Palladino v The State of Western Australia
[2023] WASCA 101
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PALLADINO -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 101
CORAM: BUSS P
MAZZA JA
VAUGHAN JA
HEARD: 11 APRIL 2023
DELIVERED : 29 JUNE 2023
FILE NO/S: CACR 61 of 2022
BETWEEN: ROBYN STEPHANIE PALLADINO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SHARP DCJ
File Number : IND 511 of 2022
Catchwords:
Criminal law - Sentencing - Application for leave to appeal against sentence - Appellant convicted of one count of possession of dexamphetamine with intent to sell or supply - Appellant convicted of one count of possession of methylamphetamine with intent to sell or supply - Appellant convicted of one count of possession of money reasonably suspected to have been unlawfully obtained - Whether sentence of 3 years' immediate imprisonment on count 1 was manifestly excessive - Whether total effective sentence of 3 years' immediate imprisonment infringed first limb of totality principle
Legislation:
Criminal Code (WA), s 417(1)
Medicines and Poisons Act 2014 (WA), s 3, s 4(1)(a)
Medicines and Poisons Regulations 2016 (WA), reg 6
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 11(a), s 34(1)(a), sch III, sch V, sch VII
Poisons Standard February 2021 (Cth), sch 8
Sentencing Act 1995 (WA), s 9AA
Therapeutic Goods Act 1989 (Cth), s 3(1), s 52A, s 52D(2)(b)
Result:
Application to adduce additional evidence dismissed
Leave to appeal on ground 1 granted
Leave to appeal on ground 2 refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | S Rafferty |
| Respondent | : | L M Fox SC |
Solicitors:
| Appellant | : | D Manera |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Attenborough v The State of Western Australia [2005] WASCA 132
CBA v The State of Western Australia [2013] WASCA 144
Dias v The State of Western Australia [2017] WASCA 49
ENR v The State of Western Australia [2018] WASCA 9
Fenton v The State of Western Australia [2015] WASCA 255
Gaskell v The State of Western Australia [2018] WASCA 8
Kabambi v The State of Western Australia [2019] WASCA 44
May v The State of Western Australia [2019] WASCA 92
Monisse v The State of Western Australia [2021] WASCA 52
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302
West v The State of Western Australia [2023] WASCA 3
JUDGMENT OF THE COURT:
Overview
This is an appeal against sentence.
On 2 June 2022 the appellant was convicted, on her pleas of guilty, of two counts of possession of a prohibited drug with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (counts 1 and 2) and one count of possession of money reasonably suspected to have been unlawfully obtained contrary to s 417(1) of the Criminal Code (WA) (count 3).
On 23 June 2022 the appellant was sentenced to 3 years' immediate imprisonment on count 1, 9 months' immediate imprisonment on count 2 and 6 months' immediate imprisonment on count 3. The sentencing judge ordered that the sentences be served concurrently, resulting in a total effective sentence of 3 years' immediate imprisonment. The sentencing judge ordered that the appellant be eligible for parole.
The maximum penalty on each of counts 1 and 2 (ie possession of a prohibited drug with intent to sell or supply) was 25 years' imprisonment or a fine of $100,000 or both. The maximum penalty on count 3 (ie possession of money reasonably suspected to have been unlawfully obtained) was 7 years' imprisonment.
There are two grounds of appeal. Ground 1 asserts that the sentence in respect of count 1 is manifestly excessive. Ground 2 asserts that the appellant's total effective sentence infringes the first limb of the totality principle.
For the reasons that follow, leave to appeal should be granted on ground 1 but refused on ground 2. The appeal must be dismissed.
Circumstances of the offending
The material facts as read out by the prosecutor were incorporated into the sentencing judge's remarks without challenge by the appellant. What follows is taken from the material facts or the sentencing remarks (see ts 12 - 13, 23 - 29 - esp. 24).
On 10 August 2021 the police executed a search warrant at the appellant's residence. The appellant's partner was at the home when the police arrived. The police placed the appellant under arrest after she arrived home subsequently.
Count 1 concerned dexamphetamine. The police located a bottle in the appellant's living room containing 30 dexamphetamine tablets, weighing 5.98 grams. The police then located a bag containing seven bottles. Each bottle contained 100 dexamphetamine tablets for a total weight of 139.4 grams. The prescription labels were removed from all eight bottles.
