Tairi v Director of Public Prosecutions for Western Australia
[2023] WASC 287
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: TAIRI -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 287
CORAM: FORRESTER J
HEARD: 20 JULY 2023
DELIVERED : 1 AUGUST 2023
FILE NO/S: SJA 1043 of 2023
BETWEEN: DOMINIC TE MANAKI TAIRI
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No: SJA 1043 of 2023
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S MALLEY
File Number : RO 6386-7 of 2022 & RO 6392 of 2022
Catchwords:
Criminal law - Single judge appeal - Appeal against sentence - Whether magistrate sentenced twice for common element between offences - Whether magistrate failed to consider parole eligibility - Whether sentence imposed breached totality principle
Legislation:
Bail Act 1982 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Code
Criminal Procedure Rules 2005 (WA)
Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA)
Weapons Act 1999 (WA)
Result:
Leave to appeal granted on grounds 2 and 3
Appeal allowed in relation to ground 2
Sentence imposed by the learned magistrate on 28 April 2023 set aside
Appellant resentenced
Appellant made eligible for parole
Category: B
Representation:
Counsel:
| Appellant | : | N R Sinton |
| Respondent | : | R P Arndt |
Solicitors:
| Appellant | : | Legal Aid WA |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Apkarian v The State of Western Australia [2015] WASCA 67
Bailey v The State of Western Australia [2016] WASCA 10
Crichton v The State of Western Australia [2014] WASCA 37
Donaldson v The State of Western Australia [2020] WASCA 193
Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259
Golding v Gaunt [2020] WASC 361
Gomboc v The State of Western Australia [2023] WASCA 115
Goodwin v The State of Western Australia [2017] WASCA 184
Hayter v Thomson [2020] WASC 194
Hickling v The State of Western Australia [2016] WASCA 124
House v R [1936] HCA 40; (1936) 55 CLR 499
Jones v The State of Western Australia [2018] WASCA 105
Kabambi v The State of Western Australia [2019] WASCA 44
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
Moody v French [2008] WASCA 67
Ness v The State of Western Australia [2013] WASCA 56
Pacini v Bradley [2021] WASC 179
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Pennetta v The State of Western Australia [2013] WASCA 234
Penny v The State of Western Australia [2006] WASCA 173; (2007) 33 WAR 48
Pickett v The State of Western Australia [2004] WASCA 291
Rundle v Innerd [2015] WASC 340
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Baldini [2015] WASCA 39
The State of Western Australia v Johnson [2010] WASCA 187
Truscott v The State of Western Australia [2016] WASCA 58
Vince v Martyn [2013] WASC 60
FORRESTER J:
Introduction
On 28 April 2023, the appellant was convicted on his own pleas of guilty in the Rockingham Magistrates Court of the following offences, and sentenced to a total effective sentence of 15 months' imprisonment as set out below:
Charge No.
Offence
Sentence
RO 6392/2022
Possession of a prohibited drug with intent to sell or supply (methylamphetamine) (s 6(1)(a) Misuse of Drugs Act 1981 (WA))
9 months' imprisonment (head sentence)
RO 6386/2022
Having ready access to both weapons and illegal drugs (s 68E(2) Criminal Code)
6 months' imprisonment (cumulative)
RO 6387/2022
Possession of stolen or unlawfully obtained property, namely $400 cash (s 417(1) Criminal Code)
3 months' imprisonment (concurrent)
RO 6388/2022
Possessed a controlled weapon (s 7 Weapons Act 1999 (WA))
No penalty (s 11)
RO 6389/2022
Possessed a prohibited weapon (s 6 Weapons Act)
No penalty (s 11)
RO 6390/2022
Possessed a prohibited weapon (s 6 Weapons Act)
No penalty (s 11)
RO 6391/2022
Possessed drug paraphernalia (s 7B(6) Misuse of Drugs Act)
$400 fine
RO 6542/2022
Breach of bail undertaking (s 51(1) Bail Act 1982 (WA))
$500 fine
An order was made for the destruction of the drugs and weapons. No order was made for parole eligibility.
