Pacini v Bradley
[2021] WASC 179
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: PACINI -v- BRADLEY [2021] WASC 179
CORAM: HALL J
HEARD: 31 MAY 2021
DELIVERED : 4 JUNE 2021
FILE NO/S: SJA 1007 of 2021
BETWEEN: JAMIE FRANKLIN PACINI
Appellant
AND
ADAM BRADLEY
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE J ANDRETICH
File Number : BUN 3583 - 3592 of 2020
Catchwords:
Criminal Law - Appeal against sentence - Multiple drug offences - Offer to sell or supply - Possession with intent to sell or supply - Total effective sentence of 18 months' immediate imprisonment - Whether magistrate used wrong test in determining whether a suspended sentence of imprisonment was inappropriate - Whether sentence infringed the totality principle
Legislation:
Nil
Result:
Leave to appeal granted on ground 1
Leave to appeal on grounds 2 and 3 refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | D Hunter & G Horstmann |
| Respondent | : | G Beggs |
Solicitors:
| Appellant | : | Legal Aid - Bunbury |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Apkarian v The State of Western Australia [2015] WASCA 67
Attenborough v The State of Western Australia [2005] WASCA 132
Bailey v The State of Western Australia [2016] WASCA 10
Crichton v The State of Western Australia [No 2] [2014] WASCA 37
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Donaldson v The State of Western Australia [2020] WASCA 193
Golding v Gaunt [2020] WASC 361
Goodwin v The State of Western Australia [2017] WASCA 184
Hayter v Thomson [2020] WASC 194
Jones v The State of Western Australia [2018] WASCA 105
Monisse v The State of Western Australia [2021] WASCA 52
Ness v The State of Western Australia [No 2] [2013] WASCA 56
Samuel v The State of Western Australia [2004] WASCA 154
SHI v The State of Western Australia [2020] WASCA 197
The State of Western Australia v Egeland [2018] WASCA 228
The State of Western Australia v Marchese [2006] WASCA 153
The State of Western Australia v Thompson [2014] WASCA 108
Truscott v The State of Western Australia [2016] WASCA 58
Wheeler v The Queen [No 2] [2010] WASCA 105
HALL J:
On 7 December 2020, the appellant was sentenced in the Bunbury Magistrates Court to a total effective sentence of 18 months' immediate imprisonment with eligibility for parole for nine offences, the majority of which were drug related. He now seeks leave to appeal against that sentence.
The notice of appeal was filed on 1 February 2021. It was therefore approximately one month out of time. The appellant applies for an extension of time and has filed an affidavit in support of that application. The reason the extension is required is because there were delays in obtaining a transcript of the Magistrates Court proceedings. The delay is relatively short and an adequate explanation for it has been provided. An extension of time should therefore be granted.
There are three grounds of appeal. The first ground alleges that the magistrate made an error of law by applying the wrong test in determining whether the sentence of imprisonment should be suspended. The second ground alleges that the magistrate erred by imposing the wrong type of sentence, that is an immediate sentence of imprisonment rather than a suspended sentence. The third ground alleges that the length of the total sentence infringed the first limb of the totality principle, that is, that the total sentence was disproportionate to the offending when viewed as a whole.
Leave is required for each ground of appeal. Leave can only be granted if the court is satisfied that a ground has a reasonable prospect of succeeding. For the reasons that follow, I would grant leave in respect of ground 1, refuse leave in respect of grounds 2 and 3 and dismiss the appeal.
The facts
The appellant pleaded guilty to the charges and the facts were admitted. A summary of those facts is as follows.
On 27 May 2020, the appellant engaged in a text exchange with another person in which he offered to supply 0.2 g of methylamphetamine. He directed the person who he was dealing with to attend at his (the appellant's) place of work in Bunbury.
At 8.35 pm on 29 May 2020, the appellant again engaged in communications by telephone during which he made an offer to supply methylamphetamine, on this occasion 0.8 g. The appellant's asking price was $800. The other party offered to pay $500 by deposit into a bank account of the appellant.
On 30 May 2021, the appellant again offered to supply 0.5 g of methylamphetamine to another person. This offer was also made by telephone. The appellant stated he would initially supply 0.2 g of methylamphetamine and then deliver the rest after he obtained it.