In total, the police found 730 dexamphetamine tablets, weighing 145.38 grams.
The appellant had possession of the dexamphetamine with intent to use some and also to supply some to her partner.
Count 2 concerned methylamphetamine. The police located four clipseal bags in the appellant's bedroom. The four bags contained a total of 5.49 grams of methylamphetamine. The appellant made admissions as to the methylamphetamine. The appellant said that she had divided the methylamphetamine into the bags to ration it out for her use over a six-week period. The police also located a glass smoking implement and two sets of electronic scales. The appellant admitted to using the glass smoking implement to smoke methylamphetamine and using the electronic scales for weighing methylamphetamine.
Count 3 related to $3,050 in cash found by the police in the appellant's bedside drawers. The appellant admitted that the cash belonged to her and told police that it had been derived legitimately from her three jobs. The police seized the appellant's mobile phone during the search. The mobile phone contained messages consistent with the sale by the appellant of methylamphetamine.
Personal circumstances
The sentencing judge was provided with a pre-sentence report and a psychological report. His Honour relied on the appellant's personal circumstances as stated in those reports but did not repeat them (ts 24 ‑ 25). What follows is taken from the reports and is supplemented from further observations made in the sentencing remarks (ts 23 - 29).
The appellant was 47 years old at the time of the offending and 48 years old at the time of sentencing.
The appellant described a happy childhood although her parents divorced when she was three years old. The appellant was raised by her mother and stepfather. The appellant's mother was loving and supportive, but both her mother and stepfather were strict. The appellant had minimal contact with her father following her parents' divorce, causing her to feel abandoned and rejected. The appellant's father died shortly after the appellant reconnected with him when she was about 25 years old.
The appellant attended various schools because her mother and stepfather frequently moved. She found her schooling difficult, experienced bullying, and left school halfway through year 11. The appellant left her mother and stepfather's home when she was 16 years old.
The appellant's relationship with her eventual husband began when she was 17 years old. They had four children together. The appellant and her husband grew apart over time and her husband was often emotionally abusive towards her. This impacted the appellant's self-esteem and she began using amphetamines. The relationship ended after 17 years. At the time of sentencing, the appellant was in another long-term relationship which began shortly after the end of her first relationship.
After leaving school, the appellant worked in retail and hospitality until she had her first child at the age of 18.
At the time of sentencing the appellant was working part-time in a fish and chip shop and had commenced working a second job at a café on weekends.
The appellant had a prior criminal record, consisting of a traffic offence and drug related offending. In 2014 the appellant was sentenced to a term of 22 months' imprisonment following convictions for manufacturing and attempting to manufacture methamphetamine.
The writer of the psychological report described the appellant as having an entrenched drug use problem.
The appellant was first introduced to methylamphetamine at the age of around 25 - 27. In or about 2012 the appellant's then partner was engaged in the manufacture of methylamphetamine. The appellant's involvement with that partner resulted in her 2014 imprisonment. The appellant had been in residential rehabilitation and had completed a three-month rehabilitation program when incarcerated. While the latter was a 100-hour structured pathways program, the appellant's treatment gains were described as 'preliminary'. It was suggested that the appellant lacked consequential thinking and had poor coping, communication, relationship, emotional regulation and stress resilience skills. Following completion of the appellant's parole, she continued using methylamphetamine up to her sentencing. While, at the time of sentencing, the appellant was still using methylamphetamine, the sentencing judge accepted that it was occasional use.
The appellant informed the writer of the pre-sentence report that she (the appellant) and her partner were using the dexamphetamine as a substitute for methylamphetamine - the latter having become difficult to get hold of. However, as to the methylamphetamine the subject of count 2, the appellant had agreed to assist a friend in selling that prohibited drug.
The sentencing judge referred to a number of references the appellant relied on. They included references from a counsellor, a support person, two friends, one of the appellant's employers and a work colleague. Copies of the references were included in the appeal book.[1]
[1] WAB 171 - 177.
The appellant was said to have some available protective factors - stable accommodation, employment and the strong support of family.
