The State of Western Australia v Johnson

[2010] WASCA 187

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- JOHNSON [2010] WASCA 187

CORAM:   McLURE P

NEWNES JA
MAZZA J

HEARD:   2 SEPTEMBER 2010

DELIVERED          :   21 SEPTEMBER 2010

FILE NO/S:   CACR 100 of 2010

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Appellant

AND

RYAN JAMES JOHNSON
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :GROVES DCJ

File No  :IND 647 of 2010

Catchwords:

Criminal law - State appeal against sentence - Possession of a prohibited drug with intent to sell or supply - Totality principle - Principles relevant to suspension of sentence - Error in imposing conditional suspended sentence - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 40(1)(e), s 41(4)(b), s 41(4)(e)
Misuse of Drugs Act 1981 (WA), s 6(1)
Sentencing Act 1995 (WA), s 32

Result:

Appeal allowed
Set aside orders made by sentencing judge relating to conditional suspension of the terms of imprisonment imposed on the respondent

Category:    B

Representation:

Counsel:

Appellant:     Mr B Fiannaca SC

Respondent:     Mr S Vandongen

Solicitors:

Appellant:     Director of Public Prosecutions (WA)

Respondent:     Mark Andrews Legal Pty Ltd

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

Attenborough v The State of Western Australia [2005] WASCA 132

Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49

Burke v The State of Western Australia [2007] WASCA 210

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

Cohen v The State of Western Australia [2007] WASCA 279

Dixon v The State of Western Australia [2006] WASCA 255

Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 354

Fernandes v The State of Western Australia [2009] WASCA 227

HV v The State of Western Australia [2006] WASCA 242

Jecks v The State of Western Australia [2007] WASCA 111

Lam v The State of Western Australia [2010] WASCA 61

McDougall v The State of Western Australia [2009] WASCA 232

Mishal v The Queen [2001] WASCA 328

Rigney v The State of Western Australia [2008] WASCA 96

RP v The State of Western Australia [2010] WASCA 75

Sabau v The State of Western Australia [2010] WASCA 3

Samuel v The State of Western Australia [2004] WASCA 154

The State of Western Australia v Andela [2006] WASCA 77

The State of Western Australia v Marchese [2006] WASCA 153

The State of Western Australia v Munro [2000] WASCA 285

The State of Western Australia v Saxild [2008] WASCA 156

The State of Western Australia v Skaines [2006] WASCA 160

The State of Western Australia v Wallam [2008] WASCA 117

Vagh v The State of Western Australia [2007] WASCA 17

Vogel v The State of Western Australia [2002] WASCA 261

Wong v The State of Western Australia [2004] WASCA 286

1. McLURE P: This is a State appeal against sentence. On 4 June 2010 the respondent was convicted on his fast‑track plea of guilty of four counts of dealing in a prohibited drug (cocaine) contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA) (the Act).

Background

1. The facts of the offending are as follows.  On 3 October 2009 the respondent offered to supply to Jacob Norman Buck 7 g of cocaine (count 1).  On 7 October 2009 the respondent met with Mr Buck at the respondent's home and supplied Mr Buck with 3.5 g of cocaine (count 2).  On 28 October 2009 the respondent met Mr Buck at a Perth restaurant and supplied him with 27.8 g of cocaine of a purity of 28% (count 3).  On the evening of 28 October 2009 the respondent was stopped by police and his vehicle was searched.  A search warrant was then executed at the respondent's home address.  When the police arrived at the premises the respondent's girlfriend was sitting in her car in the driveway.  Upon searching the car, the police located 64.74 g of cocaine of an average purity of 39% (count 4).  Aware of the respondent's arrest, the respondent's girlfriend removed the drugs from his home in an attempt to conceal the drugs from police.

2. On 11 June 2010 Groves DCJ sentenced the respondent to 8 months' imprisonment on count 1, 12 months' imprisonment on count 2, 30 months' imprisonment on count 3 and 40 months' imprisonment on count 4.  He ordered that the sentence imposed on count 2 be served cumulatively with the sentence on count 4 with the balance of the sentences to be served concurrently, resulting in a total effective sentence of 4 years 4 months.  The sentencing judge ordered that the total sentence of 4 years and 4 months be suspended for 2 years on condition that the respondent meets programme and supervision requirements. 