By appeal notice filed 22 May 2023, the appellant applies for leave to appeal against the sentences of imprisonment for charges RO 6386‑7/2022 and RO 6392/2022.
On 15 June 2023, a registrar of this court made an urgent appeal order, pursuant to the Criminal Procedure Rules 2005 (WA).
The facts
On 7 December 2022, police arrested the appellant in a carpark from the driver's side of a vehicle. The vehicle was searched under the provisions of the Misuse of Drugs Act 1981 (WA) (MDA). Two small clip seal bags containing a total of 0.56g of methylamphetamine were located in the compartment next to the steering wheel.
The appellant's mobile phone was located on the driver's seat. Police conducted a search of the mobile phone's contents under provisions of the MDA. Various messages relating to the sale of methylamphetamine on a variety of messaging applications were located.
Also found in the car under the driver's seat were knuckle dusters, capsicum spray and an extendable baton, as well as $400 cash in the driver's side door.
The respondent participated in a record of interview and made full admissions to being in possession of the methylamphetamine, the mobile phone, the cash and the weapons.
Plea in mitigation
Counsel for the appellant pointed to the accused's lack of criminal history in relation to drugs, and the fact that the majority of it was traffic related. He submitted that the offending was effectively the appellant's 'first real interaction with methylamphetamine use'.
The appellant had recently lost his job, become depressed, and engaged in an association with a negative peer, who was present at the time of the offending. The appellant had been using small quantities for a few months before his arrest.
The appellant had ended the association with his negative peer and his drug use following his arrest. He had fly-in, fly-out work and was being subjected to random urinalysis.
It was submitted that the appellant was a good prospect of rehabilitation. Any delay in the plea of guilty was as a result of establishing the weight of the methylamphetamine and attempts to negotiate an alternative charge. Ultimately, it was submitted that imprisonment was not appropriate but, if the learned magistrate formed a different view, any term should be suspended.
Sentencing reasons
In sentencing the appellant, the magistrate stated the following:[1]
… In relation to the prohibited weapons, there's three of them. In my view, they're part of the ready access to weapons and drugs, so I'm going to section 11 on those. That leaves the access to weapons, possession of unlawfully obtained property and possession of drugs with intent. That's where you run into problems, [the appellant].
You're dealing in hardcore drugs. You are peddling misery. A lot of my clientele in here are here because people like you are supplying them, and what they're doing is in order to facilitate buying it off you, they go out and do burglaries, they go out and steal, they get involved in violence for various reasons. You – so you're the facilitator.
So that's your problem, and that's my problem, because I – the decisions on sell and supply drugs and the amount of quantity is not all of huge significance because people don't necessarily carry around huge amounts if they're dealing with it; they carry smaller amounts.
[1] Transcript, Western Australia Police v Dominic Te Manaki Tairi, Magistrates Court of Western Australia, 28 April 2023, 5 - 6 (Transcript, 28 April 2023).
His Honour then read aloud a passage from The State of Western Australia v Baldini[2] in which McLure P (with whom Buss[3] and Mazza JJA agreed) repeated observations her Honour made in The State of Western Australia v Johnson[4] as to the significant weight required to be given to general deterrence in sentencing offenders for offences under s 6(1) of the MDA and the consequence that mitigating circumstances personal to the offender are accorded less weight. The learned magistrate concluded with the following quotation from McLure P's judgment in Baldini:[5]
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.
[2] The State of Western Australia v Baldini [2015] WASCA 39 [23].
[3] As his Honour then was.
[4] The State of Western Australia v Johnson [2010] WASCA 187 [16] - [17], [23], [25].
[5] Transcript, 28 April 2023, 6 - 7; Baldini [25].
The learned magistrate then said:
And I've got to send a message. It's absolutely essential that people know if you're going to deal in hard drugs and, you know, you're going to go round with weapons – you don't carry knuckledusters and things of that nature round with you just because, you know …
At this point, the appellant interrupted the sentencing remarks to clarify that the weapons were in his car. His Honour acknowledged that, and continued:[6]
In my view, a term of imprisonment is appropriate. In relation to - the head sentence will be in relation to the possession with intent. That will be 12 months down to nine, 9AA. In relation to having ready access, it will be eight months down to six and that will be cumulative. In relation to the possession of stolen property, four down to three. In my view, the terms should be served immediately. There's an order for destruction of the drugs, weapons. Yes. That's - so it's 15 months immediate imprisonment, [the appellant]. Thank you.
