Staiger v The State of Western Australia - [2020] WASCA 99

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   STAIGER -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 99
CORAM:   BUSS P
MITCHELL JA

HEARD:   16 JUNE 2020
DELIVERED          :   23 JUNE 2020
FILE NO/S:   CACR 23 of 2020
BETWEEN:   PETER COLIN STAIGER
Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   QUAIL DCJ
File Number            :   IND 1014 of 2019

Catchwords:

Criminal law - Sentencing - Drug offences - Possession of methylamphetamine with intent to sell or supply to another person - Whether sentencing judge failed to take relevant sentencing factors into account - Whether sentences manifestly excessive - Whether total effective sentence infringes the first limb of the totality principle

Legislation:

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

Result:

Leave to appeal refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

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

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

Dinh v The State of Western Australia [2019] WASCA 167
Kabambi v The State of Western Australia [2019] WASCA 44
The State of Western Australia v Delaney [2020] WASCA 93

JUDGMENT OF THE COURT:

The appellant seeks leave to appeal against a total effective sentence of 3 years 8 months' immediate imprisonment, imposed for two counts of possession of methylamphetamine with intent to sell or supply to another.
Count 1 concerns the possession of a total of 6.83 g of methylamphetamine found in various locations in the appellant's bedroom during a search of his South Lake residence by police on 14 June 2018. The sentencing judge found that the appellant was a heavy methylamphetamine user at this time, and that the drugs were predominantly for his personal use. However, he would supply it, in terms of sharing it, with others. The sentencing judge found that there was also a 'small element of commerciality' in that the appellant was dealing 'very much at a retail user, drug user level, in order to cover the costs of [his] own sale, not to make a profit'.[1] The appellant received a sentence of 8 months' immediate imprisonment (reduced from 1 year for totality) in respect of count 1.
[1] Sentencing ts 78.
Count 2 concerns the possession of a total of 29.51 g of methylamphetamine found by police on 28 July 2018, when the appellant was on bail in respect of count 1. About 28 g, or an ounce, with a purity of 77% was found in a ball of electrical tape located in a satchel strapped to the appellant's leg as he rode a motorcycle in South Lake. A further 0.72 g was found with a glass smoking pipe in the saddlebag of the motorcycle. A later search of the appellant's residence located a further 1.15 g of methylamphetamine in a bedside drawer. The sentencing judge sentenced the appellant on the basis that the majority of the drug was for the appellant's personal use, but he would occasionally supply drugs, and also sell drugs in order to try to recoup some of the costs of his own methylamphetamine habit. The appellant received a sentence of 3 years' immediate imprisonment (reduced from 3 years 6 months for totality) in respect of count 2.
The appellant was 50 years old at the time of sentencing. He had a good upbringing in New Zealand, and had a productive working life. He had served in the Navy and, for many years since moving to Western Australia in 2005, had managed a bar. He suffered significant depression following financial difficulties in his business when he was the victim of fraud or theft, the breakdown of his marriage and an injury suffered in a skateboard accident. His methylamphetamine dependence followed use of that drug in an attempt to self-medicate his depression. After his arrest, the appellant sought treatment to address his mental health issues, resulting in a significant improvement in his mental health. The appellant had no significant prior criminal record.
The appellant pleaded guilty, although not at the first reasonable opportunity. He received a discount of 15% in respect of count 1 and 20% in respect of count 2, under s 9AA of the Sentencing Act 1995 (WA). Notwithstanding that the appellant lied to police about not knowing of the existence of the approximately 28 g of methylamphetamine in his satchel, the sentencing judge also gave the appellant credit for 'some very minimal cooperation with police'. The sentencing judge also recognised that the fact that the appellant was on bail in respect of count 1 at the time of committing count 2 was a significant aggravating factor for count 2.
The sentencing judge reduced the sentence imposed for each count for totality and ordered that the sentences be served cumulatively, resulting in a total effective sentence of 3 years 8 months' immediate imprisonment. The sentence was backdated to 26 June 2019 to take account of time spent in custody on remand. The appellant was made eligible for parole.
The appellant seeks leave to appeal against his sentence on two grounds.
Ground 1 contends that the sentencing judge failed to consider the fact that the appellant suffered from a major depressive disorder at the time of the offending. There is no merit in that ground. The sentencing judge made extensive reference to the psychiatric report of Dr Hall, the diagnoses of depression when the appellant attended the Alma Street clinic in March 2019, and the improvement in the appellant's mental health since his arrest.[2] The sentencing judge expressly took the appellant's mental health condition into account in arriving at the appropriate sentences, and cannot be said to have failed to give appropriate weight to that sentencing consideration. In any event, as this court has observed on many occasions, a failure to give adequate weight to a relevant consideration only gives rise to an appealable error if it amounts to a failure to exercise the discretion actually entrusted to the court.[3]
