The State of Western Australia v Littlefair
[2013] WASCA 177
•7 AUGUST 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- LITTLEFAIR [2013] WASCA 177
CORAM: BUSS JA
NEWNES JA
MAZZA JA
HEARD: 7 JUNE 2013
DELIVERED : 7 AUGUST 2013
FILE NO/S: CACR 231 of 2012
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
ELIZABETH ELLENE LITTLEFAIR
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :BIRMINGHAM DCJ
File No :IND 327 of 2012
Catchwords:
Criminal law - State appeal against sentence - Respondent convicted on her fasttrack plea of guilty of possessing methylamphetamine with intent to sell or supply it to another - 96.9 g of methylamphetamine with an average purity of about 40% - Primary judge imposed a sentence of 2 years 6 months' immediate imprisonment - Whether sentence manifestly inadequate
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a)
Result:
Appeal allowed
Sentence of 2 years 6 months' imprisonment set aside
Resentenced to 4 years' imprisonment
Category: D
Representation:
Counsel:
Appellant: Ms S H Linton
Respondent: Ms V Amidzic
Solicitors:
Appellant: Director of Public Prosecutions (WA)
Respondent: Amidzic Lawyers
Case(s) referred to in judgment(s):
Abfahr v The State of Western Australia [2013] WASCA 87
Baghdadi v The State of Western Australia [2011] WASCA 38
Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152
Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49
Cant v The State of Western Australia [2009] WASCA 188
Chan v The Queen (1989) 38 A Crim R 337
Chu v The State of Western Australia [2012] WASCA 135
Cohen v The State of Western Australia [No 2] [2007] WASCA 279
Colangelo v The State of Western Australia [2004] WASCA 294
Dann v The State of Western Australia [2006] WASCA 254
Dao v The State of Western Australia [2007] WASCA 237
Dixon v The State of Western Australia [2006] WASCA 255
Haasy v The State of Western Australia [2010] WASCA 207
Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465
Lam v The State of Western Australia [2010] WASCA 61
Lynch v The State of Western Australia [2011] WASCA 243
Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55
Nelis v The Queen [2000] WASCA 194
The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 199
The State of Western Australia v Bruce [2004] WASCA 226
The State of Western Australia v Fleming [2010] WASCA 162
The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302
The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363
The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137
The State of Western Australia v Tran [2008] WASCA 183
TLM v The State of Western Australia [2009] WASCA 106
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
Vagh v The State of Western Australia [2007] WASCA 17
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
BUSS JA: This is a State appeal against sentence.
On 20 September 2012, the respondent was convicted, on her fast‑track plea of guilty in the District Court before Birmingham DCJ, of one count in an indictment which alleged that on 5 February 2012, at Huntingdale, she had in her possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act).
The respondent was also convicted by his Honour, on her pleas of guilty, of four offences in a notice under s 32 of the Sentencing Act 1995 (WA). These offences comprised one charge of simple possession of cannabis, one charge of possession of $2,950 cash that was reasonably suspected of having been unlawfully obtained, and two charges of possession of a smoking implement.
The sentencing judge imposed individual sentences, as follows:
(a)the count in the indictment: 2 years 6 months' immediate imprisonment;
(b)simple possession of cannabis: 3 months' immediate imprisonment;
(c)possession of the $2,950 cash: 9 months' immediate imprisonment; and
(d)possession of the smoking implements: a fine of $1,000 on each charge with no time to pay and 4 days' imprisonment in default of payment.
His Honour ordered that the sentences of imprisonment be served concurrently. The total effective custodial sentence was therefore 2 years 6 months' immediate imprisonment. A parole eligibility order was made.
The State challenges the length of the term of immediate imprisonment (2 years 6 months) for the indictable offence.
I agree with Newnes JA that the appeal should be allowed. My reasons and the orders I would make are as follows.
The facts and circumstances of the indictable offence
On 5 February 2012, police executed a search warrant at the respondent's home in Huntingdale. She admitted, in answer to a direct question, that she was in possession of methylamphetamine. She directed the police to a safe in her bedroom. Police searched the safe and found two clipseal bags. One contained 81.7 g of methylamphetamine with a purity of 44%. The other contained 15.2 g of methylamphetamine with a purity of 36%. The total weight of the drug was 96.9 g. It had an average purity of about 40%.