3. During the search of the respondent's home on 28 October 2009, police also located 436.93 g of cutting agent, a 'tick list' and $8,255 in cash. The respondent pleaded guilty to two offences under s 32 of the Sentencing Act 1995 (WA). The offences were that of being in possession of $3,500 and $4,910 respectively, both of which were reasonably suspected of being unlawfully obtained for which he was fined.

4. The State contends the total sentence of 4 years 4 months was so inadequate, both in its length and because it was suspended, as to manifest error. It was accepted that the double jeopardy principles had no application to this State appeal: s 41(4)(b) of the Criminal Appeals Act 2004 (WA); The State of Western Australia v Wallam [2008] WASCA 117 [29], [54].

5. The sentencing judge found that the respondent was a mid to upper level drug dealer who clearly had access to large quantities of drugs.  He continued:

   You were dealing for commercial gain, not only to support your own habit.  You were … not just a street level dealer.  They usually deal in small quantities.  You were dealing in much larger quantities.  All of this is evidenced by the tick‑list, the drug paraphernalia, the large sum of cash seized, the equipment, the sophistication of that.  That would all suggest high‑end dealing (ts 31).

6. The sentencing judge also noted that there was no evidentiary basis to find that any part of the cocaine found in the respondent's possession was for his personal use.

7. The respondent was aged 23 at the time of the offending.  He was living at home with his parents and had no relevant prior convictions.  The respondent had a stable and supportive upbringing and completed year 12.  At all material times, he was employed as an account manager with a newspaper.  The respondent advised the author of the pre‑sentence report that he was earning approximately $4,000 per month and had a debt of $10,000 which he was paying off by instalments.

8. The respondent was a drug user at the time of the offending.  He started using prohibited drugs around the time of a relationship breakdown when he was aged 21.  He ceased using prohibited drugs two weeks after he was charged with the offences for which he was being sentenced. 

9. Prior to sentencing, the respondent had participated in a Holyoake programme for dependent behaviours, received counselling from a registered psychologist (Mr B Wszola) and consulted a psychiatrist (Mr S Proud) who conducted urine tests which were clear.  Written reports from the psychologist and psychiatrist were before the sentencing judge who accepted the expert evidence that the respondent had responded well to treatment and was at a low risk of re‑offending in a similar manner.  Further, the respondent had addressed students at the school where his father worked about the dangers of drugs and his experience in that regard.  The evidence also established that the respondent had re­‑established his sporting interests, including in football and water sports. 

10. The sentencing judge took into account the significant number of character references filed on behalf of the respondent, many of which were provided by people connected with the respondent's parents.  The sentencing judge was influenced by the views expressed in some of the references which he said came from persons who held important positions in education, the church and in the sporting and business worlds.  He also had regard to what he referred to as the devastating impact of the respondent's situation on his parents and sister.  The State contends this is an irrelevant sentencing consideration.  Offending related emotional distress, shame or embarrassment suffered by an offender's family is not ordinarily relevant in the exercise of the sentencing discretion.

11. The sentencing judge found that the respondent was remorseful, of good character, in stable employment and that his family and a wide network of friends supported him in the positive steps he had taken towards his rehabilitation.

Additional material

1. At the hearing of the appeal the respondent sought to rely on material relating to events that post‑dated his sentencing.  There are reports from Mr Wszola, Dr Proud, Holyoake and others.  The material established that the respondent's counselling sessions with Mr Wszola had continued; his urine tests continued to be all clear; he had continued with the Holyoake programme; he was doing well at work; and further school sessions were planned.

2. The court has the power to take into account evidence of this nature: s 40(1)(e) and s 41(4)(a) of the Criminal Appeals Act 2004 (WA). There being no objection by the State to reliance on the additional material, leave should be granted in this case.

Sentencing principles

1. The relevant sentencing principles are not in dispute.  This court can only intervene if the appellant establishes that the sentencing judge made an express or implied material error of fact or law in the exercise of the sentencing discretion.  The State relies on implied error demonstrated by the nature and length of the total sentence.