Sentencing disposition
The appellant conceded that a term of immediate imprisonment was the only appropriate sentencing disposition (ts 14).
The sentencing judge referred to the circumstances of the offending and the appellant's personal circumstances. The sentencing judge also referred to the applicable sentencing principles in orthodox terms. No complaint is made as to his Honour's recitation of the applicable principles.
As to the circumstances of the offending:
1.Having regard to the parties' common position, as clarified in the course of their sentencing submissions, the sentencing judge sentenced the appellant on the basis that the dexamphetamine was for the appellant's personal use and for supply to her partner for his use - ie it was not for dissemination into the community generally (ts 23).
2.The sentencing judge said that there was not a lot of authority with regard to sentencing for offences relating to possession of dexamphetamine with intent to sell or supply. However, even if dexamphetamine could somehow be described as less harmful than other prohibited drugs, the sentencing judge said that he could not give much weight to that - dexamphetamine was an illicit drug and the seriousness of the offending was not to be underestimated (ts 27).
3.There was a 'significant' amount of methylamphetamine (ts 27).
4.The sentencing judge said that there were no specific aggravating factors to take into account (ts 25). That said, the sentencing judge accepted that there was an element of commerciality in the offending (ts 27).
The finding that there was an element of commerciality in the offending was open insofar as then counsel for the appellant informed the sentencing judge that the appellant had been given the methylamphetamine by someone else to sell it for him (because the owner of the methylamphetamine would otherwise have used it). The appellant accepted that it was her intention to sell the methamphetamine for that person. The appellant's counsel also informed the sentencing judge that the $3,050 was the proceeds of what had previously been sold; it was to be remitted to the owner of the methylamphetamine (ts 15 - 16).
The sentencing judge accepted the parties' characterisation of the appellant as a 'low-end user-dealer' (ts 27).
In respect of mitigating circumstances:
1.The appellant was entitled to a discount for her pleas of guilty - the sentencing judge allowed a 20 per cent discount (ts 25 -26).
2.The appellant was seeking to rehabilitate herself by dealing with her substance use issues - the sentencing judge referred to the appellant having attended counselling sessions at Palmerston on at least nine occasions from 5 October 2021 to 13 June 2022 and having reduced her use of methamphetamine to 'occasional' use (ts 26).
3.The sentencing judge was satisfied that the appellant was remorseful. In this respect his Honour referred to the appellant's cooperation with the police, steps by way of rehabilitation and acceptance of the seriousness of her offending and her culpability (ts 26).
The sentencing judge observed, correctly, that the appellant's prior criminal history did not aggravate the offending. But it did mean that the offending could not be characterised as an aberration. Nor could leniency be extended to the appellant as being otherwise of prior good character (ts 25). So too the appellant was not entitled to any mitigation for youth (ts 26).
Personal deterrence was a relevant sentencing factor (ts 25). The sentencing judge concluded that the appellant's risk of reoffending in a similar manner was 'somewhere in the middle of the scale' (ts 26).
The sentencing judge was satisfied that the seriousness of the offending was such that only a term of immediate imprisonment could be justified (ts 28 - 29). His Honour considered the totality principle. In applying the totality principle the sentencing judge determined that it was appropriate that the sentences imposed on counts 2 and 3 be served concurrently with the sentence imposed on count 1. Accordingly, his Honour arrived at a total effective sentence of 3 years' immediate imprisonment (ts 28 - 29).
Grounds of appeal and parties' contentions
There are two proposed grounds of appeal:
1.By ground 1 the appellant alleges that the sentence of 3 years' immediate imprisonment imposed on count 1 (possession of the dexamphetamine with intent to sell or supply) was manifestly excessive as to length.
2.By ground 2 the appellant alleges that the total effective sentence of 3 years' immediate imprisonment infringed the first limb of the totality principle.
In support of ground 1, the appellant emphasised that she was sentenced on the basis that she was in possession of the dexamphetamine with intent to use some personally and to supply some to her partner for his personal use. There was no allegation, and it was not found, that there was an intention to sell the dexamphetamine or otherwise distribute it into the community generally. Otherwise the appellant referred to her personal circumstances and the mitigating circumstances as found by the sentencing judge.