During the search, the respondent admitted to the police that the methylamphetamine belonged to her and she intended to sell it. She sold the drug in 'halves ‑ anything really, not packets' (VROI 12). By this she meant 'half a ball' (1.75 g). At the sentencing hearing, her counsel acknowledged that the respondent usually sold methylamphetamine in either a full ball (3.5 g) for $2,000 or a half ball (1.75 g) for $1,000 (ts 21 ‑ 22). However, it was apparent from records she maintained of her drug sales that, on occasions, she sold the drug in larger quantities (ts 20).
When police searched the respondent's bedroom they found drug dealing paraphernalia including electronic scales, empty clipseal bags, spoons with visible drug residue and a quantity of MSM. The respondent admitted to the police that she used the scales to weigh drugs for sale and the MSM to dilute the drugs. Police found a total of $2,950 cash in the respondent's handbag and in other locations in her bedroom. She admitted to the police that this cash was the proceeds of drug sales. The search of the respondent's home also revealed three mobile telephones and a notebook with names, dollar values and other notations written by the respondent. She declined to comment about the notebook, but at the sentencing hearing her counsel accepted that it was a 'tick book', which contained a record of drug sales she had made and money owed to her by people who had purchased drugs on credit (ts 20 ‑ 22).
Defence counsel's submissions at the sentencing hearing
At the sentencing hearing, defence counsel said that the respondent resiled from one admission she had made to the police. This admission related to the MSM. Defence counsel told his Honour that, on her instructions, the respondent was not in fact using the MSM as a cutting agent. She was selling the methylamphetamine 'as is' (ts 18).
Defence counsel also informed the sentencing judge that, on her instructions:
(a)the quantity of 15.2 g of methylamphetamine had been in the respondent's possession 'for some time' and was 'the source of material that she was both using and supplying' (ts 18); and
(b)the quantity of 81.7 g of methylamphetamine had been in the respondent's possession 'for no more than about 24 hours, having been dropped off to her, and that was the general modus in terms of material being left with her' (ts 19).
According to defence counsel, the three mobile telephones were not 'in active use' (ts 19).
The sentencing judge's sentencing remarks
The sentencing judge made findings in his sentencing remarks as follows:
(a)The respondent was involved in 'street‑level dealing', but the quantities and amounts shown in the 'tick book' indicated that she was also selling larger amounts (ts 42, 44).
(b)The respondent had access to a supplier who was part of a larger commercial enterprise. The supplier had the capacity to obtain and pass on to the respondent large quantities of methylamphetamine with a high level of purity (ts 42, 44).
(c)The methylamphetamine in question was part of ongoing drug dealing by the respondent which involved 'some degree of commercial sophistication' (ts 42).
(d)The fact that the methylamphetamine, the subject of the count in the indictment, was of 'fairly high purity' demonstrated that it was able to be diluted, either by the respondent or someone else, in order to increase the volume of the drug available for sale. As to the MSM found in the respondent's possession, his Honour said:
I note there's a dispute as to whether the MSM in the bedroom was going to be used by you as a cutting agent. It's regularly found and it comes as no surprise that a quantity of MSM was found with a quantity of methylamphetamine, a set of scales and plastic bags because MSM is used as a cutting agent, and that it's in your bedroom supports an inference that it was being used as a cutting agent and that you had cut what you'd been supplied with for distributing (ts 42 ‑ 43).
(e)There was a causal connection between the respondent's substance abuse, on the one hand, and her drug dealing, on the other, but this is not uncommon and was not mitigatory (ts 42, 45).
(f)The respondent was aged 48 years. She was a 'good caring mother' who willingly made her time available to care for her adult children and her grandchildren. Also, she readily offered assistance to others. The respondent's adult son has been diagnosed with attention deficit hyperactivity disorder. He lives with the respondent at her home and is dependent on her. The respondent's husband is serving a prison sentence for other offending (ts 43).
(g)After her arrest, the respondent enrolled at Holyoake and completed a 12‑week programme including some individual counselling sessions. She had taken some positive steps towards her rehabilitation (ts 44).
(h)The respondent pleaded guilty at the earliest opportunity and cooperated fully with the police (ts 44).
The pre‑sentence report
The information before the sentencing judge included a pre‑sentence report dated 2 May 2012.