2. 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].

3. 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.

Length of the term

1. The State contends the total sentence of 4 years 4 months' imprisonment infringes the first limb of the totality principle in that it is manifestly disproportionate to the degree of criminality involved in the offending conduct as a whole.  In assessing this question regard is had to the circumstances of the offences viewed in their entirety and all the circumstances of the case, including those referable to the offender personally.

2. Total sentences imposed in comparable cases provide a reference point against which a judgment can be made as to whether a total sentence is broadly in line with those customarily imposed in this jurisdiction, bearing in mind the significant variations in relevant sentencing factors:  Sabau v The State of Western Australia [2010] WASCA 3 [18].

3. Comparable drug dealing cases include HV v The State of Western Australia [2006] WASCA 242; Dixon v The State of Western Australia [2006] WASCA 255; Burke v The State of Western Australia [2007] WASCA 210; Vagh v The State of Western Australia [2007] WASCA 17; The State of Western Australia vAndela [2006] WASCA 77; McDougall v The State of Western Australia [2009] WASCA 232; Cohen v The State of Western Australia [2007] WASCA 279; Rigney v The State of Western Australia [2008] WASCA 96.

4. The State also relied on Bosworth v The State of Western Australia (2007) 175 A Crim R 49. As previously noted, it is wrong to regard pars [40] ‑ [41] of the judgment of Miller JA in Bosworth as providing a sentencing matrix for the determination of the appropriate sentence.  That is neither the intended nor a proper use of that material:  Fernandes v The State of Western Australia [2009] WASCA 227 [14]. Indeed, it is apparent from the decided cases that matters personal to an offender have a greater impact on the length of a term of imprisonment than on the type of sentence imposed.

5. When regard is had to the differences in relevant sentencing variables, it cannot be said that the length of the total sentence imposed on the respondent is disproportionate to the total criminality of his offending.  I would dismiss ground 1.

Suspension of sentence

1. 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 Western Australia [2004] WASCA 154; The State of Western Australia v Skaines [2006] WASCA 160; and The State of Western Australia v Marchese [2006] WASCA 153.

2. In Marchese, the respondent pleaded guilty to possession of 27.97 g of methylamphetamine and 2.06 g of MDMA with intent to sell or supply.  He was sentenced to terms of imprisonment of 2 years and 16 months respectively, with the terms to be served concurrently and with the terms suspended for 2 years.  The appellant had pleaded guilty on the fast‑track, was 24 years old, had no criminal record, supported his de facto partner and child and to some degree his mother.  A significant delay between the imposition of the sentence and the hearing of the State appeal and the application of the double jeopardy principle were the determinative factors in this court's decision to dismiss the appeal. 

3. In ordering suspension in this case the sentencing judge emphasised the appellant's age and prior good character.  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 v The 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.

1. The circumstances of the respondent's offending are very serious; indeed they are at a very significantly higher level of seriousness than in any case in which a sentence of imprisonment has been suspended.  The respondent was dealing in a significant quantity of prohibited drugs; he was found to be a mid to upper level dealer in drugs for commercial gain.  In that context, the mitigating factors including his age, prior good character, fast‑track plea, remorse, stable employment, steps towards rehabilitation, educative role and supportive network of family and friends are insufficient to make conditional suspended imprisonment an appropriate sentencing option. 

2. To suspend the term of imprisonment for the respondent's offending would be inconsistent with the standards of sentencing customarily imposed and undermine the courts consistent message to others contemplating the path taken by the respondent, which is that if you participate in the distribution of illegal drugs you should expect to serve time in prison.  I would uphold ground 2.

3. I would allow the appeal and set aside the orders made by the sentencing judge relating to the conditional suspension of the terms of imprisonment imposed on the respondent.  Subject to a reduction for any relevant time spent in custody, the respondent must serve the total effective term of 4 years 4 months' immediate imprisonment.  He will be eligible for parole after serving 2 years 2 months.

4. NEWNES JA:  I agree with McLure P.

5. MAZZA J:  I agree with McLure P.