[6] Transcript, 28 April 2023, 7.
Statutory framework and legal principles
The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CA Act). A sentence imposed as a result of a conviction is a decision which may be appealed.[7]
[7] CA Act s 6(f) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding,[8] meaning that the ground is required to have a rational and logical prospect of succeeding.[9] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[10]
[8] CA Act s 9(2).
[9] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[10] CA Act s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[11]
[11] CA Act s 14(2).
An appellate court may not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised its discretion in a different manner. It must be shown that the sentencing judge has made an error in exercising his or her discretion.[12]
[12] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; House v R [1936] HCA 40; (1936) 55 CLR 499.
Grounds of appeal
The grounds of appeal are:
(1)The learned sentencing magistrate erred in law by imposing a sentence for RO 6386/22 having ready access to both weapons and illegal drugs that was wholly cumulative on the sentence imposed for RO 6392/22 possession of methylamphetamine with intent to sell or supply, and not otherwise moderated in recognition of the fact that possession of methylamphetamine was an element common to both offences.
(2)The learned sentencing magistrate erred in law by failing to consider whether to order that the appellant be made eligible for parole.
(3)The learned sentencing magistrate erred in imposing a sentence that was disproportionate to the appellant's offending conduct, having regard to all the circumstances including those referable to the appellant personally.
It is convenient to consider ground 2 first.
Ground 2
Submissions
By ground 2, the appellant claims the learned magistrate erred by failing to consider whether or not to make the appellant eligible for parole.
The learned magistrate did not, in sentencing the appellant to the term of imprisonment, refer to the issue of parole eligibility at all. In the circumstances of this case, the respondent concedes that that omission demonstrates error.
Disposition
A court sentencing an offender to a fixed term of imprisonment may make a parole eligibility order.[13] Some circumstances preclude the making of a parole eligibility order, but no such circumstances exist in this case.
[13] Sentencing Act 1995 (WA) s 89(1).
Section 89(4) of the Sentencing Act 1995 (WA) states:
A court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least one of the following 4 factors —
(a)the offence is serious;
(b)the offender has a significant criminal record;
(c)the offender, when released from custody under a release order made previously, did not comply with the order;
(d)any other reason the court considers relevant.
In Moody v French,[14] the majority said, of the proper construction of s 89:
Section 89(1) gives to the court a power to order that an offender be eligible for parole. However, that section must be read with s 89(4), which provides that a court may decide not to make a parole eligibility order if it considers that the offender should not be eligible for parole because of at least two of the four factors identified in that section. Accordingly, the word 'may' in s 89(1) is merely used to confer a power which is to be exercised in accordance with the provisions of s 89(4).
The combined effect of those subsections is that the court is required to make a parole eligibility order if only one or none of the four factors identified is present. The preponderance of authority reflects this by holding that the court's discretion whether or not to make a parole eligibility order is enlivened only if two or more of the four factors identified in s 89(4) are present.
[14] Moody v French [2008] WASCA 67 [47] - [48] (citations omitted).
At the time Moody was decided, s 89(4) of the Sentencing Act provided that at least two of the factors in (a) to (d) were required to enliven the discretion. The section was amended on 1 July 2017 such that only one factor need be present before the discretion to refuse eligibility for parole was enlivened. However, subject to that modification, the principle in Moody continues to apply.
There was nothing before the learned magistrate which suggested that any of the factors in s 89(4) were present. There was, therefore, no apparent basis upon which parole eligibility would properly be refused. That is particularly so in circumstances in which this was the first sentence of immediate imprisonment ever imposed on the appellant.
Further, as Hall J observed in Vince v Martyn,[15] a decision not to make a parole eligibility order is one of significance that will almost invariably require an express consideration of both the statutory factors in s 89(4) and any other factors that may militate for or against such an order.
