The State of Western Australia v Baldini
[2015] WASCA 39
•6 MARCH 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- BALDINI [2015] WASCA 39
CORAM: McLURE P
BUSS JA
MAZZA JA
HEARD: 3 FEBRUARY 2015
DELIVERED : 6 MARCH 2015
FILE NO/S: CACR 181 of 2014
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
KARL ANTHONY BALDINI
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :KEEN DCJ
File No :IND 562 of 2014
Catchwords:
Criminal law - Appeal against sentence - Manifest inadequacy - Type and length of sentence - Sentencing principles in drug dealing cases - Youth
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)
Sentencing Act 1995 (WA), s 9AA, s 39, s 76(3)(b), s 81(3)(b)
Result:
Appeal allowed
Orders made by sentencing judge set aside
Respondent resentenced
Category: B
Representation:
Counsel:
Appellant: Mr J McGrath SC
Respondent: Mr S Vandongen SC
Solicitors:
Appellant: Director of Public Prosecutions (WA)
Respondent: Terry Dobson Legal
Case(s) referred to in judgment(s):
Barbaro v The Queen (2014) 305 ALR 323
Bond v The State of Western Australia [2011] WASCA 123
Burke v The State of Western Australia [2007] WASCA 210
Crichton v The State of Western Australia [2014] WASCA 37
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions (Vic) v Karazisis [2010] VSCA 350; (2010) 206 A Crim R 14
Duong v The State of Western Australia (2006) 32 WAR 246
Green v The Queen (2011) 244 CLR 462
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Hobby v The State of Western Australia [2009] WASCA 108
Jardim v The State of Western Australia [2011] WASCA 83
Lam v The State of Western Australia [2010] WASCA 61
Mishal v The Queen [2001] WASCA 328
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Phan v The State of Western Australia [2014] WASCA 144
R v Mahasay [2002] WASCA 336
Roffey v The State of Western Australia [2007] WASCA 246
RP v The State of Western Australia [2010] WASCA 75
The State of Western Australia v Andela [2006] WASCA 77
The State of Western Australia v Buck [2010] WASCA 188
The State of Western Australia v Johnson [2010] WASCA 187
The State of Western Australia v Reid [2012] WASCA 109
The State of Western Australia v Saxild [2008] WASCA 156
The State of Western Australia v Thompson [2014] WASCA 108
The State of Western Australia v Tran [2014] WASCA 26
Vagh v The State of Western Australia [2007] WASCA 17
Wong v The State of Western Australia [2004] WASCA 286
Zohdy v The State of Western Australia [2014] WASCA 141
McLURE P: This is a State appeal against sentence. On 2 October 2014 the respondent was convicted on his own plea of guilty of one count of selling MDMA (65 tablets) contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (MDA), one count of possessing MDMA with intent to sell or supply (490 tablets) contrary to s 6(1)(a) of the MDA and one charge in a s 32 notice of being in possession of $3,800 that was reasonably suspected to be unlawfully obtained.
On 2 October 2014 the sentencing judge, Keen DCJ, sentenced the respondent to 12 months' imprisonment on count 1, 18 months' imprisonment on count 2 and 3 months' imprisonment for the s 32 offence, all of which sentences were ordered to be served concurrently. That resulted in a total effective sentence of 18 months which was suspended, on conditions, for 18 months. In addition to the conditional suspended term of imprisonment, the sentencing judge imposed a global fine of $4,000.
There are two grounds of appeal. The State claims first, that the type of sentence imposed on counts 1 and 2 is manifestly inadequate and second, that the total effective sentence of 18 months' imprisonment breaches the first limb of the totality principle. At the hearing the State re‑directed ground 2 to a claim that the length of the sentences on counts 1 and 2 are manifestly inadequate.
Factual background
On 31 March 2014, the respondent was arrested at the Kingsway shopping centre after being observed leaving his home address in Kingsley. On his arrest, police searched the respondent and seized $600 in cash and two mobile telephones. The respondent was then taken to his home where police executed a search warrant.
At the commencement of the search, the respondent declared he was in possession of MDMA tablets, as well as an amount of cash. He told police that he purchased 500 MDMA tablets for $16.50 each about a week prior to the search. He admitted having already sold 65 of the MDMA tablets to unidentified persons for $30 each (count 1). Police searched the respondent's bedroom and located a further 490 MDMA tablets inside a locked box, along with numerous clipseal bags and digital scales. The total weight of the 490 tablets was 129.57 g, and the purity ranged from 19% to 31% (count 2).