On 4 June 2020, the appellant again had a communication by telephone in which he stated he had 1.5 g of methylamphetamine that he was willing to provide to the other person. The other person agreed and the appellant arranged to meet him at his (the appellant's) place of work in Bunbury.
At 1.00 pm on 5 June 2020, the appellant was stopped by police whilst driving his work vehicle in Bunbury. The appellant and the vehicle were subjected to a search by the police. Police located 1.9 g of methylamphetamine inside the appellant's pants.
At 12.05 am on 17 June 2020, the appellant again used his mobile telephone to engage in a conversation with another person regarding the supply of drugs. In this conversation he offered to supply 0.5 g of methylamphetamine for $500.
At about 9.00 am on Wednesday 1 July 2020, the appellant was arrested at his work place in Bunbury. Search warrants were executed at his work place and at his home.
During the search of the appellant's work place a mobile telephone was located in the rear office. The telephone had a lock code and biometrically installed protection which prevented police officers from accessing the contents of the telephone. Given the offers to supply drugs made by the appellant over the previous weeks using a mobile telephone, the police had reason to believe that the mobile telephone that was seized contained information relating to the sale and supply of methylamphetamine. Where a device is seized and the police reasonably suspect that the person from whom it was seized knows how to gain access or to operate any such device they may order that person to provide any information or assistance that is reasonable and necessary to enable the police to access the information on that device.[1] A person who fails to comply with such an order without reasonable excuse commits an offence.[2] The appellant was placed under a requirement to supply the lock code of the telephone but refused to do so.
[1] See s 149(2)(b) of the Criminal Investigation Act 2006.
[2] Section 153 of the Criminal Investigation Act.
During the search of the appellant's home a number of other items were seized. These included three glass smoking implements with traces of methylamphetamine, one 5 mg tablet of oxycodone and five rounds of .22 ammunition. The appellant holds a firearms licence and is entitled to possess a firearm and ammunition provided that they are properly stored. The ammunition found at the house was not stored in a locked cabinet as required.
After the execution of the search warrants the appellant was taken to the Bunbury Police Station and offered the opportunity to participate in an interview. He gave 'no comment' answers. That is, he made no admissions of a material nature. At the conclusion of the interview he was charged with the offences that are the subject of this appeal.
Procedural history
After two adjournments for legal advice the appellant appeared in the Magistrates Court in Bunbury on 31 August 2020 and entered pleas of guilty to all charges. Prior to that appearance the appellant had been referred to the South West Community Alcohol and Drugs Service and assessed for suitability to participate in a supervised treatment intervention regime (STIR) program. He was assessed as suitable and a report in that regard was provided to the court.
Following the pleas of guilty on 31 August 2020, the appellant was released on bail to enable him to participate in the STIR program. This course was not opposed by the prosecution. The appellant's bail conditions required him to reside at a nominated address, undertake the STIR program, attend counselling sessions as arranged by the treatment agency, attend random urinalysis testing and provide a sample as directed and follow all lawful directions of a Community Corrections Officer in relation to the program. A pre-sentence report was also ordered.
On 19 October 2020, the appellant appeared in the Magistrates Court in Bunbury for the purposes of monitoring his progress on the program. A report dated 15 October 2020 stated that the appellant had engaged beneficially in the program and made significant progress. He had remained abstinent from drug use and attended urinalysis as required. He had not tested positive for drugs on any occasion. The report concluded by saying that the appellant still had a number of ongoing stressors in his life and it was recommended that he be given a further eight weeks on the program. The court accepted the recommendation and the matter was adjourned to 7 December 2020.
On 7 December 2020, the appellant was sentenced. At that time a further STIR program report was available. That report stated that the appellant had engaged the program and made significant progress. He had continued to remain abstinent from drugs and had returned no positive tests to urinalysis. Whilst he continued to have ongoing stressors in his life, the report stated that he appeared to have strong coping strategies to assist with overcoming these. The report concluded that the appellant should be commended for making many beneficial changes to his life. This included rebuilding relationships with non‑drug using friends and developing a strong relationship with his father, sister and his own children.
Personal circumstances
At the time he came to be sentenced the appellant was aged 49 years old. He was separated with two teenage children.
In sentencing submissions counsel who appeared for the appellant in the Magistrates Court advised that the appellant was introduced to methylamphetamine by a work colleague about 5½ years ago when he was working as a fly-in fly-out employee in the Pilbara. He was working on a two weeks on one week off basis and would use methylamphetamine on his weeks off. That habit had continued over the following years.