[15] Vince v Martyn [2013] WASC 60 [23].
In those circumstances, the only available conclusion is that the learned magistrate overlooked the matter of parole eligibility. The respondent's concession was appropriately made.
Ground 2 has been made out.
Consequence of decision on ground 2
An issue then arises as to what flows from the decision that ground 2 has been made out.
The parties did not suggest that the error in this case was not material. However, a question arose as to whether a parole eligibility order is part of the sentence imposed on the appellant. The respondent submitted that it was not; that it is an order made after the sentence has been determined.[16]
[16] Respondent's submissions filed 17 July 2023 [28].
If the error made by the learned magistrate is a material error as to sentence, I am required to exercise the sentencing discretion afresh, even if I dismiss the appeal on grounds 1 and 3. In that event, the question for determination by me would not be whether it was open to the magistrate to impose the sentence he did, but whether that sentence accords with the sentence which ought to have been imposed on a proper application of the law. It would then be necessary to consider the operation of the proviso pursuant to s 14(2) of the CA Act.
If the error is material as to the issue of parole eligibility alone, then I am only required to freshly exercise the discretion as to parole eligibility.
In McGarry v The Queen,[17] a majority of the High Court said, in referring to s 98(1) of the Sentencing Act:
Section 98(1) [of the Sentencing Act] empowers a sentencing judge, if the relevant conditions are met, to 'order the offender to be imprisoned indefinitely' and to do so 'in addition to imposing the term of imprisonment for the offence'. An order for indefinite imprisonment is, then, a part of the sentence which is imposed (just as much as, in other cases, will be a parole eligibility order, or an order suspending the imprisonment).
[17] McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [7].
In Penny v The State of Western Australia,[18] the court considered, without determining, the question of whether a decision not to make a parole eligibility order is, for the purpose of pt 3 of the CA Act, part of the sentence imposed on the offender, or is instead a refusal to make an order that might be made as a result of the conviction of the offender.[19] As in the present case, in Penny the appellant had appealed against the refusal to make a parole eligibility order, as well as the total effective sentence.
[18] Penny v The State of Western Australia [2006] WASCA 173; (2007) 33 WAR 48.
[19] The relevance of the inquiry was that it potentially impacted on the orders the court was empowered to make.
McLure P held that the sentencing judge erred in his approach to the question of parole but that, on reconsideration, the result should be the same, namely parole refused, and said:[20]
As noted by Buss JA, both parties contended that the error by the sentencing Judge in his approach to parole did not affect the balance of the sentence, being the individual terms of imprisonment and the total effective term. That is, the error did not enliven this Court's jurisdiction and obligation to consider afresh the appropriate penalty. In this case there was no challenge to the type of penalty imposed but rather to the length of the terms. The parties' contentions were by way of assertion rather than principled arguments supported by authority. In those circumstances, I will proceed on the assumption that the parties are correct and reserve my position on the question. However, as it has been considered and determined by Buss JA, I wish to note two matters. First, I would wish to consider whether the question of parole is sufficiently connected to the terms of imprisonment so that, as a matter of principle they must also be set aside. In particular, I have in mind the accepted principle that it is not permissible to reduce or increase a term of imprisonment by reference to whether or not a person is to be made eligible for parole. Secondly, I am not currently persuaded that a decision about parole is not part of the sentence for the purposes of s 23(1)(b) and s 31(1)(a) of the Criminal Appeals Act 2004 (WA).
[20] Penny [7] (citations omitted).
Buss JA (as his Honour then was) also held that it was unnecessary to determine the issue for the purposes of the appeal in question in Penny, but made the following observations:
If a court decides, under s 89(4) of the Sentencing Act, not to make a parole eligibility order, the decision is part of the sentencing process, whether or not it is also part of the sentence imposed on the offender for the purposes of s 23(1)(b) and s 31(1)(a) of the Criminal Appeals Act.