[2] Sentencing ts 80 - 83.
[3] See, for example, Kirby v The State of Western Australia [2016] WASCA 199 [43].
One aspect of Dr Hall's report, which the sentencing judge described as 'unfortunately worded',[4] was expressed in the following terms:
Mr Staiger had an entrenched methamphetamine dependence. Whether or not he was dealing drugs, it is arguable that his case primarily reflects a medical issue more than a lifestyle or criminal one in that it is likely that he would not have used methamphetamine let alone become depressed beforehand had he not been subject to the severe stress that he was from around 2012. Similarly, he is unlikely to have developed methamphetamine dependence to the extent that he did had his depression been adequately treated in the first place.
[4] Sentencing ts 83.
The sentencing judge indicated that he did not accept this passage insofar as it might suggest that there was some sound medical reason to turn to methylamphetamine. The sentencing judge went on to observe:[5]
I understand how you went there. But your psychological - your mental health did not drive you there in that sense. That was a choice that you made at that point because you were resistant and not using the treatment that normally would be used. All right. So in that sense, it's not causative.
But this is not something that happened - your methylamphetamine use, I accept, is not something that happened in a vacuum. It is something that happened as your response to those circumstances that you were in at the time, albeit that it involved poor choices by you.
[5] Sentencing ts 83.
The sentencing judge was correct to conclude that a mental health disorder could not be regarded as causative of the offences of possession of methylamphetamine with intent to sell or supply it to another. No error has been revealed in his Honour's approach in that regard.
Ground 2 contends that the 'total sentence was manifestly excessive' having regard to the mental health issues noted above, the lack of any significant criminal record and the effect of imprisonment on the appellant's mental health condition. The appellant contends that an intensive supervision order would have been appropriate to enable him to continue treatment in the Alma Street clinic. We will treat this ground as contending that the individual sentences were manifestly excessive as to type and length, and that the total effective sentence infringed the first limb of the totality principle.
Ground 2 asserts inferred error. The principles governing the determination of sentencing appeals on the ground of inferred error are well established and need not be repeated here.[6]
[6] See, for example, Kabambi v The State of Western Australia [2019] WASCA 44 [21].
There is no merit in the submission that the appellant ought to have received a sentence type other than immediate imprisonment. It is well established that generally, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for serious drug offences. The major sentencing considerations for offences of dealing or trafficking in dangerous drugs are general and personal deterrence. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. The question for this court on appeal is whether it was reasonably open for the sentencing judge to conclude that sentencing options other than immediate imprisonment were inappropriate in the circumstances of the particular case.[7]
[7] See the discussion in Dinh v The State of Western Australia [2019] WASCA 167 [27] - [31].
There was nothing in the particular circumstances of this case which could arguably make an intensive supervision order, or a suspended or conditionally suspended sentence of imprisonment, appropriate sentencing options. The sentencing judge's conclusion that sentences of immediate imprisonment were the only appropriate sentencing option was plainly correct. It would not have been open to the sentencing judge to have imposed sentences other than immediate imprisonment for these offences.
Further, having regard to:
(1)the maximum penalties (25 years' imprisonment for count 1 and life imprisonment for count 2);
(2)the customary sentencing standards for this kind of offending;[8]
(3)the circumstances of the appellant's offending (including the quantities of methylamphetamine the subject of count 2 and the fact that count 2 was committed while on bail for a serious drug offence);
(4)the appellant's personal circumstances; and
(5)the mitigating factors,
it is not reasonably arguable that either the individual sentences or the total effective sentence were so long as to be unreasonable or plainly unjust. It cannot arguably be inferred that the sentencing judge erred by imposing sentences longer than those which were commensurate with the seriousness of the appellant's offending.
[8] As to which see, for example, The State of Western Australia v Delaney [2020] WASCA 93 [24] - [33].
As neither ground of appeal is reasonably arguable, leave to appeal should be refused on both grounds 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.
MT
Research Orderly to the Honourable Justice Mitchell
23 JUNE 2020