The respondent admitted possession of the tablets and that he intended to sell them for profit. Police also located $3,200 in cash inside the locked box. Thus the total cash seized was $3,800. The respondent admitted that some of the money was from the sale of drugs. One of the mobile phones in the respondent's possession was found to contain numerous messages relating to the sale of prohibited drugs and notes detailing moneys owed.
Based on the amount of money in the respondent's possession, the sentencing judge was satisfied that the respondent was, at the very least, 'a modest dealer … a street dealer' in prohibited drugs (ts 20).
He also found that the respondent was supplying drugs for commercial gain and that based on the quantity of drugs the subject of counts 1 and 2, the profit would have been somewhere in the order of $5,000.
The respondent pleaded guilty at the first reasonable opportunity. The sentencing judge reduced the head sentence that he would have imposed by 25% in accordance with s 9AA of the Sentencing Act 1995 (WA).
The offence the subject of count 1 only came to light as a result of the respondent's voluntary admissions to police which provided the evidentiary basis for that count.
The respondent was born on 21 January 1995. The offences were committed in March 2014 when the respondent was aged 19.
The respondent had no prior criminal record, was remorseful, had cooperated fully with police and taken steps to rehabilitate himself before sentencing. The sentencing judge found that he was 'on the road to rehabilitation' (ts 21).
The respondent was from a stable and supportive family, was otherwise of good character, and had been in stable employment since leaving school after year 12. He was a bricklayer's labourer earning approximately $800 net per week (ts 19). He had commenced using prohibited drugs at 16 and at the time of the offending engaged in gambling and excessive alcohol use.
In June 2014 the respondent commenced counselling at the North Metro Community Drug Service (Next Step) and was progressing well.
The pre‑sentence report before the sentencing judge assessed the respondent as posing a moderate risk of reoffending. The psychological report contains the following summary:
[The respondent] acknowledging [sic] that his current offences were motivated by financial gain. He described a progression from using illegal drugs, to dealing drugs to support his own use, and in the process becoming 'mesmerised' by the lifestyle that dealing drugs could afford (5).
The sentencing judge described the drug dealing offences as serious and for which a term of imprisonment was appropriate. He continued:
However, I must not impose a term of immediate imprisonment unless I am positively satisfied no other sentence is appropriate. As I am required to do, I've had regard to all of the matters to which I have previously referred.
In particular, having regard to your cooperation, your age, your clean record, the fact that you've been working, your stable supports at home and all the references I have on you and your counselling as I've said on the road to rehabilitation, I am of the view that on this occasion I can suspend the sentence that I am about to impose (ts 21).
Manifest inadequacy and totality
This court can only intervene if the sentencing judge made an express or implied material error of fact or law. A claim of manifest inadequacy (and manifest excess) relies on the implication of error. The sentence must be shown to be unreasonable or unjust, it being outside the range of a sound sentencing discretion.
In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.
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: The State of Western Australia v Johnson [2010] WASCA 187 [19]. What is important is the unifying principles which sentences imposed in comparable cases both reveal and reflect: Barbaro v The Queen (2014) 305 ALR 323 [41]; Hili v The Queen (2010) 242 CLR 520 [54].
Manifest inadequacy (and excess) apply to an individual sentence. The totality principle applies to the total effective sentence for multiple offences. A breach of the totality principle is also a claim of implied error.
The first limb of the totality principle is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].
The practical effect of the totality principle is ordinarily to arrive at a total effective sentence that is less than that achieved by adding up all the terms of imprisonment for the individual offences.
Sentencing principles in drug cases
The relevant sentencing principles and their application in drug cases are well known. However, perhaps it is time to repeat them. As I have nothing substantively new to say on the subject I propose to repeat what I said in The State of Western Australia v Johnson [2010] WASCA 187 at [16] ‑ [17], [23], [25]:
In Cartwright v The State of Western Australia [2010] WASCA 4 [8] - [10], the relevant principles relating to suspension of a term of imprisonment were identified as follows:
'Section 39(2) of the Sentencing Act 1995 (WA) (the Act) sets out the various sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Act a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term; the power to suspend is not confined by reference wholly, mainly or specially to the effect that suspension would have on the rehabilitation of a particular offender: Dinsdale v The Queen (2000) 202 CLR 321 [18], [26], [84], [85].