The report notes that the respondent was born on 15 August 1964. She left school in Year 10 and undertook some casual work at a grocery store and a petrol service station. She has not been otherwise employed in the workforce and has been a 'stay‑at‑home mother'. She has a grandson (the son of her adult daughter) who suffers from a neurological condition and requires continuous medical attention. The respondent commenced using cannabis as a teenager. Her drug use appears to have become a serious addiction in 2008 when she commenced using methylamphetamine. She claimed to have ceased using illicit substances after commencing counselling at Holyoake. The respondent owes her drug supplier about $65,000. She attributes her drug use to an inability to cope with her life circumstances including the incarceration of her husband and difficulties in raising her children. The methylamphetamine alleviated some of her anxieties and enabled her to remain alert while caring for her family.
The respondent told the author of the pre‑sentence report that if she was imprisoned her adult daughter would care for her adult son.
The respondent's prior criminal record
The respondent has a minor criminal record. The prior convictions are mainly for traffic offences. She has an old conviction for possessing cannabis. This offence was committed in 1984 and punished by a fine of $200. The respondent has not previously received a custodial sentence.
The ground of appeal
The sole ground of appeal relied on by the State is that the sentencing judge erred in law by imposing a sentence for the count in the indictment that was so inadequate as to manifest error.
On 10 December 2012, McLure P granted leave to appeal.
The ground of appeal: the respondent's submissions
Counsel for the respondent submitted that while the sentence of 2 years 6 months' imprisonment might be 'at the low end' of any relevant range of sentences, it was not 'so low as to compromise the objective of general deterrence or warrant appellate intervention'. The sentence was of sufficient length to achieve all relevant sentencing objectives.
Counsel emphasised the matters of mitigation including the fast‑track plea of guilty and the respondent's candour with the police officers who searched her home.
Counsel also submitted that the respondent did not distribute methylamphetamine 'into the community at large'. Rather, she sold and supplied the drug to 'a limited class of people', namely friends and acquaintances who were already habitual users of the substance.
According to counsel, the respondent's motives were in essence to finance her own drug use, to pay for basic living expenses and to repay a significant drug debt in circumstances where her addiction had escalated to unmanageable levels and she was anxious about remaining indebted to her supplier. The respondent used methylamphetamine to 'self‑medicate'.
The ground of appeal: its merits
A ground of appeal which asserts that a sentence is manifestly inadequate asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly inadequate, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
The maximum penalty for the offence of possessing a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) of the Act, is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the Act.
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. All of these propositions are well-established by the case law.
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the respondent, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. But the mere fact that a sentence is within the range of other sentences imposed for similar offences does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside that range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. These propositions are also well-established by the case law.
I have considered a substantial number of prior cases of offending against s 6(1) of the Act which have at least some features comparable to the respondent's offending. See Nelis v The Queen [2000] WASCA 194; Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55; Colangelo v The State of Western Australia [2004] WASCA 294; Dann v The State of Western Australia [2006] WASCA 254; Dixon v The State of Western Australia [2006] WASCA 255; Vagh v The State of Western Australia [2007] WASCA 17; Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152; Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49; Dao v The State of Western Australia [2007] WASCA 237; Cohen v The State of Western Australia [No 2] [2007] WASCA 279; (2007) 180 A Crim R 348; The State of Western Australia v Atherton [2009] WASCA 148; (2009) 197 A Crim R 199; Lam v The State of Western Australia [2010] WASCA 61; Haasy v The State of Western Australia [2010] WASCA 207; Lynch v The State of Western Australia [2011] WASCA 243. I have also considered other cases cited by the State.
It is readily apparent from the cases I have considered that the sentence of 2 years 6 months' immediate imprisonment imposed in the present case is significantly less than the range of sentences established by comparable cases. This marked disparity is an important factor in deciding whether the term of 2 years 6 months is manifestly inadequate. However, as I have mentioned, each case turns on its own particular facts and circumstances and sentencing ranges can provide only general guidance.
The respondent's offending was serious. She was in possession of a significant quantity of methylamphetamine with a relatively high degree of purity. The respondent was carrying on the business of a drug dealer. The total of 96.9 g of methylamphetamine was, to a very substantial extent, stock in trade of this business. The $2,950 cash found at her home was derived from the drug dealing business. Other items located by the police, namely the electronic scales, the empty clipseal bags, the spoons with visible drug residue, the quantity of MSM and the 'tick book', are part of the paraphernalia commonly associated with drug dealers.