At some point the appellant stopped working in the Pilbara and became the proprietor of a small business in Bunbury. He ran that business with his wife. The business began to do poorly and it became necessary to lay off staff. This resulted in the appellant having to work long hours. He used drugs to help him stay awake. At around the same time the appellant's relationship with his wife broke down and they separated. This added to the appellant's stress, particularly as he continued to work with his wife in the business. The business was eventually transferred to the sole ownership of his wife.
The pre-sentence report noted that the appellant had no previous history of similar offending. The only prior convictions were for minor traffic matters. The report confirmed that the appellant had engaged successfully with the STIR program. It was also noted that he had undertaken counselling with a private psychologist. The report stated that the appellant expressed an understanding of his offending, the causes of it and the impact that it had had on his daughters and his family. He continued to enjoy the support of his family.
Sentencing submissions
Defence counsel accepted that the offences were very serious and that all sentencing options were open. He submitted that the appellant could be described as a user/dealer. He said that the offers to sell drugs were made by the appellant in order to supplement his income so that he could purchase more drugs for himself as well as support himself due to the failing business. However, he submitted that the appellant's positive engagement with the STIR program, voluntary engagement with psychological counselling and prior good character justified the imposition of a suspended sentence of imprisonment.
The prosecutor accepted that the appellant was a user/dealer but said that there were a number of factors which made the offending serious. In particular, he referred to the refusal by the appellant to facilitate access to his mobile telephone and that he continued to offend notwithstanding being stopped by police and found in the possession of drugs on 17 June 2020.
Magistrate's sentencing remarks
In her sentencing remarks the learned magistrate referred to the maximum penalties and that any sentence imposed must be commensurate with the seriousness of the offences. She accepted that the appellant's pleas of guilty were entered at the earliest reasonable opportunity and that a 25% discount was appropriate. She said that there were a number of aggravating factors, including that there was a degree of planning and premeditation, that the offending was committed over a period of time and that the offending continued after the appellant had been stopped by police and found in possession of methylamphetamine.
In regard to mitigating factors, her Honour referred to the appellant's prior good character and his engagement with the STIR program. In this latter respect she said:
Further your engagement with the STIR program has been encouraging. And it seems as if you have made considerable efforts to engage with that program and to engage with counselling and you have remained clean. Drug - your analysis showing that you had a negative result on 19 December - sorry, 19 November, 11 November, 29 September, 18 September, 7 September and 31 August 2020 and you ought to be commended for your involvement in that program.[3]
[3] ts 18.
Her Honour then noted that any sentence must act as a general deterrent. She noted the damage done on the lives of others by drugs and that drug use often led to other types of offending. She accepted that specific deterrence was less significant given that the appellant had positively engaged with the STIR program. She acknowledged that the appellant appeared to be keen to turn his life around.
After referring to the totality principle and the need to ensure that any total sentence bore a proper relationship to the overall criminality, her Honour stated:
I do reach the position where a term of imprisonment is appropriate. I must not impose a term of imprisonment unless I decide that the seriousness of the offence is such that only imprisonment is justified, or the protection of the community requires it. That's because a term of imprisonment is considered to be a sentence of last resort. Your counsel has urged me to consider whether - consider suspending that term of imprisonment and in order to consider whether I'm going to suspend that term of imprisonment.
I need to effectively take into account all of those factors again: the seriousness of your offending, the element of persistence, general deterrence, personal factors which matters [sic] in mitigation to you, the need to demonstrate the community's condemnation for this type of offence, the prospect of rehabilitation versus the threat of breach, any time you have spent in custody are any factors effectively suggesting that I should exercise mercy.
With respect to those factors I - as I have already indicated, I do consider that the nature of the offending is serious because it involved a fairly large amount of methylamphetamine that you were found to be in possession in [sic] on 5 June but the other, the sell supply, it wasn't one offer to sell or supply the methylamphetamine but it was done on numerous times. And more particularly, notwithstanding, you were pulled over on 5 June and found to be in possession of a substantial amount of methylamphetamine, you chose to within 12 or 13 days, offer to sell that - sell that drug to someone else.