However, as noted in Collins v The State of Western Australia [2007] WASCA 108 [17], the sentencing discretion is not to be exercised in a vacuum. A sentencing judge must impose a type of sentence that falls within a sound discretionary range. The decisions of this court and its predecessor provide guidance to sentencing judges with the aim of achieving consistency in sentencing. This court has made it plain that generally, a term of immediate imprisonment is the only appropriate sentencing option for serious drug offences. The incentives, financial and otherwise, to participate in the illicit drug distribution network must be counterbalanced by a clear and certain understanding that such involvement will ordinarily result in a penalty of immediate imprisonment: The State of Western Australia v Saxild [2008] WASCA 156 [12]. Thus, the imposition of a sentence other than immediate imprisonment for such an offence is, as a matter of fact, exceptional: The State of Western Australia v Andela [2006] WASCA 77 [17]; Saxild [13].
However, even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge is not relieved of his or her obligation to determine the appropriate penalty in the particular case. In such circumstances the question for the sentencing judge is whether having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence: Collins [21].'
It is the experience of the courts that illicit drugs cause or materially contribute to a very significant proportion of the criminal offences committed in this State, either as a result of users acting under their influence or because of the need to finance or secure a supply of drugs. There are often strong financial incentives to deal in prohibited drugs. Further, significant public resources are devoted to the difficult task of detecting and apprehending persons involved in the supply and distribution of illicit drugs. It is for these reasons that in sentencing for offences under s 6(1) of the Act, significant weight is given to general deterrence with the consequence that mitigating circumstances personal to the offender, including age and good character, are accorded less weight.
…
The overwhelming majority of offenders convicted of offences against s 6(1) of the Act are sentenced to terms of immediate imprisonment. As previously noted, the imposition of a suspended term is, as a matter of fact, exceptional. The number of suspended terms of imprisonment (conditional or otherwise) upheld or imposed on appeal in recent times can be counted on the fingers of one hand (Attenborough v The State of Western Australia [2005] WASCA 132; Samuel v The State of WesternAustralia [2004] WASCA 154; The State of Western Australia v Skaines [2006] WASCA 160; and The State of Western Australia v Marchese [2006] WASCA 153).
…
Youth (which term is used in the sentencing of adults to cover people in their late teens to middle 20s) and the absence of prior relevant convictions do not ordinarily result in the suspension of a term of imprisonment for drug dealing offences: see Mishal v The Queen [2001] WASCA 328; Vogel v The State of Western Australia [2002] WASCA 261; Duong v The State of Western Australia (2006) 32 WAR 354; Jecks vThe State of Western Australia [2007] WASCA 111; Wong v The State of Western Australia [2004] WASCA 286; The State of Western Australia v Munro [2000] WASCA 285; The State of Western Australia v Saxild [2008] WASCA 156; Dixon; Andela; RP v The State of Western Australia [2010] WASCA 75; Burke; Vagh; Lam v The State of Western Australia [2010] WASCA 61. It is not uncommon in this State for young persons of good character from advantaged backgrounds to engage in the distribution of prohibited drugs. Further, many of the youthful offenders in these cases had (after being charged) taken positive steps towards rehabilitation and were not found to be at any significant risk of re‑offending. The imposition of a term of immediate imprisonment in these types of circumstances reflect the significant weight accorded to the need for general deterrence and the prevalence of offending of this type among young people. The latter may have some correlation with the nature of the market for prohibited drugs.
The handful of suspended terms of imprisonment (conditional or otherwise), upheld or imposed on appeal has, since 2010, increased from four to six. See Crichton v The State of Western Australia [2014] WASCA 37 and The State of Western Australia v Thompson [2014] WASCA 108. Both cases involved small quantities of prohibited drug (1.38 g and 4.34 g respectively). In Thompson, the trial judge's sentencing findings placed the offender's culpability very close to that of simple possession. This court said in Thompson that a fine for an offence against s 6(1) of the MDA is an affront to the proper administration of justice [40]
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.
