Pickard v Dransfield - [1999] WASCA 90

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PICKARD -v- DRANSFIELD [1999] WASCA 90

CORAM: McKECHNIE J

HEARD: 16 JUNE 1999

DELIVERED : 16 JUNE 1999

FILE NO/S: SJA 1099 of 1999

BETWEEN: LEROY ADRIAN PICKARD
Appellant
AND
ANN MARIE DRANSFIELD
Respondent

Catchwords:

Criminal law - Sentence possession of cannabis with intent - Small time user dealer - Proper principles

Legislation:

Misuse of Drugs Act 1981 (WA)

Sentencing Act 1995 (WA)

Result:

Appeal allowed

Sentence varied

Representation:

Counsel:

Appellant: Mr R D Young
Respondent: Ms S L Melvold

Solicitors:

Appellant: Gunning
Respondent: State Director of Public Prosecutions

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

Bidwee v Robinson, unreported; SCt of WA (McKechnie J); Library No 990197; 19 April 1999
Kennedy v The Queen, unreported; CCA SCt of WA; Library No 980145; 3 April 1998

Case(s) also cited:

Applewaite (1996) 90 A Crim R 167
Jankovic v The Queen, unreported; CCA SCt of WA; Library No 950305; 24 May 1995
Mans v The Queen, unreported; CCA SCt of WA; Library No 9085; 1 October 1991
Tapley v The Queen, unreported; CCA SCt of WA; Library No 7519; 20 February 1989

McKECHNIE J:

Introduction

The appellant is a drug dealer. He may not like that description, but it is a consequence of his conviction for possession of cannabis with intent to sell or supply. The distribution and use of illicit substances, together with the consequent increase in crime and antisocial behaviour, presently constitutes the greatest threat to the peace and order of the Western Australian community. High level drug dealers depend upon lower level drug dealers, such as the appellant, to distribute the drugs through acquaintances.
I say "acquaintances" because drug users seldom have friends. The appellant and persons like him are an essential part of the operation. They are as essential as those who finance, grow, cultivate or harvest the crop.

The facts of the case

On 11 February 1999 the appellant was caught red‑handed.
The facts given by the prosecution were as follows: Police entered a house where they observed the appellant removing a small plastic bag from a wall unit in the dressing room of the premises.
Upon seeing police, the appellant ran from the dining room into the living room where another male person was standing. They were both restrained. As the appellant and the other person were apprehended, the appellant dropped four small bags containing approximately 1.2 grams of cannabis in the entry hall of the premises. The other male dropped a $50 note as he was being restrained. On securing the other occupants of the house the appellant was searched and located in the front right pocket of his jeans was a medium-sized plastic bag containing four small bags, each containing 0.3 grams of amphetamine.
The explanation advanced on the appellant's behalf was that he had purchased the cannabis for personal use, but a friend of a fellow boarder had asked if he could buy a bag of cannabis and he had agreed. However, by his plea he acknowledged that the whole of the amount seized was in his possession for the purpose of sell or supply. The prosecution accepted a plea of guilty to simple possession of the amphetamines.
The learned Stipendiary Magistrate remanded the appellant in custody for a pre‑sentence report, a copy of which I have read. On 1 June 1999 he sentenced the appellant to 4 months' imprisonment for possession of cannabis with intent and 1 month for possession of amphetamines. Last week the appellant sought leave to appeal and bail pending the appeal. Without granting leave, I adjourned the matter to today for full argument. In the event, I am able to determine the appeal.

