Pearman v The State of Western Australia

[2021] WASCA 106

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   PEARMAN -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 106

CORAM:   BUSS P

MITCHELL JA

HEARD:   15 JUNE 2021

DELIVERED          :   22 JUNE 2021

FILE NO/S:   CACR 30 of 2021

BETWEEN:   LUCY ELIZABETH PEARMAN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   LONSDALE DCJ

File Number            :   IND 612 OF 2020

Catchwords:

Criminal law - Sentencing - Drug offences - Whether sentence of 2 years 4 months' immediate imprisonment for possession of 13.38 g of methylamphetamine with intent to sell or supply it to another is manifestly excessive

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Result:

Leave to appeal refused
Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant	:	A E Monisse
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Italiano v The State of Western Australia [2020] WASCA 115

Kabambi v The State of Western Australia [2019] WASCA 44

Nguyen v The State of Western Australia [2019] WASCA 56

Wellstead v The State of Western Australia [2019] WASCA 130

JUDGMENT OF THE COURT:

1. On 3 September 2020, the appellant was convicted of one count of possession of a prohibited drug, namely 13.38 g of methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). On the same day, she was convicted of one count of possession of a sum of money ($2,280) that was reasonably suspected of being unlawfully obtained, contrary to s 417 of the Criminal Code (WA).

2. The appellant was sentenced for these offences on 10 November 2020.  She was sentenced to 2 years 4 months' immediate imprisonment for the drug offence.  A concurrent sentence of 6 months' immediate imprisonment was imposed for the unlawful possession offence.  The sentences were backdated to 22 June 2020 to take account of time spent in custody on remand.  The appellant was made eligible for parole.

3. The appellant now seeks leave to appeal against her sentences on the sole ground that the sentence for the drug offence was manifestly excessive.

4. The offending was detected when police pulled over and searched a vehicle, of which the appellant was the only occupant, in Carlisle at about 12.30 am on 2 January 2018.  The methylamphetamine was located in two clip-seal bags in a purse which was in a bag belonging to the appellant.  Police also located the $2,280 in cash, which the appellant ultimately accepted was the proceeds of drug dealing.  Police located other indicia of drug dealing in the vehicle (empty clip-seal bags, electronic scales, measuring straws, a 'tick list' and a mobile phone with messages evidencing the sale of illicit drugs).  The appellant had been selling drugs to a circle of people known to her, in order to fund her own drug habit, for a number of previous months.

5. The appellant entered a relatively late plea of guilty, for which she received a discount of 10% under s 9AA of the Sentencing Act 1995 (WA). The sentencing judge found that the appellant accepted responsibility for her offending, was remorseful and wished to mend her ways.

6. The appellant was 34 years old at the date of sentence.  She emigrated from the United Kingdom to Australia with her parents when she was 17 years old.  She had completed the equivalent of year 10 in high school.  The appellant had worked in various low-level positions, but her drug use had affected her capacity to work for some time prior to sentencing.  She had two sons, aged 10 and 13 years at the date of sentencing, with whom she had no or limited contact.  The appellant's drug use had led to her becoming estranged from other family members at the time of sentence.

7. The appellant had a number of chronic mental health challenges, and had experienced a number of traumatic events described in a psychological report before the sentencing judge.  She was an emotionally vulnerable woman who used drugs as a negative coping strategy.  She had a modest criminal record of offending for which she had received fines.  With the exception of a speeding offence, the appellant's last offending prior to 2018 was in October 2006 (when she committed an aggravated home burglary and stealing offence).

8. The general principles governing appeals on the ground of manifest excess are well established, and were summarised in Kabambi v The State of Western Australia.[1]  In our view, it is not reasonably arguable that error should be inferred in the present case on the basis that the sentence for the drug offence is unreasonable or plainly unjust.

   [1] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

9. The sentence imposed on the appellant was less than 10% of the available maximum penalty of 25 years' imprisonment. The offending conduct was not isolated, but rather was part of an ongoing course of selling methylamphetamine for profit. While the appellant pleaded guilty, the plea was late and attracted only a 10% discount under s 9AA of the Sentencing Act. 