The relevant cases, with the offender's age at the time of the offence in brackets, are as follows: R v Mahasay [2002] WASCA 336 (19); Wong v The State of Western Australia [2004] WASCA 286 (19); Phan v The State of Western Australia [2014] WASCA 144 (19); RP v The State of Western Australia [2010] WASCA 75 (20); Zohdy v The State of WesternAustralia [2014] WASCA 141 (20); Mishal v The Queen [2001] WASCA 328 (21); The State of Western Australia v Saxild [2008] WASCA 156 (21); The State of Western Australia v Andela [2006] WASCA 77 (21); Lam v The State of Western Australia [2010] WASCA 61 (22); Vagh v The State of Western Australia [2007] WASCA 17 (22); Burke v The State of Western Australia [2007] WASCA 210 (22); The State of Western Australia v Tran [2014] WASCA 26 (22); The State of Western Australia v Johnson (23); The State of Western Australia v Buck [2010] WASCA 188 (23); Bond v The State of Western Australia [2011] WASCA 123 (23); Hobby v The State of Western Australia [2009] WASCA 108 (24); Jardim v The State of Western Australia [2011] WASCA 83 (25); Duong v The State of Western Australia (2006) 32 WAR 246 (25); The State of Western Australia v Reid [2012] WASCA 109 (26). The overwhelming majority of these cases involved a fast‑track plea of guilty (in combination with multiple other mitigating factors). All resulted in a term of immediate imprisonment.
These sentencing outcomes reflect the consistent application in this State of the sentencing principle that in relation to a contravention of s 6(1) of the MDA, significant weight must be given to general deterrence with the consequence that mitigating circumstances personal to the offender are accorded less weight. As stated in Johnson, matters personal to an offender have a greater impact on the length of the term of imprisonment than on the type of sentence imposed [21].
An offence under s 6(1) of the MDA is one of the rare types of offence in which a youthful first offender will not ordinarily be spared immediate imprisonment: Wong [29]. As stated in Johnson, that reflects the prevalence of offending of this type among young people, which may have some correlation with the nature of the market for prohibited drugs [25]. There can be no doubt that children and youths are well and truly in the target market of drug dealers.
Ground 1 - type of sentence
The application of accepted sentencing principles for the offences committed by the respondent leads to only one conclusion, being that a term of immediate imprisonment is the only appropriate sentencing option.
It is convenient to start with the objective seriousness of the offending. The circumstances of the offending are towards the higher end of the scale of seriousness having regard to the significant quantity and purity of the drugs (which directs attention to the potential spread of users) and the commercial nature of what was, in effect, a street dealing enterprise.
The respondent's dealing was motivated by commercial gain, which aggravates the seriousness of the offending. It is not obvious that the respondent's recourse to counselling after being charged was directed at, or intended to address, the motivation for his drug dealing, which was to make a profit. No doubt that is reflected in the assessment that the respondent is at a moderate risk of reoffending.
Immediate imprisonment is the only appropriate sentencing option notwithstanding the combination of mitigating factors, the most significant of which are the respondent's youth, early plea of guilty, cooperation and to a lesser extent, positive steps towards rehabilitation.
The respondent's disclosure of information that resulted in him being charged and convicted of the offence the subject of count 1 is significantly mitigating. However, it is not such as to have any separate, material bearing on the appropriate type of sentence for count 2. The respondent was clearly under surveillance by police who had a warrant to search his house where the drugs were located.
A term of immediate imprisonment being the only appropriate sentence for count 2, suspended imprisonment (conditional or otherwise) cannot as a matter of law be imposed on count 1: s 76(3)(b) and s 81(3)(b) of the Sentencing Act. The respondent's cooperation relating to count 1 can properly be reflected in the length of the term of imprisonment for that count and it being served wholly concurrently with the sentences for the other offences.
For these reasons, the sentencing judge erred in imposing sentences of a type that is manifestly inadequate. I would allow ground 1.
Ground 2 - length of term
Counts 1 and 3 are closely related and would ordinarily require an order that they be served wholly concurrently. Further, if the view is reached that the cooperation which resulted in the conviction on count 1 should result in the sentence for that offence being served wholly concurrently with the sentence on count 2, the totality challenge must fail. I infer that was the trigger for the State to switch focus to the individual sentences on counts 1 and 2.
Having regard to the cooperation directly related to count 1 and the other mitigating factors, I am satisfied that the sentence of 12 months' imprisonment is not manifestly inadequate.
The sentence of 18 months for the offence the subject of count 2 is at the very lenient end of the range of sentences imposed in closely comparable cases (RP; Lam; Vagh; Johnson). However, having regard to the combination of significant mitigating factors in this case, the State has failed to persuade me that it is manifestly inadequate. I would dismiss ground 2.