…
In the present case, the learned Judge's decision imposing the fixed terms of imprisonment, and his decision not to make a parole eligibility order, formed part of a single sentencing decision. It is the sentencing decision, and not its individual components, to which the principle enunciated in McGarry (2001) applies. In the present case, leave to appeal was sought and granted in respect of both the fixed terms of imprisonment and the decision not to make a parole eligibility order. The whole of the learned Judge's sentencing decision is therefore before this Court. In those circumstances, at least, the principle in McGarry (2001) applies, notwithstanding the alteration of the statutory framework for appeals consequent upon the repeal of s 689 of the Criminal Code and the enactment of the Criminal Appeals Act. It is unnecessary, in this appeal, to consider the position where an offender who has been sentenced to a fixed term of imprisonment without eligibility for parole applies for leave to appeal or is granted leave solely in respect of the decision not to make a parole eligibility order …
In my opinion, in the present case, if this Court were to set aside the learned Judge's decision not to make a parole eligibility order, it would be entitled and obliged also to set aside the balance of the sentencing decision, that is, the fixed terms of imprisonment imposed by his Honour.
The observations of both McLure P and Buss JA were made in relation to pt 3 of the CA Act. However, the differences in the provisions of pt 2 of the CA Act do not, in my view, warrant a different approach to this particular issue, in appeals under pt 2, to that articulated by Buss JA.
Accordingly, in my view, the error on the part of the learned magistrate in failing to make a parole eligibility order enlivens the court's jurisdiction and obligation to exercise the sentencing discretion afresh.
While it is therefore strictly unnecessary to consider grounds 1 and 3 of the appeal, I propose to give brief reasons in relation to each of them.
Ground 1
Appellant's submissions
The appellant contended that, in sentencing the appellant to a term of imprisonment for the offence of having ready access to drugs and weapons (the ready access offence) to be served cumulatively on the charge of possession of methylamphetamine with intent to sell or supply (the possession with intent offence), the learned magistrate made an express error in failing to moderate the sentence on the ready access offence on the basis that the element of possession of methylamphetamine was common to both charges.
In support of this contention, the appellant points to the learned magistrate's reference to the overlap between the weapons offences (RO 6388-6390/2022) and the ready access offence, and submits that, in contrast, his Honour's failure to mention any overlap between the possession with intent offence and the ready access offence demonstrates that his Honour failed to take it into account.
The appellant accepted that the possession with intent offence had an additional element of intent to sell or supply such that some cumulation was appropriate.
Respondent's submissions
The respondent submitted that it cannot be said that the learned magistrate did not take into account the fact that both offences involved the element of possession of methylamphetamine, and ensured that that element was only reflected in one of the sentences.
The respondent argued that the essential criminality in the possession with intent offence is the willingness to be involved in the dissemination of drugs into the community, while the essential criminality in the ready access offence is the threat to the community posed by those who 'arm themselves to further their illicit activities in the drug trade.'[21]
Disposition
[21] Citing Western Australia, Parliamentary Debates, Legislative Council, 11 November 2009, 8754 (Mr S O'Brien, Minister for Transport).
In Pearce v The Queen,[22] the majority stated:
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
[22] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 [40].
The principle in Pearce is uncontroversial. It is not in dispute that it applies in the present case. The issue is whether the learned magistrate properly gave effect to it.
As McLure P indicated in Eves v The State of Western Australia,[23] when sentencing for multiple offences with common elements, double punishment can be avoided either by ordering partial cumulation or reducing subsequent individual penalties.
[23] Eves v The State of Western Australia [2008] WASCA 7; (2008) 49 MVR 259 [27], [30].
In the present case, it is plain that the learned magistrate did not take the former approach. His Honour also did not expressly state that he had taken the latter approach. However, a magistrate's failure to refer to relevant matters does not necessarily give rise to an inference that the matter was not considered.[24]
[24] Pickett v The State of Western Australia [2004] WASCA 291 [10]; Rundle v Innerd [2015] WASC 340 [117].
It is clear from the sentencing remarks that his Honour was alive to the issue of double punishment, and took steps to avoid it by imposing no penalty in relation to the weapons offences. In those circumstances, considerable caution should be exercised before inferring that, simply because his Honour omitted to expressly refer to the issue specifically in relation to the methylamphetamine, his Honour did not take it into account.
