The State of Western Australia v Berlingeri

[2011] WASCA 242

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BERLINGERI [2011] WASCA 242

CORAM:   McLURE P

PULLIN JA
BUSS JA

HEARD:   5 OCTOBER 2011

DELIVERED          :   3 NOVEMBER 2011

FILE NO/S:   CACR 107 of 2011

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Appellant

AND

PATRIZIA BERLINGERI
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :WISBEY DCJ

File No  :IND 216 of 2011

Catchwords:

Criminal law - Appeal against sentence - Possession of methylamphetamine with intent to sell or supply - Respondent held drugs for and on behalf of co-offender - Whether open to sentencing judge to suspend term of imprisonment - Turns on own facts

Legislation:

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

Result:

Appeal allowed
Sentence imposed by sentencing judge set aside
Respondent resentenced to 2 years 4 months' immediate imprisonment
Respondent to be eligible for parole after serving 14 months

Category:    B

Representation:

Counsel:

Appellant:     Mr D Dempster

Respondent:     Ms A Rogers

Solicitors:

Appellant:     Director of Public Prosecutions (WA)

Respondent:     Andrew Maughan & Associates

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

Cartwright v The State of Western Australia [2010] WASCA 4

Fogg v The State of Western Australia [2011] WASCA 11

Mishal v The Queen [2001] WASCA 328

The State of Western Australia v Johnson [2010] WASCA 187

The State of Western Australia v Wynne [2008] WASCA 195

1. McLURE P: This is a State appeal against sentence. On 26 May 2011 the respondent was convicted after a trial by jury of one count of possession of methylamphetamine with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).

2. On 12 July 2011, Wisbey DCJ sentenced the respondent to 2 years and 8 months' imprisonment, conditionally suspended for 2 years.  The respondent had been remanded in custody from the date of her conviction until the imposition of the sentence.

3. On 31 March 2011, the respondent's co‑offender and de facto partner, Jonas Patrick Lynch, was sentenced to 3 years and 6 months' imprisonment for the same offence.  He had made a fast‑track plea of guilty.

4. The sole ground of appeal is that the sentence is manifestly inadequate.  The State challenges the type of sentence imposed, not the length of the term.  In essence, the State contends that the term of imprisonment ought not to have been suspended.

5. The facts emerging at the trial of the respondent were as follows.  On 7 July 2010 at around 10.00 pm, the respondent was a passenger in a motor vehicle being driven by the co‑offender.  At that time, the co‑offender and the respondent had been in a relationship for approximately 10 years.  The vehicle was stopped by police for a traffic matter.  The police asked for permission to search the vehicle.  The respondent's handbag was on the front passenger seat.  When police asked if they could search the bag, the respondent replied, 'Go for it'.  As she said that, she leaned forward and took a black wallet out of the bag.  She was observed to be agitated and nervous, transferring the wallet from one hand to the other.  The respondent was told that the wallet was to be searched and she responded by throwing the wallet into the car saying, 'Only my passport is in there'.  When the wallet was searched, police located the respondent's passport and a package wrapped in paper towelling secured with elastic bands.  The respondent remarked, 'I don't know how that got in there, it's not mine'.  The package contained 27.9 g of methylamphetamine of 34% purity.

6. The respondent was advised that she was under arrest and a caution was administered.  She was then observed to be moving towards the passenger side of the vehicle with her hands in her pockets.  She lowered her arm and a noise was heard on the road surface.  Two clipseal bags were found on the road under the edge of the car.  The bags contained 3.38 g of 34% pure methylamphetamine and 3.48 g of 38% pure methylamphetamine.  The respondent denied she had thrown anything on the ground.

7. The respondent participated in a video‑recorded interview with police.  She admitted the wallet was hers but denied she had ever seen the package containing the drugs or the packages found under the car.  She claimed she had not opened the wallet for two or three months.

8. The respondent called her co‑offender as a witness at her trial.  He gave evidence that he had secretly placed the larger amount of drugs in the respondent's wallet and the smaller amounts in her jacket.  The co‑offender claimed he told the respondent about the presence of the drugs in her jacket when he saw the flashing lights of the police car.  The jury clearly rejected the co‑offender's evidence.

9. The co‑offender, Mr Lynch, was sentenced on the basis that he was going to sell or share about one‑third of the drugs, the balance being for his use.  The sentencing judge found that the respondent had been in possession of all of the drugs with knowledge.  He also found that the respondent 'probably possessed the drug[s] as agent for Mr Lynch with the intention of returning [them] to him as and when requested' (ts 160).

10. The sentencing judge said:

    Although your involvement was clearly at a lower level of seriousness than that of Mr Lynch you were actively participating and facilitating his possession and partial dissemination of the substance.  Your involvement was such that imprisonment is the only disposition that appropriately marks its seriousness and the appropriate term is one of 32 months.