Although the respondent was selling methylamphetamine at street level, she also sold some larger quantities. The sentencing judge's finding that the respondent was involved in 'street‑level dealing' appears to have been based on the fact that the $2,950 cash was in small denominations. The sale of some larger quantities was established by the respondent's admissions to police in a video‑recorded interview on 5 February 2012 and from the contents of the 'tick book'. The offence was not an uncharacteristic aberration. It was part of active and ongoing drug dealing which his Honour found involved some degree of commercial sophistication. The size of the respondent's drug debt (about $65,000) shows that the drug dealing business was not of recent origin. The respondent cannot be (and was not being) punished, in the context of the present offence, for her other drug dealing transactions, but these other transactions reflect on her moral culpability for the present offence.
The respondent had access to a supplier who was part of a larger commercial enterprise. She was able to obtain large quantities of methylamphetamine with a relatively high degree of purity.
The respondent's drug dealing was of a commercial nature in that she sold methylamphetamine for the purpose of financing her own drug use, paying for basic living expenses and repaying her drug debt. These motives are not unusual in cases of this kind. Selling prohibited drugs in order to discharge a drug debt is of no mitigatory significance. See Chu v The State of Western Australia [2012] WASCA 135 [33] (Mazza JA, Buss JA agreeing).
The fact that the respondent's client base comprised friends and acquaintances who were already habitual users of methylamphetamine is not mitigatory. The ongoing abuse of prohibited drugs of addiction causes serious harm, directly and indirectly, to the people who are addicted to the drugs, their families and the community generally. In any event, a perusal of the 'tick book' indicates that at least 14 different people had been purchasing drugs from the respondent.
The respondent was 47 when she committed the offence and was 48 when sentenced. She did not have the mitigation of youth or inexperience.
The respondent's personal circumstances and antecedents were, in general, reasonably good. She had only a minor criminal record and had taken some steps towards her rehabilitation. However, as I have mentioned, it is well‑established that matters personal to an offender who has dealt in prohibited drugs are almost always subsidiary considerations in the sentencing process. The principal sentencing considerations in the present case were appropriate punishment and general deterrence. Personal deterrence was also a relevant factor because the respondent committed the offence in question in the course of carrying on a drug dealing business of some duration.
It is commendable that the respondent is a 'good caring mother' and a person who readily offers assistance to others. The respondent's separation from her adult son (who has attention deficit hyperactivity disorder) will, no doubt, be distressing for both of them. However, in general, hardship to an offender's child is not a circumstance to be taken into account in the sentencing process. See Abfahr v The State of Western Australia [2013] WASCA 87 [71] (Buss JA, McLure P & Mazza JA agreeing) and the cases there cited. In the present case, any hardship to the respondent's son and her family generally cannot be characterised as extreme or exceptional. It appears that the respondent's adult daughter is available to care for the respondent's adult son.
I consider that the sentence of 2 years 6 months' immediate imprisonment for the count in the indictment was not commensurate with the seriousness of the offence. I am satisfied, after evaluating all relevant facts and circumstances and all relevant sentencing factors, that the length of the sentence was unreasonable or plainly unjust. This is the only conclusion reasonably open when the sentence is viewed from the perspective of the maximum penalty, the seriousness of the offending, the significance of appropriate punishment and general deterrence as sentencing factors and the relevance of personal deterrence, and after taking into account the general standards of sentencing applicable to the offence and the respondent's personal circumstances and antecedents. The sentence was not merely lenient or 'at the low end' of the available range.
The ground of appeal has been made out.
The result of the appeal and the resentencing of the respondent
I would allow the appeal.
Counsel for the respondent did not submit that the discretion under s 31(4) of the Criminal Appeals Act 2004 (WA) should be exercised. See The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137. The discretion should not be invoked. The sentencing judge imposed a sentence that was substantially less than the sentence open on a proper exercise of the sentencing discretion. The State has very clearly established appealable error. This court's intervention is necessary to ensure the preservation of proper sentencing standards for serious drug dealing offences which are, regrettably, prevalent in the community.