Having imposed no punishment on the weapons offences, it was necessary for his Honour to impose a sentence on the ready access offence which properly reflected the appellant's criminality in relation to the possession of the weapons, as well as that part of the offence which did not overlap with the possession with intent offence.
In those circumstances, it was, subject to totality considerations, open for his Honour to make that sentence wholly cumulative on the sentence imposed for the possession with intent offence, without necessarily punishing the appellant twice in relation to the common element of possession of methylamphetamine.
There are no appellate authorities in relation to sentencing for the ready access offence. The maximum penalty is 5 years' imprisonment. The summary conviction penalty (which is a jurisdictional limit only) is 3 years' imprisonment and a fine of $36,000.
The ready access offence in this case was serious. The appellant had three different offensive weapons capable of causing significant injury at his immediate disposal in his car, at the same time as he personally was in possession of methylamphetamine which he intended to sell or supply. Having regard to the circumstances of the offence, I am not satisfied that the length of the term of imprisonment imposed was unreasonable or could only be explained by an error such as that asserted by the appellant.
In the circumstances of this case, I am not satisfied that error as alleged by ground 1 has been made out.
Ground 3
Appellant's submissions
The appellant argued that the learned magistrate erred in imposing a total effective sentence that was disproportionate to the appellant's offending conduct, having regard to:
(1)the appellant's contentions in ground 1;
(2)the small quantity of drug found in the appellant's possession;
(3)the fact that, on the evidence available to the magistrate, namely the small quantity of the drug, the small amount of cash, the limited evidence of the phone messages and the possession of weapons, the appellant appeared to be involved in low level drug dealing; and
(4)positive factors in favour of the appellant, including him having disengaged from the 'negative peer' present at the time of the offence and obtaining work which included random urinalysis testing.
Respondent's submissions
The respondent referred to the learned magistrate's observation that the quantity of drug was 'not of huge significance', and the seriousness of the ready access offence.
The respondent submitted that whilst the learned magistrate did not expressly refer to the totality principle, the fact his Honour made the sentence for the offence of stolen or unlawfully obtained property concurrent with the other sentences demonstrates that his Honour did give proper consideration to whether the total effective sentence reflected the criminality of the appellant's conduct.
Disposition
The principles governing an appeal on the ground that the first limb of the totality principle has been infringed were set out in Kabambi v The State of Western Australia[25] and need not be repeated here.
[25] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
In Pennetta v The State of Western Australia,[26] Hall J (as his Honour then was), observed:
Where, however, it is only claimed that there has been a breach of the totality principle and no challenge is made to the individual sentences the utility in comparing the total effective sentence with total sentences in other cases is more limited. This is because the total effective sentence is not one imposed for a single offence. It is often difficult enough to compare sentences imposed in different cases with different factual circumstances and different personal circumstances where the offences (sic offending) relates only to a single offence. The fact that different offenders may have received different total effective sentences in respect of different groupings of sentences adds a level of complexity that makes comparisons difficult. Nonetheless it is important to ensure that there is broad consistency in sentences.
[26] Pennetta v The State of Western Australia [2013] WASCA 234 [39] (Hall J; Mazza JA agreeing) (authorities omitted); see also Gomboc v The State of Western Australia [2023] WASCA 115 [189].
The limited utility of comparable cases is evident on a review of appellate authorities in relation to offences of possession with intent to sell or supply involving small quantities of prohibited drugs, particularly when considered in combination with the ready access offence (in relation to which, as I have earlier mentioned, there is no appellate authority).
Nonetheless, I have reviewed a number of cases, particularly Ness v The State of Western Australia,[27] Apkarian v The State of Western Australia,[28] Hayter v Thomson,[29] Golding v Gaunt,[30] Pacini v Bradley,[31] Donaldson v The State of Western Australia,[32] Crichton v The State of Western Australia,[33] Goodwin v The State of Western Australia,[34] Bailey v The State of Western Australia,[35] Truscott v The State of Western Australia[36] and Jones v The State of Western Australia.[37]
[27] Ness v The State of Western Australia [2013] WASCA 56.
[28] Apkarian v The State of Western Australia [2015] WASCA 67.