    I regard this as a borderline case but having regard to the circumstances of your criminality and your otherwise favourable antecedents I am not persuaded that proper sentencing principle demands that the term which I have identified be immediately served (ts 162).

11. The respondent continued to deny any relevant knowledge of the drugs in her wallet or jacket.  She was aged 32 at the time of sentencing and had no prior record.  The respondent left school after Year 12, obtained a diploma in children's services at Joondalup TAFE and worked as a childcare worker for around 12 years.  She ceased working in that capacity after being charged with this offence and obtained employment as a pharmacy delivery assistant.  The respondent used methylamphetamine with her co‑offender in a social setting.  She has strong family support, good employment prospects and stable accommodation.  She was assessed as having low treatment needs and at a low risk of reoffending.

Analysis

1. This court cannot intervene simply because it would have imposed a different sentence.  The appellant must establish that the sentencing judge made an express or implied material error of fact or law in the sentencing process.  A claim of manifest inadequacy requires the court to infer an error from the nature of the sentence imposed.

2. In order to succeed in its claim of manifest inadequacy, the State must establish that the sentence was outside the range of a sound exercise of the sentencing discretion having regard to the seriousness of the offence, the circumstances of the offending, sentences customarily imposed for offences of that nature and matters personal to the respondent. The maximum penalty for an offence under s 6(1)(a) of the Misuse of Drugs Act is 25 years' imprisonment.  When sentencing for such an offence, significant weight is given to general deterrence and reduced weight is given to matters personal to the offender.

3. The relevant principles relating to suspension of a term of imprisonment are detailed in Cartwright v The State of Western Australia [2010] WASCA 4 [8] ‑ [10] 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].

4. The number of suspended terms of imprisonment upheld or imposed on appeal in recent times for offences against s 6(1) can be counted on the fingers of one hand. They are identified in The State of Western Australia v Johnson [2010] WASCA 187 [23].

5. The State relied on this court's decision in The State of Western Australia v Wynne [2008] WASCA 195. The respondent in that case was convicted of possessing methylamphetamine with intent to sell or supply. She was travelling towards Albany when the vehicle she was driving was stopped by police. After being informed that she and the vehicle were going to be searched, the respondent voluntarily produced a bag containing 27.39 g of methylamphetamine of 21% purity. The respondent was described as a courier for and on behalf of her husband who had arranged for the purchase of the drugs. The respondent was aged 27 and had five children. She pleaded guilty and there was some cooperation with authorities. The sentencing judge imposed a sentence of 12 months' imprisonment, suspended for 2 years. That sentence was overturned on appeal. In lieu thereof, a sentence of 15 months' immediate imprisonment was imposed.

6. A case factually closer to the present is Mishal v The Queen [2001] WASCA 328. The appellant in that case was convicted, after trial, of possessing methylamphetamine with intent to sell or supply. He was sentenced to a term of imprisonment of 2 years (post‑transitional). It was contended on his behalf that the sentence was manifestly excessive, both in type and length. The appellant was aged 21 at the time of the offending and had no prior criminal record. He was in possession of 20 g (76 tablets) of methylamphetamine of 2% purity. The sentencing judge found that the appellant was holding the drugs simply for the purpose of returning them to their owner. There was no intention to sell the drugs. The appeal against sentence was dismissed. The circumstances of the

respondent's offending in this case are more serious than in Mishal and with fewer mitigating factors.

1. A sentencing judge has to be positively satisfied that suspension of the term of imprisonment is not appropriate before a term of immediate imprisonment can be imposed.  Different types of sentence may be reasonably open in borderline cases:  Fogg v The State of Western Australia [2011] WASCA 11 [9]. However, this case is not borderline. The respondent does not have the benefit of youth or any other significant mitigating factors. She has prior good character, but as has been repeatedly observed in cases of this type, prior good character, even in combination with youth, does not ordinarily result in the suspension of a term of imprisonment: Johnson [25].  The respondent's culpability is less than that of her co‑offender.  However, it is not at such a low level as to leave open the conclusion that conditional suspension of the term of imprisonment is appropriate.  Such a disposition is inconsistent with the type of sentence customarily imposed and inconsistent with the sentence imposed on her co‑offender.

2. Accordingly, I would allow the appeal and set aside the sentence imposed by the sentencing judge.  As the respondent has performed obligations associated with the sentence of conditional suspension, it is appropriate to reduce the term of 2 years 8 months imposed by the sentencing judge (which reflected a reduction for the time spent in custody).  I would impose a term of immediate imprisonment of 2 years 4 months.  The respondent will be eligible for parole after serving 14 months.

3. PULLIN JA:  I agree with McLure P.

4. BUSS JA:  I agree with McLure P.