In terms of comparable cases, the appellant mentioned ENR v The State of Western Australia.[2] It was said, however, that ENR and the cases mentioned in it were of limited assistance as comparators. Otherwise the appellant referred to a number of authorities where the offender possessed a prohibited drug with intent to supply without an intention to distribute into the community for commercial gain - mention was made of Attenborough v The State of Western Australia,[3] Fenton v The State of Western Australia[4] and May v The State of Western Australia.[5]
[2] ENR v The State of Western Australia [2018] WASCA 9.
[3] Attenborough v The State of Western Australia [2005] WASCA 132.
[4] Fenton v The State of Western Australia [2015] WASCA 255.
[5] May v The State of Western Australia [2019] WASCA 92.
The appellant contended that the offending the subject of count 1 fell towards the bottom end of the range of seriousness. The gravamen of the seriousness of such an offence was said to be in the distribution of drugs which caused significant damage in, and to, the community. The distinguishing feature of this case was that there was no intention to distribute the dexamphetamine into the community generally. The appellant submitted that, when this factor was properly taken into account with all other relevant sentencing factors, the sentence imposed on count 1 was unreasonable or plainly unjust.
In support of ground 2, the appellant characterised her overall criminality in terms that: (1) she was in possession of an amount of dexamphetamine some of which was to be made available to the appellant's partner and the rest of which she was to consume herself; (2) she was in possession of a relatively small amount of methylamphetamine which the appellant intended to sell on behalf of another person to whom she felt obliged because he had assisted her in obtaining employment. The appellant, while accepting that she was an active participant in the commercial distribution of small amounts of methylamphetamine, said that she did not benefit from that activity and had no interest in the $3,050 the subject of count 3.
The appellant submitted that her offending fell towards the bottom or lower end of the scale of seriousness. The appellant emphasised her personal circumstances and the mitigating circumstances - and that, in so offending, she was a person who had a long-standing addiction to methylamphetamine. Having regard to all the relevant matters, the appellant contended that the total effective sentence of 3 years' immediate imprisonment did not bear a proper relationship to the overall criminality of her conduct and was unreasonable or plainly unjust.
The State clarified the extent of the appellant's cooperation - the appellant's admissions to the police were limited to the methylamphetamine and $3,050. However, contrary to what was accepted at sentencing, at the time of the police search the appellant said that the methylamphetamine was for her personal use.
In opposition to ground 1, the State referred to ENR, acknowledging the statement of relevant principles it provided, but saying that the authority was of almost no assistance to the present appeal as a comparable case. The State accepted that where an offence against s 6(1) of the Misuse of Drugs Act was committed with an intent only to supply a small number of end users, without a commercial motive, it would often be a less serious form of such offending. It was pointed out, however, that the cases relied on by the appellant as to limited supply concerned quantities of prohibited drugs of an order of magnitude smaller than that in the present appeal.
The State contended that the appellant's offending the subject of count 1 was serious (albeit at the lower end of the scale of seriousness compared with commercial supply to a large or indeterminate number of end users). This, according to the State, was appropriately reflected in the term of imprisonment imposed. The sentence, while high, was not manifestly excessive.
As to ground 2, the State said that the length of the term imposed on count 1 was effectively softened in its effect by the length of the terms imposed on counts 2 and 3 and the orders for concurrency between all counts. In this respect, if ground 1 failed, it could not be arguable that the total effective sentence infringed the first limb of the totality principle. In any event, according to the State, the total effective sentence was not unreasonable or plainly unjust.
Applicable legal principles on the appeal
The principles that apply on a sentencing appeal raising grounds that a sentence is manifestly excessive and that the total effective sentence infringes the first limb of the totality principle are well established. It suffices to repeat the following passage from Kabambi v The State of Western Australia:
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range 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 the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.[6]
[6] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
So too there are many occasions in which this court has referred to the general principles that apply when sentencing for offending involving dealing in prohibited drugs.
Relevantly, the major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. That is because it can be presumed that the greater the quantity and the purity, the greater the harm which may be done to the community. 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 degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.[7]
[7] Gaskell v The State of Western Australia [2018] WASCA 8 [128].
There are, however, far fewer authorities that have considered sentences for offending contrary to s 6(1) of the Misuse of Drugs Act where the relevant prohibited drug was dexamphetamine.