You, in particular, are aware of the effect that the addiction to drugs can have on a person and the effect on that person's life. I understand and I accept that you were a person who was selling for the purpose of funding your own habit and also you were financially in difficulty given the business wasn't running that well. But by selling drugs to other people you're effectively encouraging them and drawing them into a life of addiction to methylamphetamine and that, in my view, is abhorrent by virtue of the fact that you, yourself, are aware of the addiction and the effect it can have on your life and the manner in which it wreaks havoc in a person's life and a family's life.
I take into account your personal circumstances, as I said, you ought to be commended for your involvement in the STIR program. But there is a need in this case, in my view, to impose a sentence which does demonstrate the community's condemnation for this type of offence. There is hope for your rehabilitation rather than you reengaging in this activity by virtue of your acknowledgment of the addiction you have the problem you have and you've managed to remain free of drugs for all of those analysis that were done and also the STIR program indicates that you're keen to turn your life around.
In your case there has been no time spent in custody. I've considered whether I ought to suspend this term of imprisonment but, in my view, the nature of the offending and the persistent character of the sell or supply and the fact you chose to sell or supply shortly after being pulled over and being caught to be in possession with that amount of drugs. In my view, the offending is just far too serious and it militates against any suspension. So, on that basis I'm - I'm not going to - I'm not positively satisfied that it's appropriate to suspend the term of imprisonment.[4]
[4] ts 18 - 19.
The magistrate then imposed the following sentences. (I include the firearms/ammunition offence for the sake of completeness, though it only attracted a fine and is not the subject of this appeal):
| Charge Number | Date of Offence | Offence Type | Maximum Penalty | Sentence |
| 3583 of 2020 | 27 May 2020 | Offer to sell or supply a prohibited drug - s 6(1)(c) Misuse of Drugs Act 1981 | 25 years' imprisonment or $100,000 or both (4 years' imprisonment or $5,000 or both where dealt with summarily) | 6 months' imprisonment concurrent |
| 3584 of 2020 | 29 May 2020 | Offer to sell or supply a prohibited drug - s 6(1)(c) Misuse of Drugs Act 1981 | 25 years' imprisonment or $100,000 or both (4 years' imprisonment or $5,000 or both where dealt with summarily) | 6 months' imprisonment concurrent |
| 3585 of 2020 | 30 May 2020 | Offer to sell or supply a prohibited drug - s 6(1)(c) Misuse of Drugs Act 1981 | 25 years' imprisonment or $100,000 or both (4 years' imprisonment or $5,000 or both where dealt with summarily) | 6 months' imprisonment concurrent |
| 3586 of 2020 | 4 June 2020 | Offer to sell or supply a prohibited drug - s 6(1)(c) Misuse of Drugs Act 1981 | 25 years' imprisonment or $100,000 or both (4 years' imprisonment or $5,000 or both where dealt with summarily) | 6 months' imprisonment concurrent |
| 3587 of 2020 | 5 June 2020 | Possession of a prohibited drug with intent to sell or supply - s 6(1)(a) Misuse of Drugs Act 1981 | 25 years' imprisonment or $100,000 or both (4 years' imprisonment or $5,000 or both where dealt with summarily) | 12 months' imprisonment |
| 3588 of 2020 | 17 June 2020 | Offer to sell or supply a prohibited drug - s 6(1)(c) Misuse of Drugs Act 1981 | 25 years' imprisonment or $100,000 or both (4 years' imprisonment or $5,000 or both where dealt with summarily) | 6 months' imprisonment cumulative |
| 3589 of 2020 | 1 July 2020 | Fail to obey an order given by a police officer - s 153 Criminal Investigation Act 2006 | 12 months' imprisonment or $12,000 | 6 month's imprisonment concurrent |
| 3590 of 2020 | 1 July 2020 | Possession of drug paraphernalia contrary to s 7B(6) Misuse of Drugs Act | 3 years' imprisonment or $36,000 or both | 1 month imprisonment concurrent |
| 3591 of 2020 | 1 July 2020 | Possession of a prohibited drug (oxycodone) - s 6(2) Misuse of Drugs Act 1981 | 2 years' imprisonment or $2,000 or both | 1 month imprisonment concurrent |
| 3592 of 2020 | 1 July 2020 | Inadequate storage of ammunition - s 23(9)(d)(i) Firearms Act 1973 | $2,000 | Fine of $500 |
The sentence of 12 months' imprisonment on charge 3587 was the head sentence and the sentence of 6 months on charge 3588 was cumulative. All other sentences were ordered to be served concurrently. This resulted in a total effective sentence of 18 months' imprisonment. An order that the appellant be eligible for parole was made. As the appellant had spent no time in custody no order backdating the sentence was made.
