The State of Western Australia v MacKenzie
[2011] WASCA 116
•13 MAY 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MACKENZIE [2011] WASCA 116
CORAM: McLURE P
PULLIN JA
MAZZA J
HEARD: 12 APRIL 2011
DELIVERED : 13 MAY 2011
FILE NO/S: CACR 19 of 2011
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
CHAD DERREN MACKENZIE
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STEVENSON DCJ
File No :IND 1360 of 2010
Catchwords:
Criminal law - Court order presentence order - Drug trafficking offences and other imprisonable drug offences - Whether the sentencing judge erred in making a presentence order
Legislation:
Criminal Appeals Act 2004 (WA), s 24(1)(a)
Criminal Investigation Act 2006 (WA)
Misuse of Drugs Act 1981 (WA), s 5(1)(d), s 6(1), s 6(2), s 34(1)(a), s 34(2)(a)
Prisons Act 1981 (WA), s 79
Sentencing Act 1995 (WA), pt 3A, s 33A, s 33A(2), s 33A(3), s 33A(3)(b), s 33A(3)(c), s 33A(5), s 76, pt 13
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr P D Yovich
Respondent: Ms V Amidzic
Solicitors:
Appellant: Director of Public Prosecutions (WA)
Respondent: Amidzic Lawyers
Case(s) referred to in judgment(s):
Bellissimo v The Queen (1996) 84 A Crim R 465
Haasy v The State of Western Australia [2010] WASCA 207
Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465
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 Fleming [2010] WASCA 162
The State of Western Australia v Hatch [2008] WASCA 162
The State of Western Australia v Johnson [2010] WASCA 187
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
McLURE P: I agree with Pullin JA. At the time the sentencing judge made the pre‑sentence order (PSO), a sentence of immediate imprisonment was the only appropriate sentencing option and would remain so even if the respondent were to comply with the PSO. The circumstances of the indictable offences were serious having regard to the quantity of the prohibited drugs, the level of purity of the methylamphetamine, which placed the respondent close to the source of manufacture, and the steps taken by the respondent to dispose of some of the drugs in his possession prior to his arrest.
Further, the appellant had a prior record of convictions for drug offences. In March 2005, he was convicted of multiple offences under s 6(1) of the Misuse ofDrugs Act 1981 (WA) (selling amphetamines or being in possession of amphetamines with intent to sell or supply). A total sentence of 3 years 8 months' imprisonment was imposed for those offences and the respondent was declared to be a drug trafficker. In 1997, the respondent was convicted of one count of possession of cannabis with intent to sell or supply.
The respondent was aged 39 when he committed the offences. Although he had a long history of entrenched drug abuse, the respondent described himself as high functioning. He was employed in the crayfishing industry for 12 years and at the time of sentencing was working as a painter and decorator, receiving $880 per week from that employment.
The sentencing judge found there was a causal connection between the respondent's substance abuse and his drug dealing. A review of the voluminous sentence appeals in this jurisdiction relating to drug dealing reveals that this is a common association. It is not itself mitigatory: The State of Western Australia v Andela [2006] WASCA 77 [15].
To his credit, the appellant was taking positive steps towards addressing his substance abuse problem. However, that is not uncommon with defendants convicted of offences under s 6(1): see The State of Western Australia v Johnson [2010] WASCA 187 [23] ‑ [25]; The State of Western Australia v Buck [2010] WASCA 188.
As repeatedly emphasised by this court in comparable cases, significant weight is given to general deterrence with a correspondingly reduced weight given to matters personal to the offender. Even assuming demonstrated rehabilitation at the end of the term of the PSO, reasonable consistency in the application of sentencing principles and outcomes in
comparable cases requires the imposition of a term of immediate imprisonment in this case.
PULLIN JA: This is a State appeal against a pre‑sentence order imposed by a judge of the District Court. Leave to appeal has already been granted.
On 21 January 2011, the respondent was convicted on his own fast‑track pleas of guilty of two counts of possession of a prohibited drug with intent to sell or supply to another contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA) (MDA). On the same day the respondent also pleaded guilty to, and was convicted of three charges contained in a s 32 notice. All the counts and charges arose out of offending conduct which occurred on 23 April 2010. The particulars of the counts and charges were as follows:
Indictment 1360 of 2010
| Count | Offence | Date & Place | Quantity | Approx. Purity |
| 1 | Possession of methylamphetamine with intent to sell/supply: s 6(1) MDA | 23/4/2010 (Sand dune track) | 31.43 grams | 27.0g: 48% 2.05g: 57% |
| 2 | Possession of cannabis with intent to sell/supply: s 6(1) MDA | 23/04/2010 (Respondent's house) | 281.75 grams | N/A |
Section 32 notice
| 1 | Possession of cannabis: s 6(2) MDA Charge: PE 31589/10 | 23/4/2010 (Sand dune track) | 0.57 grams | N/A |
| 2 | Possession of a smoking utensil: s 5(1)(d) MDA Charge: PE 31590/10 | 23/04/2010 (Respondent's house) | 2 utensils | N/A |
| 3 | Possession of methylamphetamine: s 6(2) MDA Charge: PE 31591/10 | 23/04/2010 (Respondent's house) | 0.67 grams | N/A |
The maximum penalty in relation to count one on the indictment was 25 years' imprisonment or a fine not exceeding $100,000 or both pursuant to s 34(1)(a) of the MDA. The maximum penalty in relation to count 2 was 10 years' imprisonment or a fine not exceeding $20,000 or both: s 34(2)(a) MDA.