This court has the material necessary to resentence the respondent.
The sentence imposed by the sentencing judge for the count in the indictment, and his orders for concurrency, should be set aside. The other individual sentences imposed by his Honour were not challenged and they should stand.
After taking into account the maximum penalty, the facts and circumstances of the offence and all other relevant sentencing factors (including the fast‑track plea of guilty, the respondent's cooperation with the police and matters personal to her), I would impose a sentence of
4 years' immediate imprisonment for the count in the indictment. The new sentence should be taken to have taken effect on 20 September 2012, being the date on which the respondent was taken into custody for the relevant offences. The new sentence of 4 years' immediate imprisonment and the other individual sentences of imprisonment imposed by his Honour should be served concurrently. The new total effective custodial sentence is therefore 4 years' immediate imprisonment. The respondent should remain eligible for parole. She will be eligible to be considered for release on parole when she has served 2 years calculated from 20 September 2012.
Finally, I note that I have reduced the 'head sentence' (as defined in s 9AA(1) of the Sentencing Act) for the new sentence I have imposed for the count in the indictment by 25% in order to recognise the benefits to the State, and to any witness to the offence, resulting from the plea of guilty.
NEWNES JA: This is an appeal by the State against sentence. The respondent pleaded guilty in the District Court to one count of possession of methylamphetamine with intent to sell or supply, contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA), and, pursuant to a notice under s 32 of the Sentencing Act 1995 (WA), to four other charges, being one charge of possession of cannabis, one charge of possession of $2,950 cash reasonably suspected of having ben unlawfully obtained, and two charges of possession of a smoking utensil.
On 20 September 2012, Birmingham DCJ sentenced the respondent to a term of 2 years and 6 months' immediate imprisonment for possession of methylamphetamine with intent to sell or supply. In respect of the offences on the s 32 notice, terms of imprisonment were imposed for the offences of possession of cannabis and possession of the $2,950 cash, and fines were imposed for the other two offences. All of the terms of imprisonment were ordered to be served concurrently, resulting in a total effective sentence of 2 years and 6 months' immediate imprisonment.
The State appeals against the sentence for possession of methylamphetamine with intent to sell or supply, contending that it is manifestly inadequate.
On 10 December 2012, McLure P granted leave to appeal on that ground.
Background
On 5 February 2012, police executed a search warrant at the respondent's home. When asked by police if there were any drugs in the house, the respondent admitted she was in possession of methylamphetamine and directed police to a safe in the wardrobe area of her bedroom. The safe was found to contain two clipseal bags containing respectively 81.7 g (44% purity) and 15.2 g (36% purity) of methylamphetamine. The total weight of the drug was therefore 96.9 g with an average purity of 40%. During the search the respondent admitted to police that she intended to sell the drugs.
During the search of the bedroom the police also found indicia of drug dealing, including electronic scales, empty clipseal bags, spoons with visible drug residue and a quantity of MSM, a common cutting agent. The respondent admitted to police that she used the scales to weigh drugs to sell and MSM to cut the drugs for distribution. (The respondent sought to resile from the latter admission before the sentencing judge.)
In the respondent's handbag and in other locations in her bedroom police located a total of $2,950 in cash. The respondent admitted this money was the proceeds of drug sales. The search also located three mobile phones and a notebook with names and dollar values with notations written in it by the respondent. The respondent declined to comment on the book at the time but at the sentencing proceedings her counsel acknowledged it was a 'tick book', containing a record of drug sales the respondent had made and monies owed to her by persons to whom she had sold drugs.
The respondent pleaded guilty on the fast track to one count of possession of methylamphetamine with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act, and to the four counts on the s 32 notice relating to the drug paraphernalia found at her house.
Sentencing remarks
The sentencing judge considered that while the respondent was dealing in drugs 'at a street level', the large quantity and high purity of the methylamphetamine in her possession suggested that she was in contact with a supplier who was able to access methylamphetamine of a reasonably high purity and who was part of a broader commercial enterprise or close to the top of the supply chain (ts 42). His Honour concluded that the respondent had intended to use the MSM found in her possession as a cutting agent in the distribution of the drug.
His Honour noted that the respondent was 48 years old and lived with her 27‑year‑old son, her adult daughter and the daughter's child. The respondent was the carer for her son who has ADHD. The respondent was dealing in drugs in order to fund her own drug addiction and to repay a substantial drug debt.