Dexamphetamine is not some lesser prohibited drug. Dexamphetamine is listed as a sch 8 controlled drug in the relevant 'current Poisons Standard'.[8] A sch 8 controlled drug is one that requires restriction of manufacture, supply, distribution, possession and use to reduce abuse, misuse and physical or psychological dependence.[9] As a sch 8 controlled drug, dexamphetamine is a 'Schedule 8 poison' for the purpose of s 3 of the Medicines and Poisons Act 2014 (WA).[10] Dexamphetamine is thus a 'drug of addiction' and a 'prohibited drug' for the purpose of the Misuse of Drugs Act.[11] Other than in limited respects, some of which are referred to below (see [56] below), the Misuse of Drugs Act does not differentiate between different prohibited drugs in fixing maximum penalties for offending.
[8] See, as at the time of the offending, Poisons Standard February 2021 (Cth) as made under the Therapeutic Goods Act 1989 (Cth). The term 'current Poisons Standard' is employed in reg 6 of the Medicines and Poisons Regulations 2016 (WA) and bears the meaning given in s 3(1) of the Therapeutic Goods Act. That, in turn, directs attention to s 52A of the Therapeutic Goods Act which refers to the document last prepared under s 52D(2)(b) of the Therapeutic Goods Act.
[9] As provided for in the 'classification' section to the Poisons Standard February 2021.
[10] See: Medicines and Poisons Act s 3, s 4(1); Medicines and Poisons Regulations reg 6 (item 7).
[11] Misuse of Drugs Act s 3 (par (a) of the definition of 'drug of addiction'), s 4(1)(a).
ENR v The State of Western Australia was the first time that this court had been asked to decide a sentence appeal relating only to dexamphetamine.[12]
[12] ENR v The State of Western Australia [13].
It was suggested, both before the sentencing judge in ENR and on appeal, that dexamphetamine was a less harmful drug than heroin, methylamphetamine and MDMA. This was because, unlike those drugs, dexamphetamine might be prescribed legally for therapeutic purposes and was manufactured to pharmaceutical standards. The court observed that, with one exception, the same maximum penalty applied to all offending under s 6(1) of the Misuse of Drugs Act,[13] ie there was no differentiation as between the various kinds of prohibited drugs. The court then referred extensively to its earlier decision in The State of Western Australia v Higgins.[14]
[13] ENR v The State of Western Australia [14]. That has since changed. There is now a higher maximum penalty for an offence under s 6(1) of the Misuse of Drugs Act where the prohibited drug involves a trafficable quantity of methylamphetamine: Misuse of Drugs Act s 34(1)(a). See also [56] below.
[14] The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302.
Prior to the decision in Higgins, the practice in Western Australia had been to take into account, as a relevant sentencing factor, a drug's relative degree of harm. In Higgins, a case involving MDMA, the State submitted that a harm-based assessment of a drug was an irrelevant consideration. Steytler P (McLure & Miller JJA agreeing) held that although a drug's relative harm to users was not a mandatorily irrelevant consideration, ordinarily it was not a factor to which much weight should or could be given.[15]
[15] The State of Western Australia v Higgins [102].
Steytler P stated that, when regard was had to various factors including, in particular, the uniform maximum penalties provided by the legislature:
[I]t is difficult to imagine that the legislature could have intended relative harm to be a matter of much significance for sentencing purposes. Even if the legislature had no opinion on that issue, for the reasons I have given it is difficult to see how the courts could make any reliable assessment of relative harm without the benefit of extensive evidence. Moreover, the assessment would endure only for so long as the evidence remained unchanged. The primary objective underpinning the legislation is undoubtedly that of deterring those who trade in drugs and that consideration has, as I have stressed, always been accorded the greatest weight when sentencing drug offenders.
In the end … the real question is what sentence should be imposed by the court in respect of the particular offence before it, having regard to the maximum penalty provided for that offence and taking into account the circumstances of the offence (including prevalence) and of the offender and the need to deter those who traffic in any form of illicit drugs.[16]
[16] The State of Western Australia v Higgins [106] - [107].