On 21 January 2011, the sentencing judge made a pre‑sentence order for a period of 18 months with programme and supervision conditions. The pre‑sentence order was scheduled for review on 29 July 2011.
The State has a right of appeal under s 24(1)(a) of the Criminal Appeals Act 2004 (WA): The State of Western Australia v Hatch [2008] WASCA 162 [7].
The State appeals on the ground that it should be inferred the sentencing judge's discretion miscarried and that it should be inferred that he erred in forming the opinion that if the respondent were to comply with the PSO, a term of immediate imprisonment might not be imposed.
Facts
Count 1 - possession of methylamphetamine with intent to sell or supply
At about 9.45 am on Friday, 23 April 2010, the respondent was driving a Holden utility in a northerly direction along West Coast Highway in City Beach. The respondent was stopped by police in relation to an unrelated traffic matter. As police conducted a motor driver's licence check, the respondent left the vehicle and ran through a car park and up a sand dune track towards the beach shoreline. Police officers followed the respondent and observed him throw a plastic clipseal bag to the left‑hand side of the sand dune track. The bag was later recovered and found to contain a brown crystalline substance which was analysed and found to be 27.00 g of methylamphetamine of 48% purity.
Police also observed the respondent rip apart a second plastic clipseal bag, throwing remnants of the plastic bag onto the sand track. Remnants of the ripped up plastic bag were recovered, as well as brown crystalline substance from the clip seal bag at the base of the sand dune track. Some of the brown crystalline substance, mixed with sand, was recovered from the track. The substance was analysed and found to contain a mixture of sand and methylamphetamine weighing in total 1.48 g of methylamphetamine, with the purity being unable to be ascertained. Police also observed the respondent throw another clipseal plastic bag at the base of the sand dune track. This bag was recovered and later analysis found the substance contained 2.05 g of methylamphetamine with a purity of 57%.
The respondent ran to the shoreline, where he cupped his hands in the ocean, disposing of an unknown substance. He was arrested and returned to the location of his abandoned motor vehicle. A search of the respondent's motor vehicle was conducted and police located the following items in a bag belonging to the respondent: $3,750 cash in $50 denominations inside a sunglass case, 0.9 g of a brown crystalline substance which later analysis found the substance to be methylamphetamine. A further $200 cash was also seized as a result of a personal search.
The total amount of methylamphetamine the subject of count 1 was 31.43 g, of which 27.0 g was 48% purity and 2.05 g was of 57% purity. The purity of the remaining 2.38 g was unable to be ascertained due to being mixed with sand. The respondent participated in a scene interview and denied possession or knowledge of any of the brown crystalline substance seized. In his video record of interview, he admitted ownership of the cash, claiming that it was part of his savings which he had acquired from work, his father and the sale of paddle boards.
Section 32 notice - simple possession of cannabis (PE 31589/10)
When searching the route taken by the respondent between West Coast Highway and the beach, police located a small plastic clipseal bag and that contained 0.57 g of cannabis head material.
Count 2 - possession of cannabis with intent to sell or supply
At 2.55 pm that same day, the police conducted a search of the respondent's house in Hamilton Hill using powers under the Criminal Investigation Act 2006 (WA). Prior to searching the residence, the respondent declared the location of approximately 14 ounces of hydroponic cannabis head material packaged in plastic and tin containers that he had stored in his bedroom within a laundry basket.
Also located on the kitchen bench was a small amount of cannabis material in a tin container. The respondent admitted ownership of the cannabis material. A quantity of unused small clipseal plastic bags, a set of electronic scales and a journal detailing amounts of money owed to or by the respondent were also seized. The total weight of the cannabis the subject of count 2 was 281.75 g.
Section 32 notice - possession of smoking utensils (PE 31590/10)
During the search of the respondent's house, the police also located two smoking implements in the house, one on the kitchen bench and one in a toolbox in a rear garage. The respondent admitted ownership of the implements, stating that he used them for smoking cannabis.
Section 32 notice - simple possession of methylamphetamine (PE 31591/10)
Police also located a small plastic clipseal bag in the kitchen which contained 0.67 g of brown crystalline substance which was tested and found to be methylamphetamine. The respondent admitted ownership of this quantity of methylamphetamine and stated it was for personal use.