The sentencing judge took into account in mitigation the respondent's plea of guilty at the earliest opportunity and her co-operation with police.
The sentencing judge sentenced the respondent as follows:
Offence
Sentence
Possession of prohibited drug (methylamphetamine) with intent to sell or supply: Indictment
2 years 6 months' imprisonment
Possession of prohibited drug (cannabis): s 32 notice
3 months' imprisonment concurrent
Possession of unlawfully obtained property ($2950 in cash): s 32 notice
9 months' imprisonment concurrent
Possession of smoking utensil: s 32 notice
$1,000 fine
Possession of smoking utensil: s 32 notice
$1,000 fine
The total effective term of imprisonment was therefore 2 years 6 months.
Ground of appeal
The sole ground of appeal is that the sentence of 2 years and 6 months' immediate imprisonment for possession of methylamphetamine with intent to sell or supply was manifestly inadequate.
Disposition of the appeal
The relevant general principles are well‑known. When considering whether a sentence is manifestly excessive or inadequate, it is necessary to view the sentence in light of the maximum sentence prescribed by law for the crime (in this case, 25 years' imprisonment), the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type, and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
However, in considering customary sentencing standards, caution is needed when trying to determine the level of severity of a particular sentence by comparison with those imposed in other cases. That is because there will inevitably be differences in the circumstances of offenders and offences. But it is appropriate to review sentences for like offences in an attempt to achieve consistency in sentencing: see The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302 [19]; Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465 [53].
The major consideration in the sentencing process for an offence of this nature is personal and general deterrence: Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [52]. The amount of drugs involved is a significant factor in determining an appropriate sentence, as is the degree of purity: The State of Western Australia v Marchese [2006] WASCA 153; (2006) 163 A Crim R 363 [9]; The State of Western Australia v Tran [2008] WASCA 183 [9]. But there are other matters which must also be taken into account including the nature and level of the offender's participation in drug dealing and whether the offending was committed solely for commercial gain: see Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [67] ‑ [70]; Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107 [50]; Borbil [52]. Matters personal to the offender are of limited weight: see Tulloh [12], [43], [46].
The appellant referred to a number of cases in support of its contention that the sentence was manifestly inadequate. It is unnecessary to canvass them all. It is sufficient to refer to the following.
In Lynch v The State of Western Australia [2011] WASCA 243, the offender pleaded guilty to one count of possessing a total of 34 g of methylamphetamine (of 34% purity), and to two offences relating to cannabis on a s 32 notice. He used some of the methylamphetamine for personal use and to share with friends, and sold some to off‑set some of the costs he incurred in acquiring the drug. He was sentenced to 3 years and 6 months' imprisonment on the indictable offence, and to terms of 6 months and 2 months' imprisonment respectively on the counts on the s 32 notice, all of the terms to be served concurrently. An appeal against sentence was dismissed.
In TLM v The State of Western Australia [2009] WASCA 106, the offender pleaded guilty to one count of selling 13.8 g of methylamphetamine (of 30% purity) and to a second count of attempting to possess 14 g with intent to sell or supply. Sentences of concurrent terms of 3 years' imprisonment on the first count and 2 years' imprisonment on the second count were reduced on appeal to concurrent terms of 22 months on the first count and 14 months on the second count, on the ground that the offender had provided substantial assistance to police which helped to bring about the conviction of a drug supplier.
In Cant v The State of Western Australia [2009] WASCA 188, the offender pleaded guilty to possession of 69 g of methylamphetamine (of 21% purity) with intent to sell or supply. The offender had some previous minor drug convictions and was considered a 'low to mid range' dealer. An appeal against a sentence of 4 years' imprisonment (described as being at the higher end of the range) was dismissed.
In The State of Western Australia v Fleming [2010] WASCA 162, the offender pleaded guilty to possession of 100 g of a substance with 4% methylamphetamine and 5% pseudoephedrine. A State appeal against a sentence of 2 years' imprisonment was upheld and a sentence of 3 years and 6 months' imposed.
In Dixon v The State of Western Australia [2006] WASCA 255, the offender pleaded guilty to one count of possession of 56.17 g of methylamphetamine with intent to sell or supply and was sentenced to 3 years and 2 months' imprisonment. An appeal against sentence was dismissed.
