it plain that generally, 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: The State of Western Australia v Saxild [2008] WASCA 156 [12]. Thus, the imposition of a sentence other than immediate imprisonment for such an offence is, as a matter of fact, exceptional: The State of Western Australia v Andela [2006] WASCA 77 [17]; Saxild [13].
However, even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge is not relieved of his or her obligation to determine the appropriate penalty in the particular case. In such circumstances the question for the sentencing judge is whether having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence: Collins [21]
The number of recent cases where a suspended imprisonment order has been upheld or imposed on appeal for offences against s 6(1) of the Misuse of Drugs Act 1981 (WA) can be counted on the fingers of one hand: see The State of Western Australia v Berlingeri [2011] WASCA 242 [15] and the cases referred to in The State of Western Australia v Johnson [2010] WASCA 187 [23].
The primary factor said by the appellant to justify the exceptional course of imposing a suspended sentence is the quantity of the drug possessed by the appellant. In Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, the High Court made it clear that it was wrong to focus solely on the quantity of the drug involved without regard to an evaluation of all the relevant circumstances of the case to ensure that, in the end, the sentence imposed upon the offender is commensurate with the seriousness of the offence. The High Court did not say that the quantity of the drug was not an important factor for a sentencer to take into account. The quantity and purity of the drug remain relevant and important considerations because they impact on the scope and extent of the potential harm to the community and will often indicate where in the chain of distribution the offender sits: Sandwell v The State of Western Australia [2012] WASCA 15 [15] and Pham v The State of Western Australia [2011] WASCA 244 [10].
Although this court has dealt with sentencing appeals in which an offender has been convicted of multiple offences of drug dealing involving small quantities (Phillips v The State of Western Australia [2011] WASCA 69 is an example), there are no recent cases concerning a single offence of drug dealing involving an amount as small as 0.03 g. The respondent, in its submissions, referred to two older cases: Jenkins v The Queen (1986) 20 A Crim R 56 and Korculanic v The Queen (Unreported, CCA WASC, Library No 980437, 16 July 1998).
In Jenkins, the appellant, a 25‑year‑old addict, was sentenced to 4 years' imprisonment with a minimum of 2 years for selling 0.038 g of heroin. On appeal, the minimum term was reduced to 9 months' imprisonment. As counsel for the State in this appeal recognised, Jenkins was decided before the Sentencing Act, at a time when suspended sentences were not available.
In Korculanic, the offender pleaded guilty to possession of 0.3 g of heroin (10 times the amount in the present case) with intent to sell or supply. He had a considerably worse record of previous convictions than the appellant in this case, including serving terms of immediate imprisonment for burglary. He was sentenced at first instance to 18 months' imprisonment. The claim of manifest excess was upheld and the sentence was reduced to 12 months' imprisonment.
There are other older cases involving small amounts of heroin. They are referred to in R v Akers (Unreported, WASC CCA, Library No 920080, 11 February 1992).
The fundamental sentencing principle is that a sentence must be proportionate to the gravity of the offence. All other sentencing principles are designed to achieve this end. The principle of proportionality was articulated in Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 and confirmed in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. It is reflected in s 6(1) of the Sentencing Act, which states that a sentence must be commensurate with the seriousness of the offence.
The sentencer has a duty to take into account all of the relevant facts and circumstances in respect of the offence before the court and arrive at a sentence that is proportionate to the offence in question. An offender cannot be punished for past crimes, whether charged or uncharged. While the existence of prior offending may illuminate the offending under consideration, it cannot justify the imposition of a penalty which is disproportionate. Nor can the need to provide general deterrence give rise to a disproportionate sentence. This objective, like all other sentencing objectives, must be accommodated within the ambit of proportionality.
I have already acknowledged that the quantity of the drug is not the sole focus in sentencing for a drug offence. Nevertheless, it is an important factor. In this case, the quantity of heroin was extremely small. It is many times less than the weight of the drug (2 g) which gives rise to the presumption of sell or supply. Nothing is known of its purity. The potential harm to the community posed by the quantity of heroin in this case was very limited. Other factors, such as a high purity and being engaged in dealing the drug for purely commercial purposes, were absent. The appellant dealt in drugs to feed her addiction (recognising that there are strict limits to the leniency that can be extended for this reason: Haasy v The State of Western Australia [2010] WASCA 207 [19]). The appellant pleaded guilty at the first reasonable opportunity and had a limited record of convictions. Until 2012 she had not been convicted of an offence. She had never been to prison before. While general deterrence remained the primary objective, there was, on the facts of this case, some room for encouraging rehabilitation.
I regard the extremely small quantity of heroin possessed by the appellant as an exceptional circumstance such that, even having regard to the other relevant considerations in this case, an immediate term of imprisonment was not required. I have been persuaded that the sentence imposed upon the appellant was plainly unjust and unreasonable. The sentence was manifestly excessive. I would allow the appeal.

Re‑sentencing the appellant

Mr Bates, on behalf of the appellant, conceded that the appropriate penalty to impose upon the appellant was a conditional suspended imprisonment order.
There is no question that the appellant requires programmatic intervention, but, despite her assurances, there is a question as to the appellant's commitment to comply with the supervision and program requirements that such an order would entail.
The appellant has now served more than 2 months in custody. One would hope that this experience, and the fear of returning to prison, will inspire in the appellant sufficient incentive to comply with any conditions that are imposed upon her. Of course, if she reoffends or fails to strictly comply with the conditions of such an order she will, in all likelihood, return to prison. Taking into account all of the relevant considerations in this case, including the time spent in custody and that the appellant pleaded guilty at the first reasonable opportunity and, pursuant to s 9AA of the Sentencing Act, should receive the maximum reduction for doing so, I would re‑sentence the appellant to 10 months' imprisonment suspended for 10 months. In addition to the standard obligations contained in s 83 of the Sentencing Act, the appellant will be subject to both a program and supervision requirement pursuant to s 84 of that Act.