The court in ENR referred to those passages from Higgins with obvious approval.[17] The court also observed that:
1.While dexamphetamine is a prescription drug, its stimulant or mind-altering properties make it a potentially dangerous drug to those who abuse it, as reflected by the statutory penalty set by Parliament.[18]
2.There was no evidence before the court as to the precise extent of the illegal distribution of dexamphetamine in Western Australia. However, based on the experience of the court and the circumstances of the case, it was clear that there was an illicit market for the drug.[19]
3.Having regard to the potential dangers to health and the existence of a market for the illegal distribution of dexamphetamine, the seriousness of the offences of the kind committed in that case could not be underestimated.[20]
[17] ENR v The State of Western Australia [17].
[18] ENR v The State of Western Australia [22].
[19] ENR v The State of Western Australia [23].
[20] ENR v The State of Western Australia [24].
It follows from ENR that it should not be assumed that dexamphetamine is less serious because it may or may not be less harmful than other prohibited drugs. In any event, ordinarily, the relative harm caused by a prohibited drug is not a matter which can or should be given much weight.[21] Broadly speaking, with some exceptions, in fixing maximum penalties for offending Parliament has not distinguished between the various types of prohibited drugs such as to create a hierarchy. Two exceptions are: (1) cannabis - for which the maximum penalty is lower than all other prohibited drugs; and (2) trafficable quantities of methylamphetamine - for which the maximum penalty is life imprisonment.[22]
[21] The State of Western Australia v Higgins [102]; West v The State of Western Australia [2023] WASCA 3 [53].
[22] Monisse v The State of Western Australia [2021] WASCA 52 [73]; West v The State of Western Australia [53]. There is, however, differentiation in other ways. For example, different amounts are prescribed for different prohibited drugs for the purpose of determining the court for trial and whether there is a presumption of intent to sell or supply: Misuse of Drugs Act sch III, sch V. Also, some prohibited drugs - including dexamphetamine - are not mentioned as a drug in respect of which a drug trafficker declaration can be made based on the weight of the drug in a single offence: Misuse of Drugs Act sch VII.
Where Parliament has stated that dealings in certain specified drugs should attract the same maximum penalty, the court should respect Parliament's policy-based legislative direction: the court should not proceed on the basis that one of the specified drugs is less anti‑social than the others.[23]
[23] West v The State of Western Australia [55].
In sentencing the appellant there was no evidence before the sentencing court as to the relative harm of dexamphetamine. No attempt was made to establish that dexamphetamine was a less harmful drug than other prohibited drugs to which s 6(1) of the Misuse of Drugs Act applies.[24] Nor was there any evidence as to the extent of its illegal distribution in Western Australia. However, the appellant's then counsel explained before the sentencing judge, without challenge, that the appellant and her partner were using the dexamphetamine as a substitute for methylamphetamine, there being supply difficulties in obtaining methylamphetamine during the COVID-19 pandemic.[25] The appellant herself said much the same thing to the writer of the pre‑sentence report. Accordingly, it may be inferred that there continued to be an illicit market for dexamphetamine at the time of the appellant's offending.
[24] The appellant took the same position in the appeal: Appeal ts 2, 9.
[25] ts 14 - 15.
Before moving on from ENR something should be said about its usefulness as a comparable case in the present appeal.
Neither party suggested that ENR was of real assistance as a comparable case. We agree. A count of possession with intent to sell or supply in ENR attracted a sentence of 2 years' immediate imprisonment. However, the circumstances of the offending and the offender's personal circumstances were set out in a confidential memorandum. The published reasons in ENR do not reveal the quantity of dexamphetamine involved in that case. It is apparent, moreover, that there are distinguishing features between ENR and the present appeal. In ENR the offences were committed with a view to commercial gain (albeit a modest one). Also, there were two additional mitigating factors, personal to the offender, which were addressed in the confidential memorandum. There are no factors in the present case which warrant discussion in a confidential memorandum.
In ENR the court mentioned two other prior decisions where there had been sentences involving dexamphetamine.[26] They were not viewed as being useful as comparable cases in ENR and, for the same reasons as in ENR,[27] are of no assistance as comparable cases in the present appeal.
[26] CBA v The State of Western Australia [2013] WASCA 144; Dias v The State of Western Australia [2017] WASCA 49.