In Haasy v The State of Western Australia [2010] WASCA 207, the offender pleaded guilty to three counts of possessing methylamphetamine with intent to sell or supply. The three counts concerned amounts of 3.79 g (at 2% purity), 9.54 g (at 5% purity) and 25.22 g (at 10% purity) respectively. An appeal against a total effective sentence of 4 years and 5 months' imprisonment was allowed and a term of 3 years and 6 months' imprisonment imposed.
In Dao v The State of Western Australia [2007] WASCA 237, the offender pleaded guilty to two counts of possession of methylamphetamine with intent to sell or supply, one count being in respect of 56.03 g at 59% purity and the other in respect of 119.2 g at 49% purity. The offender was a courier bringing the drugs to Perth from Sydney for $10,000, rather than a dealer. She was sentenced to 4 years' imprisonment on each count, with one term to be served partly concurrently with the other, resulting in a total effective sentence of 6 years' imprisonment. An application for leave to appeal against sentence was dismissed.
In Baghdadi v The State of Western Australia [2011] WASCA 38, the offender pleaded guilty to possession of 15.78 g of methylamphetamine (at 9% purity) with intent to sell or supply and was sentenced to 2 years and 3 months' imprisonment to be served concurrently on another sentence. The offender had prior convictions including for possession of drugs but had never been imprisoned before. An aggravating factor in that case was that the offence was committed whilst the accused was on bail. The offender had a history of substance abuse and was a carer for his invalid father, who was partially paralysed by a stroke, and his aged mother. An appeal against sentence was dismissed.
In the present case the respondent had in her possession 96.9 g of methylamphetamine with an average purity of 40%. The sentencing judge found that the quantity and purity of the drugs in her possession suggested a connection with a supplier high in a drug dealing chain. The drug dealing paraphernalia in her possession, including the cutting agent, supported an inference that the respondent had cut the methylamphetamine for distribution and was involved in substantial dealing in the drug. Her motive for dealing was in part to finance her own drug use and in part to pay off a drug debt.
The respondent has prior convictions for possession of cannabis but no other convictions in relation to drugs. The only mitigating factors were, as noted by the sentencing judge, the respondent's co-operation with police and her fast‑track plea of guilty.
The personal circumstances of an offender are ordinarily not a significant factor in sentencing for offences of this nature and there is nothing in the respondent's personal circumstances of a mitigating nature. Whilst the respondent has been the carer of her son, generally the impact of a sentence of imprisonment on the offender's family or children is given little or no weight: The State of Western Australia v Bruce [2004] WASCA 226 [52]. There is no basis for departing from that position in this case. In any event, there was no positive evidence of any material deleterious impact that a sentence of imprisonment would have on the
respondent's son. There was no evidence that he could not be cared for by his sister, who also occupies the respondent's house, or by others. Indeed, according to the author of the pre‑sentence report the respondent envisaged that her daughter would take care of him in such circumstances.
In the circumstances, the sentence of 2 years and 6 months' imprisonment was manifestly inadequate. I would allow the appeal and set aside the orders made by the sentencing judge.
Resentencing
It is then necessary to resentence the respondent. This court has the necessary material and it is appropriate that it do so.
Having regard to the matters canvassed above, I consider that an appropriate sentence on the count of possession of methylamphetamine with intent to sell or supply is a term of 4 years' immediate imprisonment. In so concluding, I have reduced the 'head sentence' (as defined in s 9AA(1) of the Sentencing Act) by 20% in order to recognise the benefits to the State, and to any witnesses to the offence, resulting from the plea of guilty.
I would order that the terms of imprisonment imposed by the sentencing judge in respect of the two counts on the s 32 notice be served concurrently with the sentence imposed on this count. The respondent would remain eligible for parole.
Conclusion
I would:
1.allow the appeal;
2.set aside the orders made by the sentencing judge;
3.sentence the respondent to a term of 4 years' immediate imprisonment on the count on the indictment, that sentence to be taken to take effect on 20 September 2012;
4.order that the terms of imprisonment imposed on counts 2 and 3 on the s 32 notice be served concurrently with the term imposed in par 3 above;
5.order that the respondent be eligible for parole.
MAZZA JA: I agree with Buss JA.
23
31
2