[29] Hayter v Thomson [2020] WASC 194.
[30] Golding v Gaunt [2020] WASC 361.
[31] Pacini v Bradley [2021] WASC 179.
[32] Donaldson v The State of Western Australia [2020] WASCA 193.
[33] Crichton v The State of Western Australia [2014] WASCA 37.
[34] Goodwin v The State of Western Australia [2017] WASCA 184.
[35] Bailey v The State of Western Australia [2016] WASCA 10.
[36] Truscott v The State of Western Australia [2016] WASCA 58.
[37] Jones v The State of Western Australia [2018] WASCA 105.
The majority of those cases involved multiple offences of possession with intent to sell or supply, of offering to sell prohibited drugs, or a combination of the two types of offences, relating to small quantities. Some involved heroin, although the majority involved methylamphetamine. These cases highlight the point emphasised by the learned magistrate in sentencing the appellant; that the imposition of a sentence other than immediate imprisonment in cases such as this is, as a matter of fact, exceptional. So much is accepted by the appellant.
Ness involved an offender who was apprehended in her car with 0.03g of heroin in a clip seal bag in her purse, together with two other bags with traces of heroin in them. There were scales in the driver's side footwell and text messages on the offender's phone which showed she was engaged in drug dealing. She was 39 years old, with a limited criminal record, and had never been imprisoned. She pleaded guilty on the 'fast track'. She was sentenced on the basis that she was an active low level drug dealer. On appeal, Buss JA (as his Honour then was), said:
If the appellant's offending had been a 'one‑off' occurrence or an uncharacteristic aberration, the sentence of 12 months' immediate imprisonment would, no doubt, have been manifestly excessive.
The appellant's offending was not a 'one‑off' occurrence or an uncharacteristic aberration. The very small quantity of heroin cannot be viewed in isolation. The text messages in combination with the scales found in the appellant's vehicle proved that she was an active low level drug dealer. This status is a relevant sentencing factor. It illuminates the appellant's moral culpability and underscores the need to deter her and other offenders from committing similar offences. See Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson & Toohey JJ).
The present case is unusual. Ordinarily, when a person is apprehended with a very small quantity of a prohibited drug (say, less than 1 g of heroin or methylamphetamine) there is no evidence that the person was in possession of the drug with intent to sell or supply it to another or that he or she is involved in drug dealing generally. But for the text messages and the scales, the appellant would have been charged with and convicted of another count of 'mere' possession, and the likely penalty would have been a fine.
A drug dealer (including an active low level dealer) will not ordinarily, as a matter of fact, receive a lesser type of sentence than a term of immediate imprisonment because on the occasion he or she was apprehended the dealing involved a very small quantity of a prohibited drug.[38]
[38] Ness [31] - [34].
Those remarks are equally applicable in this case. While the learned magistrate made no specific finding as to the extent of the appellant's drug dealing, he did find that the appellant was 'dealing in hardcore drugs' and 'peddling misery.'[39] At least, therefore, the appellant was sentenced on the basis that he was a low level drug dealer. His Honour specifically noted that the quantity possessed is not of 'huge significance' in such a case. In addition, the appellant was carrying three weapons, in circumstances which Parliament has made clear should attract additional punishment.
[39] Transcript, 28 April 2023, 5.
The appellant was, at the time of the offending, 32 years old. He had a very limited criminal record, none of which appeared to be related to drug use. The majority of it was traffic related, although he was convicted in 2017 of assault occasioning bodily harm[40] and in 2018 of obscene acts in public.[41] The only penalties ever imposed on him have been fines. He pleaded guilty at what must have been accepted to be the earliest opportunity, given the discount allowed by the learned magistrate under s 9AA of the Sentencing Act was 25%. Further, the appellant had obtained productive employment.
[40] For which he received a $750 fine.
[41] For which he received a $1,200 fine.
The prosecution did not take issue with the submissions put on the appellant's behalf regarding his prospects of rehabilitation, or his cessation of drug use.