Grounds of appeal
The grounds of appeal are as follows:
1.The learned magistrate erred in law in imposing immediate sentences of imprisonment on not being positively satisfied it was appropriate to suspend the terms of imprisonment imposed.
2.The learned magistrate erred in imposing the wrong type of sentence (being sentences of immediate imprisonment) having regard to (the particulars set out in the notice of appeal).
3.The total effective sentence of 18 months' imprisonment infringed the first limb of the totality principle and was manifestly excessive having regard to all the circumstances of the case including those referrable to the appellant personally.
The notice of appeal includes particulars for each of the grounds. It is unnecessary to set out those particulars in full. It is sufficient to note that in respect of ground 1 they assert that the magistrate made an express error by applying the wrong test for whether it was open to impose a suspended sentence. In respect of grounds 2 and 3, the particulars set out the matters favourable to the appellant including his participation in the STIR program, his prior good character and his early pleas of guilty.
Ground 1 alleges an express error of law. Grounds 2 and 3 allege that an implied error can be inferred from the outcome. Before dealing with those grounds it is necessary to deal with a preliminary issue regarding an application to adduce additional evidence on the appeal.
Application to adduce additional evidence.
The appellant has sought to rely upon additional evidence on the appeal. The documents consist of Annexures JFP14 and JFP15 to the appellant's affidavit of 8 July 2020. They comprise two letters from the Operations Manager of Doors Wide Open Inc, a letter from a psychologist from inSync for Life and a number of character references from members of the appellant's family and employees from his business. It is accepted that this material was available at the time of sentencing but was not placed before the learned magistrate.
The letters from Doors Wide Open and the psychologist confirm information that was already before the magistrate in the form of the STIR report and the pre-sentence report. The magistrate found that the appellant had engaged favourably with the STIR program and made very positive progress towards his rehabilitation.
In regard to the character references, a number of them were not addressed to the court but to the company that held the master franchise for the business that the appellant owned. It is not apparent that the writer of each of them was aware of the details of the appellant's offending or that the reference would be used in court proceedings. In any event, the appellant's prior good character was not in issue and was accepted by the magistrate.
These materials are not relevant to the determination of ground 1 of the appeal. Grounds 2 and 3 assert the existence of implied error. The question of whether the total effective sentence imposed by the learned magistrate was unreasonable or plainly unjust must be determined by reference to the materials and information that were before her Honour at the time of sentencing.
Whilst there is a power in s 40(1)(e) of the Criminal Appeals Act 2004 to admit additional evidence on appeal, the existence of that power should not obscure the fact that an appeal is by way of rehearing. In the context of an appeal against sentence the test for the admission of additional evidence on an appeal is whether if the additional evidence had been before the sentencing judge or magistrate a different sentence should have been imposed.[5] It was accepted by counsel for the appellant that the additional materials were at best relevant to the exercise of the sentencing discretion but did not in themselves lead to a conclusion that a different sentence should have been imposed.
[5] Wheeler v The Queen [No 2] [2010] WASCA 105.
In my view, the materials do not materially add to the information that was before the magistrate. Furthermore, on the issues to which they relate the magistrate made findings that were favourable to the appellant. In those circumstances the application to adduce the additional material must be refused. Those materials would only be relevant in the event that the appeal was successful and it was necessary to re-sentence the appellant.
Ground 1
In SHI v The State of Western Australia,[6] the Court of Appeal stated:
[6] SHI v The State of Western Australia [2020] WASCA 197 [38] - [42].
The relevant statutory framework for sentencing in this State, and its implications for the imposition of a term of immediate imprisonment, is well known and need not be repeated.
A court must not impose a term of immediate imprisonment unless positively satisfied, having regard to the sentencing principles in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose some form of suspended imprisonment. It is established that:
1.A court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.
2.In determining whether to exercise the power to suspend a term of imprisonment the court must look again at all matters relevant to the circumstances of the offence and the personal circumstances of the offender.
3.The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation.
4.Even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge must determine the appropriate penalty for the particular case, having regard to all relevant sentencing factors. The relevant question is whether, having regard to all relevant sentencing factors, the case does not require the imposition of the ordinarily appropriate sentence.