The grounds of appeal

I propose to deal with the grounds in somewhat different order to the way in which they appear in the notice. Ground 2(b) says:
"The sentence of 4 months' imprisonment for possession with intent to sell or supply cannabis was inconsistent with the range of sentences commonly imposed."
In support of this submission counsel for the appellant has helpfully reviewed a number of authorities of the Court of Criminal Appeal, together with some sentences in the District Court. It is true that possession of larger amounts of cannabis than those under present consideration have sometimes been dealt with by way of a fine. These decisions are useful in understanding the range of penalties most commonly imposed. However, they may have limited relevance.
In Kennedy v The Queen, unreported; CCA SCt of WA; Library No 980145; 3 April 1998, the court clearly signalled that the range of such penalties is no longer a reliable guide. At 14, the Chief Justice said:
"It is also relevant that in the last few years the connection between the abuse of cannabis and progression to more dangerous drugs has become clearer so that the seriousness of the threat which the trade in cannabis poses is more keenly appreciated than it was, say, five years ago. Consequently, sentences imposed five to 10 years ago can no longer be regarded as a reliable guide."
Counsel also pointed to the modest fines imposed for simple possession of cannabis. Those fines are set out in the case of Bidwee v Robinson, unreported; SCt of WA (McKechnie J); Library No 990197; 19 April 1999. There is a great difference between the offence of simple possession and the offence of possession with intent. The latter offence is significantly more serious and has been regarded as such by Parliament. Of course users are, as here, often also dealers.
This case is not the occasion to review the approach to sentencing low level drug dealers. However, those persons should be put on notice that they may not in the future necessarily expect to be treated with leniency. The appellant and those like him deal in drugs. Dealing for profit is an aggravating circumstance. Lack of profit provides no mitigation. For present purposes it is enough to say that an unsuspended sentence of 4 months for possession of 6.3 grams is inconsistent with other sentences commonly imposed, notwithstanding the difficulties of comparison between cases and notwithstanding their limited reliability for the future.
Ground 2(a) reads:
"The learned Magistrate erred in concluding that imprisonment was the only appropriate disposition having regard to the appellant's youth, the small amount of drugs involved and the material in the pre‑sentence report."
The appellant has a disturbing record for a 22‑year‑old. At the time of these offences he was on parole for armed robbery. The Magistrate detailed the appellant's record, commencing by saying:
"… You have been subject to every available technique to try and get you to do just one simple thing, which is to stop breaking the law."
The Magistrate made the point that the appellant was not being dealt with on the basis of his record, but on the basis of the present offences. That is in accordance with the Sentencing Act, s 7(2)b. There is some force in the appellant's submission that the Magistrate placed too much emphasis on the record. Certainly, the bulk of his sentencing remarks dealt with it. However, I am not prepared to find that the Magistrate misused the record in the light of his comments which limited the relevance of the record to the lack of an available discount from a proper penalty.
In the end the question to be answered is always that posed by the Sentencing Act, s 6(4), namely: Is the seriousness of the offence such that only imprisonment can be justified? The Magistrate did not directly answer that question except perhaps insofar as actually imposing a sentence of imprisonment. What he said at the commencement of his reasons was:
"We'll assume for the moment it was given to you. Most drugs come from dealers, amphetamine in particular, so that if there's a supply of drugs there has originally been a purchase of drugs and it just keeps the cycle rolling on, a cycle which is of major concern to members of the community because there are numerous people who cite drug use and abuse as the reason why they commit crime against law‑abiding, tax‑paying citizens in the community.
It has reached the point where drug‑related crime is so common that the community is sick to death of the excuse which is trotted out so regularly that, 'You should treat me differently. I have a drug problem'. Cases have been cited to me dealing with sentences that were imposed in relation to various other drug dealers. Each case turns on its own circumstances."
I respectfully agree with his Worship's comments. They are undoubtedly correct. They do not, however, provide a full answer to the question why imprisonment was imposed in this case, having regard to the quantity of the drug and other circumstances. Before actually imposing his sentence he said:
"All I am trying to paint is a picture of someone who, at 22 years of age, has a substantial history of criminal offending including an extremely serious appearance in the Supreme Court. You were on parole at the time and you were involved in selling drugs. In my view it is incumbent upon the court to send a message to those who are involved in the selling of drugs for profit that it is a serious offence that is going to carry heavy consequences. It is both a general and a specific deterrent to impose penalties of that kind."
In my view, the Magistrate's sentencing discretion miscarried. Accepting all that he said, nevertheless he does appear to have overlooked the actual circumstances of the offence and paid insufficient attention to the relative youth of the appellant and the possibility of rehabilitation. These factors have a relevance and a weight in the sentencing process by reason of the Sentencing Act, as do the factors of general deterrence to which the Magistrate referred.
In my view, serious though the offence is, it does not justify an immediate term of imprisonment as the only disposition. Furthermore, the Magistrate appears to have overlooked the fact that possession of amphetamines was simple possession only and that offence did not justify imprisonment of 1 month. Consequently, I uphold this ground of appeal.
Ground 2(iii) reads:
"The learned Magistrate failed to have regard to the totality principle in that a custodial sentence would lead to a breach of parole."
I do not consider that the totality principle has much to do with the circumstances of this case. If a consequence of the imposition of a sentence is that an offender on parole is returned to prison to complete his or her sentence, then there is little application for the provision of the totality principle. The privilege granted by parole is to serve a portion of the sentence within the community on condition that the offender remains generally law‑abiding.
The totality principle is designed to prevent injustice or to assist rehabilitation. In the present circumstances if imprisonment had been appropriate, I do not consider that the totality principle would have acted to prevent the sentence being imposed because the consequent cancellation of the parole would not amount to an injustice requiring correction.

Resolution of the appeal

For the reason expressed, I allow the appeal. The appellant has been in custody since 10 May 1999, roughly equivalent to a fine of $1,850, if that fine were unpaid and he had to cut out the time in custody. Had I been sentencing the appellant, I would have considered either an intensive supervision order or a suspended sentence of imprisonment. I regard the offence as approaching the range where imprisonment should be imposed, but I am not satisfied that an immediate sentence of imprisonment was necessary.
In view of the time which the appellant has already served in prison, however, I do not consider that I should impose any different penalty. I propose therefore to set aside the sentences imposed and make no further order. If this creates difficulty, the matter can be relisted. If it creates significant difficulty, I will impose a nominal fine. The difficulty has been brought about as an unintended consequence of the Sentencing Act which prohibits courts from imposing a sentence of less than 3 months.
Normally, the easiest resolution of this appeal would be to reduce the sentence of imprisonment until today. However, I believe I am unable to do that. I cannot use the provisions of the Sentencing Act s 46 to impose no sentence because the offence is clearly not trivial within that section. Having said all that, it seems to me wrong in principle to impose a fine when I am satisfied that the appellant has been sufficiently punished and so I propose simply to set aside the term of imprisonment, but leave either party liberty to apply should that course create difficulty.