In those circumstances, the total effective sentence imposed on the appellant was, in my view, severe. However, having regard to the range of sentences customarily imposed, the circumstances of the particular offending, the paramount importance of general deterrence and the fact that less weight is to be accorded to personal circumstances in cases involving the distribution of prohibited drugs,[42] I am not satisfied that the sentence was disproportionate to the criminality involved in this case. While it is undoubtedly harsh, I am unable to conclude that error has been demonstrated.
[42] Baldini [23] - [27].
I would grant leave to appeal in relation to ground 3 but dismiss the appeal on that ground.
Conclusion
As the appeal has been allowed in relation to ground 2, I am required to resentence the appellant. The parties were therefore entitled to make further submissions as to sentence.
The appellant's background has been more fully set out by his counsel, including the fact that he has been employed consistently since he moved to Australia when he was 20 years old. Again, his prospects of rehabilitation have been emphasised; he has ceased using drugs, and has not used alcohol since about 2 years before the present offending. He had obtained productive employment after his arrest and until he was sentenced. He proposes to reside with his family on release.
It was submitted that the appellant faces the possibility of deportation at the conclusion of his sentence. While it is acknowledged that this is not a mitigating factor of itself,[43] it was submitted that this possibility weighs upon the appellant in such a manner as to make his time in custody harder. However, that 'apprehension burden', as McLure P has previously described it,[44] is also not a factor to be taken into account in mitigation.[45]
[43] Hickling v The State of Western Australia [2016] WASCA 124.
[44] Hickling [7].
[45] Hickling [11], [60].
The offences were committed on 7 December 2022. The appellant had never committed similar offences before. His most recent offending had been in January 2020. All of his previous offending appears to be alcohol related, and, as indicated, he ceased drinking some time before the offending in this case. He cooperated with police at the time of his arrest. He is to be taken as having pleaded guilty at the earliest opportunity, saving the cost of preparing and prosecuting a trial. The quantity of prohibited drugs was small, 0.56g, split into two clip seal bags.
In my view, the appellant is to be characterised as a low-level drug dealer, selling to support his own habit. His conduct was not a one-off aberration, a conclusion supported by the presence of the weapons and the cash found. However, he has, of his own initiative, taken steps to dissociate himself from the lifestyle and peers which contributed to his offending, and demonstrated a commitment to his rehabilitation which has continued since he was sentenced.
The appellant's possession of weapons, to be sentenced under the ready access to prohibited drugs and weapons charge, is aggravated by the fact that it involved three weapons, and that they were present in the car and within arm's reach at the time of the possession of the prohibited drug.
Resentencing
In my view, having regard to all of the mitigating circumstances, and factoring in a discount of 25% for the plea of guilty, pursuant to s 9AA, the appropriate sentence to be imposed on the charge of possession of a prohibited drug with intent to sell or supply is one of 8 months' imprisonment. That will be the head sentence.
I moderate the sentence to be imposed for the ready access offence so as to avoid sentencing the appellant twice in relation to the possession of the methylamphetamine. Including a 25% discount under s 9AA, and having regard to the aggravating and mitigating factors of this offence, I impose a sentence of 6 months' imprisonment, reduced to 4 months' imprisonment for totality reasons, to be made wholly cumulative on the sentence imposed on the possession with intent charge.
For the offence of possession of property suspected of having been unlawfully obtained, I sentence the appellant to 4 months' imprisonment. For totality reasons, I make this sentence wholly concurrent on the sentences imposed for possession with intent and the ready access offence.
The total effective sentence is therefore one of 12 months' imprisonment, commencing on 28 April 2023. The appellant will be eligible for parole, meaning he will be eligible after 6 months from 28 April 2023.
Orders
Leave to appeal is granted on grounds 2 and 3.
The appeal is allowed in relation to ground 2.
The sentence imposed by the learned magistrate on 28 April 2023 is set aside.
The appellant is resentenced as follows:
(1)Charge RO 6392/22: 8 months' imprisonment (head sentence);
(2)Charge RO 6386/22: 4 months' imprisonment (cumulative);
(3)Charge RO 6387/22: 4 months' imprisonment (concurrent).
The sentence is to be backdated to 28 April 2023.
The appellant is made eligible for parole.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Forrester
1 AUGUST 2023
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