[27] ENR v The State of Western Australia [26] - [27].
The absence of directly comparable cases does not prevent the court from deciding that an individual sentence is manifestly excessive. It simply means that the court has no directly comparable cases to provide a yardstick. The question of manifest excess must be approached by reference to the maximum sentence for the relevant offence, the place which the offending conduct occupies on the scale of seriousness for offences of that kind and the personal circumstances of the offender.[28]
[28] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [38] - [39]; Gaskell v The State of Western Australia [23], [143].
One feature of the present appeal, much emphasised in the appellant's written and oral submissions, was the absence of any motive of commercial gain in relation to the offending the subject of count 1. So too the appellant relied on the circumstance that there was no intention to distribute the dexamphetamine into the community generally - the intent to supply was confined to an intent to supply the appellant's partner.
These matters are relevant. Where an offender possesses a prohibited drug without any intention to be involved in its distribution into the community generally, and is not motivated by the prospect of some commercial gain, the conduct is (all other things being equal) ordinarily to be regarded as a less serious example of offending of its kind. While relevant, this can only be taken so far. The seriousness of the offending is comparatively less than the seriousness of otherwise comparable drug offending where the intent is to distribute the prohibited drug into the community generally - in the latter case there is a greater potential for harm to be done to the community. But it will remain the case that the offender intended to distribute a prohibited drug to another or others. A distribution of this kind still puts at risk the health and wellbeing of those who are supplied with the drug. It also contributes to the demand for the drug, which in turn gives rise to the potential for other undesirable or illegal activities, such as the forging and uttering of prescriptions and doctor shopping. Further, while the dexamphetamine tablets were only to be given to the appellant's partner, it cannot be guaranteed that they would not be further distributed.
Disposition - Ground 1: Is the sentence of 3 years' immediate imprisonment on count 1 manifestly excessive?
The maximum sentence for an offence contrary to s 6(1)(a) of the Misuse of Drugs Act which does not involve a trafficable quantity of methylamphetamine is 25 years' imprisonment or a fine of $100,000 or both.
The appellant's offending was serious. It involved a substantial quantity of dexamphetamine. The amount of dexamphetamine the possession of which gives rise to a presumption of intention to sell or supply the same is 2 grams.[29] The appellant was in possession of 730 tablets weighing 145.38 grams. It is true that, in terms of the seriousness of the appellant's offending, the offending was not aggravated by any motive of commercial gain. Nor was there an intention to sell or supply the dexamphetamine into the community generally. These matters moderate the seriousness of the appellant's offending. It must, nevertheless, be appreciated that the significant quantity involved - and the stimulant and mind-altering properties of dexamphetamine - created a potential danger to the appellant's partner's health and wellbeing so far as the appellant accepted that she had an intention to supply her partner. The significant quantity of the dexamphetamine is a distinguishing feature of the present appeal when it is compared to the cases of Attenborough, Fenton and May as relied on by the appellant (those cases all involving much smaller quantities which put the offending at the lower end of the scale of seriousness of offences of this kind).[30]
[29] Misuse of Drugs Act s 11(a), sch V item 35.
[30] In Attenborough v The State of Western Australia the offender was in possession of 36 MDMA tablets (8.43 grams) purchased for the use of herself and her friends at an upcoming 21st birthday party; Fenton concerned 5.19 grams of methylamphetamine to be supplied to the offender's friends without charge; May concerned 14 grams of cocaine for the use of the offender and those within his close circle of friends who also used the drug.
The offending was not an aberration. It occurred in the context of the appellant's prior drug related offending and her simultaneous possession of methylamphetamine with intent to sell or supply. The appellant was in possession of the dexamphetamine for the use of herself and her partner as a substitute for methylamphetamine.
For the reasons as given in ENR, and further developed at [51] ‑ [58] above, it may not be assumed that dexamphetamine is less harmful than other prohibited drugs. It is impermissible to proceed on the basis that dexamphetamine is less anti-social than other prohibited drugs. The observations in ENR as summarised at [55] above continue to be authoritative.