The rationale for not imposing an immediate term of imprisonment in a given case will vary according to the particular facts and circumstances of the case. Determining whether a sentencing option is 'not appropriate' involves an evaluative judgement which is broad but not at large; it must be reached by applying the relevant sentencing principles and considerations to all the circumstances of the offence and the offender. In R v Liddington, a case concerning possession of child pornography under the predecessor offence to s 220 of the Code, Steytler J (as his Honour then was) identified as non-exhaustive relevant factors: (1) the prospect of rehabilitation; (2) the personal deterrence provided by the threat of activation of the suspended sentence; (3) the perceived seriousness and intrinsic character of the particular offence; (4) any element of persistence; (5) general deterrence; (6) factors personal to the offender including mitigating circumstances; (7) the need to demonstrate the condemnation of the community for offences of that kind; and (8) reasons militating in favour of an exercise of mercy.
There will be cases where immediate imprisonment is the only sentencing option which is commensurate with the seriousness of the offence, even where it is counterproductive from the perspective of rehabilitation. The seriousness of the nature and circumstances of the offending may require a sentence of immediate imprisonment irrespective of the personal circumstances of the offender.
So far as the appellant alleged that his sentence of immediate imprisonment was manifestly excessive as to type, it remains necessary for this court to identify error. Again, however, error will be inferred where the sentence imposed is unreasonable or plainly unjust. In HNA v The State of Western Australia this court explained that:
Where a sentence is said to be manifestly excessive as to type, the question for this court is whether it was reasonably open to the sentencing court, upon application of the relevant sentencing principles and considerations and in all the circumstances, to be positively satisfied that earlier listed sentencing options were not appropriate. (footnotes omitted)
This ground of appeal relies upon the last sentence of the passage referred to in the magistrate's sentencing remarks referred to above at [29]. In particular, the statement 'I'm not positively satisfied that it's appropriate to suspend the term of imprisonment'. The appellant submits that in making this statement her Honour applied an incorrect test for whether it was appropriate to impose a suspended sentence. That is, that her Honour used a test of whether she was not positively satisfied that it was appropriate to suspend rather than being positively satisfied that it was not appropriate to suspend. The practical difference, it was suggested, is that the formulation used by the magistrate prevented the imposition of a suspended sentence unless some positive level of satisfaction that it was appropriate was reached. Whether this involves a material difference is questionable but in any event any doubt as to whether the magistrate took an incorrect approach needs to be seen in the context of her remarks as a whole.
When the sentencing remarks are viewed as a whole it is clear that the magistrate appreciated that, having reached the conclusion that a sentence of imprisonment was the appropriate sentence, she was required to reconsider all relevant factors again to determine whether that sentence could be suspended. This is the approach approved in Dinsdale v The Queen.[7] Her Honour then went on to consider all of the relevant factors in that context. She came to the conclusion that notwithstanding the mitigating factors the seriousness of the offence and the aggravating circumstances militated against a suspended sentence. It is apparent from this that her Honour was not imposing a test that required there be some exceptional reason for the imposition of a suspended sentence or that she could not impose a suspended sentence unless there was some compelling reason to do so. Rather she came to the positive conclusion that a suspended sentence was inappropriate for the reasons that she gave.
[7] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.
Bearing this in mind, it is apparent that the last sentence was merely an infelicity of expression. It is not appropriate to infer error from infelicity of language, particularly by taking a sentence out of context. When the full context is considered the impugned sentence does not reveal the existence of a material error of law. Although I would grant leave to appeal in respect of this ground, it has not been made out.
Grounds 2 and 3
Grounds 2 and 3 were argued together at the hearing of the appeal. They both assert the existence of an implied error. Ground 2 challenges the type of sentence imposed and ground 3 the length of the sentence imposed.
In order for either of these grounds to succeed the appellant must demonstrate that the sentencing outcome was one that was not open to the magistrate in the proper exercise of her discretion. It must be established that the sentence imposed was so unreasonable or plainly unjust that an error in the exercise of the discretion can be inferred.
It is important to emphasise that an appeal court dealing with such implied errors is not addressing the question of what sentence the appeal court would have imposed had it been the sentencer at first instance. Rather the question is whether the sentence that was imposed was one that was properly open. In this regard it is appropriate to acknowledge that sentencing is a discretionary exercise with no single correct answer and that magistrates are well placed to appreciate the prevalence and relative seriousness of offences that fall within their jurisdiction.