10. While there were other mitigating factors arising from the appellant's personal circumstances, the significance of personal and general deterrence as predominant sentencing considerations means that less weight is to be given to those factors.  As this court has repeatedly observed (including in Nguyen v The State of Western Australia, referred to in the appellant's submissions):[2]

    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.  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.

    [2] Nguyen v The State of Western Australia [2019] WASCA 56 [22].

11. In addition, the appellant did not have the benefit of mitigating factors such as youth or prior good character.

12. Given the general sentencing principles as to the appropriate type of sentences for serious drug offences, discussed in Nguyen, the conclusion that a term of immediate imprisonment was the only appropriate sentence was inevitable in the present case.  Nor can it reasonably be argued that the length of the sentence imposed in this case was not broadly consistent with customary sentencing standards for offending of this kind.[3]

    [3] Reflected in Nguyen and cases cited at [39] of that decision and Italiano v The State of Western Australia [2020] WASCA 115.

13. The appellant's case also refers to a letter which she had written, but which was not available to hand up to the sentencing judge.  By application in an appeal filed on 8 June 2021, the appellant seeks leave to adduce additional evidence in the appeal.  The additional evidence is an affidavit affirmed by the appellant on 4 May 2021, which attaches the letter to the sentencing judge and describes her unsuccessful attempts to send the letter to her legal advisers from prison.  In that letter, the appellant attributed her drug use to her attempt to cope with family estrangement and domestic violence to which she had been subjected. 

14. For the following reasons, there is no merit in the submission related to the letter. 

15. First, the submission relating to the letter stands outside the scope of the ground of appeal, which asserts inferred error.  While this problem could be cured by an amendment to the ground of appeal, the following additional matters indicate that any grant of leave to amend would be futile.

16. Secondly, the sentencing judge did not err by failing to have regard to material not placed before the sentencing court.  Nor is it arguable that any miscarriage of justice arose from the absence of material before the sentencing court that was known to the appellant at the time of sentencing.[4]  Even if the appellant had difficulty in sending the letter to her lawyers, she does not depose that she was unable to give oral instructions to her sentencing counsel as to the matters contained in the letter.

    [4] See Wellstead v The State of Western Australia [2019] WASCA 130 [96].

17. Thirdly, and in any event, the psychological report that was before the court referred to the appellant being subjected to domestic violence, and that the appellant acknowledged that her use of drugs was a negative coping strategy for her difficult emotional states.[5]  The issue was referred to by the appellant's sentencing counsel.[6]  The report was referred to by the sentencing judge,[7] who observed:[8]

    You are described as somebody who is emotionally vulnerable and someone who has endured challenges from your childhood such as domestic violence, poor maternal attachment, sibling and peer bullying and physical and emotional and sexual victimisation.  So it is apparent that you have used drugs as a negative coping strategy and you have chronic mental health challenges. (emphasis added)

    [5] Page 4 of the psychological report.

    [6] Primary ts 88 - 89.

    [7] Primary ts 93 - 94.

    [8] Primary ts 94.

18. It is not reasonably arguable that the absence of the appellant's letter before the sentencing judge might have affected the sentence which her Honour imposed.  Her Honour appreciated and took into account the appellant's use of drugs as a negative coping strategy, which was the essential point of the letter.

19. Fourthly, in our view it is not reasonably arguable that a different sentence should have been imposed for the purposes of s 31(4)(a) of the Criminal Appeals Act 2004 (WA). The sentence imposed by the sentencing judge is a moderate sentence, even taking account of the contents of the appellant's letter, as well as all the other material before the sentencing judge and all relevant sentencing principles. In all the circumstances of this case, it is not reasonably arguable that a sentence of less than 2 years 4 months' immediate imprisonment would be commensurate with the seriousness of the drug offence of which the appellant was convicted.

20. For the above reasons, the sole ground of appeal has no reasonable prospect of succeeding.  Leave to appeal should be refused and the appeal should be dismissed.

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

JB

Associate to the Honourable Justice Mitchell

22 JUNE 2021