The residual discretion
The respondent submits that in the event the court considers that the individual sentences are manifestly inadequate, the appeal should be dismissed in the exercise of the residual discretion. Particular reliance is placed upon the effect of resentencing on the respondent's progress of rehabilitation before and after sentence (there being evidence in the appeal of his continued efforts at rehabilitation after sentence) and the delay between the respondent's sentencing and the hearing of this State appeal.
I will start with the issue of 'delay'. The respondent was sentenced on 2 October 2014. The State's case was filed on 17 November 2014. An urgent appeal order was made on 18 November 2014. The respondent was ordered to file and serve the respondent's answer by 8 December 2014. The appeal was heard on 3 February 2015. By any measure, the appeal has been dealt with expeditiously. Reliance on delay in the circumstances of this case suggests the mere existence of the appeal process is a residual discretionary consideration in favour of dismissing a State appeal against sentence. That cannot be correct.
The evidence of the respondent's post‑sentence rehabilitation is to the following effect. His current employer is deeply disappointed to hear of the appeal but says the respondent's work has not suffered and he is a great asset to his team of bricklayer's labourers. Next Step reports that the respondent had attended four counselling sessions (one of which was after sentencing) but had maintained regular phone contact with the agency and that on the fourth counselling session in November 2014 it was determined that the respondent required no further counselling. The report confirms that Next Step's focus was on the respondent's drug use. Finally, it can be inferred that the respondent has complied with all conditions of his suspension.
The respondent relies on the decision of the Victorian Court of Appeal in Director of Public Prosecutions (Vic) v Karazisis [2010] VSCA 350; (2010) 206 A Crim R 14, cited with apparent approval by the High Court in Munda v The State of Western Australia (2013) 249 CLR 600 [72]. The High Court in Munda refers to Karazisis in the context of the plurality's statement in [72] that '[t]he conduct of the Crown might also be relevant'. However, the High Court in Green v The Queen (2011) 244 CLR 462 [43] said that 'the effect of resentencing on progress towards the respondent's rehabilitation' is a residual discretionary consideration.
Ashley, Redlich and Weinberg JJA in Karazisis relevantly said:
The next potentially relevant factor in the exercise of the residual discretion is rehabilitation. Crown appeals are not intended to detract, in any way, from the importance of this vital sentencing factor. The importance of rehabilitation in the case of young offenders, in particular, has been emphasised many times.
Rehabilitation has always been regarded by this Court as an important factor in determining whether to interfere with a sentence that was designed to enhance its prospects. This applies as well to custodial sentences which are ordered to be served in less punitive ways than actual imprisonment. For example, an offender who has been sentenced to a term of imprisonment, to be served by way of an Intensive Correction Order, may already have completed a good part of that sentence by the time the Crown appeal is heard. That is plainly a matter to be accorded considerable weight in determining whether the Court should, in the exercise of its residual discretion, dismiss such an appeal. Rehabilitation will also play its part in the sentencing discretion in the event that the Court resolves to intervene and impose a different sentence [111] ‑ [112].
It is clear that the Victorian court is referring to the general sentencing approach to young offenders. I have already explained that the general approach gives way to the need for general deterrence in the context of offences against s 6(1) of the MDA.
I have had regard to the respondent's positive steps towards rehabilitation, both before and after sentencing. Applying the long accepted sentencing principles that apply to drug dealing offences, the fine and the conditional suspended terms of imprisonment imposed on the respondent are manifestly inadequate. Those sentencing principles are not abandoned when it comes to the residual discretion stage. That is, rehabilitation does not then displace general deterrence as the primary sentencing consideration. Indeed, rehabilitation is not the primary sentencing consideration even when determining whether or not to suspend a term of imprisonment for any offences: Dinsdale v The Queen (2000) 202 CLR 321.
In any event, there is no evidence to suggest and I am not satisfied that upholding the appeal will have any adverse effect on the respondent's progress towards rehabilitation.
Conclusion
I would allow the appeal, set aside the order conditionally suspending the terms of imprisonment on counts 1, 2 and the s 32 offence and set aside the fine. Accordingly the respondent is sentenced to a total effective sentence of 18 months' imprisonment. He will be eligible for parole after serving 9 months.
BUSS JA: I agree with McLure P.
MAZZA JA: I agree with McLure P.
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