An allegation of implied error of this type is to be assessed by reference to the applicable maximum penalties, the standard of sentencing customarily observed with respect to the offences, 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. The maximum penalties have been referred to in the table that appears at [30]. It is relevant to note that the maximum sentence for each of the s 6(1) Misuse of Drugs Act offences was 25 years' imprisonment or $100,000 or both. Whilst the maximum penalty that can be imposed summarily for these offences is 4 years' imprisonment or $5000, the statutory maximum remains relevant as an indicator of the seriousness of offences of this type.
The major sentencing considerations for drug dealing offences are general and personal deterrence. Although the weight of the drugs in question is generally not 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. Matters personal to the offender are not completely irrelevant but are a very limited consideration.
In Monisse v The State of Western Australia,[8] the Court of Appeal recently considered the approach to be taken to suspend and conditionally suspend imprisonment in cases of drug offending. The court said:
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. 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. Thus, the imposition of a sentence other than immediate imprisonment for such an offence is, as a matter of fact, exceptional. 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; Skipworth v The State of Western Australia.
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.
In The State of Western Australia v Baldini, 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.
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. (footnotes omitted)
[8] Monisse v The State of Western Australia [2021] WASCA 52 [46] - [49].
In the present case the appellant had good antecedents, had pleaded guilty at an early stage and successfully engaged with a program of rehabilitation. These factors, however, had to be weighed in the balance against the circumstances of the offending. The offending involved dealing in drugs to support the appellant's own habit, but also to assist support him financially. A sentence of immediate imprisonment would be the usual outcome in such a case, even where the personal factors were favourable.
The appellant places particular emphasis on his participation in the STIR program and the expectation he had that successful completion of that program would result in a sentence other than immediate imprisonment. An offender's expectation regarding the likely disposition is not a matter relevant to the exercise of the sentencing discretion. Participation in a pre-sentence program is not a guarantee of a non-custodial disposition and approval by a judicial officer to enter the program does not fetter the sentencing discretion.[9]
[9] Whilst it is not material to the outcome, it is to be noted that the magistrate who approved the appellant participating in the STIR program was not the same magistrate who sentenced him.
In any event, that approval did not require any detailed consideration of what the appropriate sentence was and did not occur in the context of any submissions in this regard. A pre-sentence program allows an offender an opportunity to undertake rehabilitation before being sentenced. Such rehabilitation usually has positive benefits for both the offender and the community generally. It allows the offender to maximise the prospects of a non-custodial penalty but it does not require such a penalty if, in the view of the sentencing magistrate, such a penalty is not appropriate.
An offender's participation in a STIR program can be taken into account by a sentencing magistrate as an indication of remorse and a demonstration of progress towards rehabilitation. It may also be relevant to the likelihood that an offender will commit further offences in the future. However, all of these matters are personal to an offender and necessarily carry less weight in sentencing for drug offences of this nature. In any event, there may be other factors that weigh against a non-custodial sentence.
In the present case, the magistrate expressly referred to the appellant's engagement with the STIR program and gave that factor as much weight in the sentencing as she felt able to. However, she concluded that as commendable as the appellant's participation in the STIR program was it did not outweigh the seriousness of the offences. In particular that the offences had continued over a period of time and involved multiple offers to sell methylamphetamine, that by his own admission the appellant had engaged in dealing to not only support his own habit but to supplement his failing income and that he had persisted in the offending notwithstanding being caught by the police in possession of a quantity of drugs on 17 June 2020.
When considering whether a total effective sentence is in breach of the totality principle, or whether the wrong type of sentence was imposed, it is necessary to consider comparable cases. In saying this it must be accepted that there are limitations to undertaking a comparison exercise where the total effective sentence encompasses charges of varying types. Furthermore, the range of sentences customarily imposed for a crime does not establish the limits of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
In submissions the appellant referred to the following cases: Hayter v Thomson;[10] Golding v Gaunt;[11] Donaldson v The State of Western Australia;[12] Samuel v The State of Western Australia;[13] Attenborough v The State of Western Australia;[14] The State of Western Australia v Marchese;[15] Crichton v The State of Western Australia [No 2];[16] The State of Western Australia v Thompson[17] and The State of Western Australia v Egeland.[18] In addition the respondent referred to Ness v The State of Western Australia [No 2];[19] Apkarian v The State of Western Australia;[20] Goodwin v The State of Western Australia;[21] Bailey v The State of Western Australia;[22] Truscott v The State of Western Australia[23] and Jones v The State of Western Australia.[24]
[10] Hayter v Thomson [2020] WASC 194.