There were mitigating factors. They were mentioned by the sentencing judge. We will restate the main mitigating factors. The appellant's plea of guilty was entered at an early opportunity; it resulted in a discount of 20 per cent pursuant to s 9AA of the Sentencing Act 1995 (WA). The appellant was remorseful. She had taken steps towards rehabilitation. The appellant had available protective factors which augured well for possible rehabilitation. Also, the appellant was gainfully employed and her character referees spoke well of her. But, despite past efforts at rehabilitation, prior incarceration for prior drug related offending and her upcoming sentencing, the appellant remained an occasional user of methylamphetamine. The sentencing judge concluded that the appellant's risk of reoffending was somewhere in the middle of the scale. The appellant was a mature woman. She was not otherwise of prior good character. By virtue of the appellant's prior incarceration for drug related offending she must have appreciated the likely punishment for offending of the kind that she was engaged in. Nevertheless, the appellant chose to commit count 1.
The sentencing judge, correctly in our view, considered that personal deterrence was a relevant sentencing factor. That conclusion was inevitable given the appellant's prior criminal history and earlier failed effort at rehabilitation. Despite the appellant's intentions she had continued to reoffend - the appellant had limited treatment gains and a continuing drug use problem. The necessity for personal deterrence was such that the personal circumstances of the appellant, while not irrelevant, could not be accorded much weight.
General deterrence was also a primary sentencing consideration (as it is with all offending of this kind).
Having regard to the facts of the offending, and taking into account the sentencing factors and other matters we have referred to, the sentence of 3 years' immediate imprisonment on count 1 was high. However, we are satisfied that it was not manifestly excessive. The seriousness of the appellant's offending should not be underestimated. While the appellant did not seek to profit, and there was no intent to sell or supply into the community generally, the quantity of dexamphetamine involved was such that the appellant's offending carried with it the real potential for harm. The sentencing judge correctly identified that it was necessary to give effect to the primary sentencing considerations of general and personal deterrence. In all the circumstances the sentence approached but did not exceed the upper limit of a sound exercise of the sentencing discretion. The sentence was not unreasonable or plainly unjust. Ground 1 fails.
The appellant should have leave to appeal on ground 1. The ground had a reasonable prospect of succeeding. However, for these reasons, we would dismiss ground 1.
Disposition - Ground 2: Does the total effective sentence of 3 years' immediate imprisonment infringe the first limb of the totality principle?
The dismissal of ground 1 has implications for ground 2.
We have concluded that the sentence imposed on count 1 is not manifestly excessive. The sentencing judge ordered that the sentences for counts 2 and 3 be served concurrently with the sentence for count 1. Accordingly, the total effective sentence for all of the offending - 3 years' immediate imprisonment - is the same as the sentence imposed on count 1. Put alternatively, the sentence on count 1 constitutes the entire total effective sentence.
Where the sentencing judge provided for concurrency across the three sentences it is not arguable that the total effective sentence of 3 years' immediate imprisonment (for the offending the subject of counts 1, 2 and 3) infringed the first limb of the totality principle so far as the individual sentence for the head sentence (ie count 1) is not manifestly excessive. The individual sentence for count 1 is not unreasonable or plainly unjust. All the more so the same total effective sentence, for the offending the subject of count 1 and additionally for the offending the subject of counts 2 and 3, is not unreasonable or plainly unjust. In evaluating whether the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences it is readily apparent that the effect of the individual head sentence on count 1 has been softened by the order that it and the sentences imposed on counts 2 and 3 be served concurrently.
Leave to appeal on ground 2 should be refused.
Conclusion and orders
The failure of grounds 1 and 2 means that the appeal must be dismissed.
After the appeal hearing, with leave, the appellant filed an application to adduce additional evidence on the appeal. The appellant sought to rely on having completed various rehabilitation programs in the event that the appeal is upheld and this court is to resentence. The circumstance that the appellant has completed the programs is to her credit. However, as the appellant has not established error in the sentence imposed, it does not fall to this court to resentence. The application to adduce additional evidence on the appeal must be dismissed.
We would make orders as follows:
1.The appellant's application in an appeal dated 11 April 2023 to adduce additional evidence in the appeal is dismissed.
2.The appellant has leave to appeal on ground 1.
3.Leave to appeal on ground 2 is refused.
4.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MD
Associate to the Honourable Justice Vaughan
29 JUNE 2023
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