[11] Golding v Gaunt [2020] WASC 361.
[12] Donaldson v The State of Western Australia [2020] WASCA 193.
[13] Samuel v The State of Western Australia [2004] WASCA 154.
[14] Attenborough v The State of Western Australia [2005] WASCA 132.
[15] The State of Western Australia v Marchese [2006] WASCA 153.
[16] Crichton v The State of Western Australia [No 2] [2014] WASCA 37.
[17] The State of Western Australia v Thompson [2014] WASCA 108.
[18] The State of Western Australia v Egeland [2018] WASCA 228.
[19] Ness v The State of Western Australia [No 2] [2013] WASCA 56.
[20] Apkarian v The State of Western Australia [2015] WASCA 67.
[21] Goodwin v The State of Western Australia [2017] WASCA 184.
[22] Bailey v The State of Western Australia [2016] WASCA 10.
[23] Truscott v The State of Western Australia [2016] WASCA 58.
[24] Jones v The State of Western Australia [2018] WASCA 105.
It is not necessary to set out the facts of each of those cases. Samuel, Attenborough and Marchese were all decided 15 or more years ago and do not necessarily reflect contemporary sentencing standards. This is particularly so in the case of drug offending where there has been a firming up of sentences as the need for general deterrence has increased over time given the prevalence of prohibited drugs such as methylamphetamine and the broader appreciation of how devastating such drugs are. Donaldson, Crichton, Thompson and Egeland are distinguishable on the basis that, unlike the present case, none of those cases involved ongoing drug dealing. Hayter does not assist as that case involved a specific error rather than any finding that a sentence was manifestly excessive or that the totality principle had been breached. The fact that a suspended sentence was imposed on a resentencing exercise in Hayter turns on its own specific facts and does not demonstrate that the sentence imposed in the present case was unreasonable or plainly unjust. Having regard to those differences, and taking the other cases into account, it is not apparent that the sentence imposed in this case either as to type or length was so clearly inconsistent with sentences imposed in other cases as to indicate that it was unreasonable or unjust.
The appellant's offending in this case was not a one-off aberration but an ongoing course of conduct engaged in over a period of weeks. It was particularly aggravated by the fact that the appellant continued to engage in drug dealing offending after he had been stopped by police and found in possession of 1.9 g of methylamphetamine. Whilst the appellant was a user/dealer he nonetheless engaged in drug dealing for financial gain. Although the appellant's rehabilitative efforts and his participation in the STIR program were commendable, the mitigation that could be extended to him on account of those factors was limited given the well-established principles that apply in sentencing for drug offending.
The individual sentences imposed were well within the appropriate ranges for offences of the type and no claim is made that any individual sentence was manifestly excessive. It would also be expected that some degree of accumulation would be imposed to reflect the number of offences, their persistence over a period of weeks and the nature of the offences. The failure to comply with data access order was a serious offence that would often justify a cumulative sentence.[25] The magistrate's approach was to impose the head sentence for the most serious of the offences, to make the sentence for the offence that occurred after the police stop cumulative to reflect the seriousness of that offending and to make all other sentences concurrent. The orders of concurrency were a proper application of the totality principle in the circumstances of this case. The total effective sentence was a proper reflection of the whole of the criminal conduct. That sentence was not disproportionate to that offending.
[25] But did not do so here, presumably for totality reasons.
It was open to her Honour to conclude that the appropriate penalty was an immediate term of imprisonment notwithstanding the favourable mitigating factors. Neither the type nor length of sentence imposed by the appellant leads to a conclusion that the sentence imposed was unreasonable or plainly unjust.
Grounds 2 and 3 are not reasonably arguable and leave in respect of them should not be granted.
Conclusion
For the reasons I have given the orders are as follows:
1.Extension of time granted.
2.Application to adduce additional evidence refused.
3.Leave to appeal on ground 1 granted.
4.Leave to appeal on grounds 2 and 3 refused.
5.Appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Hall
3 JUNE 2021
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