In the District Court, counsel for the respondent conceded that the seriousness of the offending the subject of count 1, was such that imprisonment was the only appropriate disposition, but submitted that suspension was appropriate.
There was nothing unusual about the matters favourable to the respondent. He was not young. He was 39 years of age and his background and family circumstances were unexceptional.
The respondent had a criminal record including convictions on 3 March 2005 of multiple drug offences under s 6(1) of the MDA for which he was sentenced to a total term of 3 years 8 months' imprisonment. He was also declared to be a drug trafficker.
The offences committed by the respondent were serious because of the quantity of the drugs, the purity of the drug, the behaviour of the respondent at the time of his arrest and the level of involvement of the respondent in the distribution of the drugs. The total amount of methylamphetamine was 31.43 g at a purity of 48% and 57%. The purity of methylamphetamine for the purposes of street dealing is ordinarily about 8% to 10%: The State of Western Australia v Fleming [2010] WASCA 162 [22]. The sentencing judge correctly described the methylamphetamine as a 'commercial quantity at a commercial purity'.
Part 3A was inserted into the Sentencing Act 1995 (WA) in 2003. Section 33A, which is in that part, provides for the making of pre‑sentence orders (PSO). Section 33A(2) states that the section applies if a court is sentencing an offender for one or more imprisonable offences, none of which is an excluded offence, at a time when the offender is neither serving nor is liable to serve a term of imprisonment for another offence. An 'imprisonable offence' means an offence, the statutory penalty for which is or includes imprisonment and an 'excluded offence' means an offence, the statutory penalty for which includes mandatory imprisonment or an offence under s 79 of the Prisons Act 1981 (WA). All the offences which the appellant committed were imprisonable offences.
Section 33A(3) reads:
If this section applies, the court may make a PSO in respect of the offender if it considers -
(a)that the seriousness of the imprisonable offence or offences warrants the imposition of a term of imprisonment under Part 13;
(b)that a PSO would allow the offender to address his or her criminal behaviour and any factors which contributed to the behaviour; and
(c)that if the offender were to comply with a PSO the court might not impose a term of imprisonment under Part 13 for the offence or offences.
Part 13 of the Sentencing Act deals with the ultimate sentencing option of immediate imprisonment.
Section 33A(3) provides that a PSO may be made when the offences for which the offender is to be sentenced on a particular day, warrants the imposition of a term of imprisonment under pt 13. In other words, if sentencing had to occur on that day, imprisonment would be the appropriate remedy. However, the section also indicates that if there are factors contributing to the offender's criminal behaviour and any matters that allow the offender to address this behaviour, then a PSO order may be made if the court considers that it might not impose a term of imprisonment if those matters were addressed. The court must not make a PSO in respect of an offender unless it has received a pre‑sentence report about the offender: s 33A(5). The section authorises the court to later impose a sentence other than imprisonment if the matters referred to in s 33A(3)(b) are addressed. Thus, some offenders by that process may not have to be imprisoned.
In the Second Reading Speech to the Sentencing Legislation Amendment and Repeal Bill 2002 which resulted in the introduction of s 33A, the responsible minister indicated that the whole package of reforms, including the introduction of pt 3A was aimed at reducing the rate of imprisonment in Western Australia. He described this as the 'reducing imprisonment strategy'. He said:
For some years now Western Australia has had the unenviable honour of having the second highest rate of imprisonment in Australia. Figures for 2000-01 show the rate of imprisonment in Western Australia is 220 per 100,000 of population compared with the national average of 144 per 100,000. The rate of indigenous imprisonment is a much bleaker situation. That rate of imprisonment in Western Australia is 3,018 per 100,000 compared with the national average of 1,727 per 100,000. This is a national disgrace that needs to be addressed immediately. … The reducing imprisonment strategy centres on administrative and legislative reforms and also encompasses work in the area of diversion strategies and programmatic intervention. …
[T]he current powers of the court to adjourn sentencing for up to six months are to be extended to allow for adjournments of up to 12 months. The purpose behind such a move is to give an offender who is facing a term of imprisonment an opportunity to address his offending behaviour and hopefully turn his life around prior to the court imposing a sentence upon him.
This explanation confirms the evident purpose of s 33A.
The sentencing judge correctly directed himself that the seriousness of the offences warranted the imposition of a term of imprisonment under pt 13. His Honour said that if the offender was to be sentenced on 21 January 2011:
[A] term of immediate imprisonment is the only term or sentencing disposition which is open, having regard to the information before me and the submissions made by your counsel (AB 95).
As to s 33A(3)(b) and (c), his Honour found that:
(a)the offences occurred after a relapse by the respondent of drug use this having followed a long history of drug abuse and past addiction (AB 92 and 93);
(b)in the period between the commission of the offences and April 2010 and January 2011, the respondent had reached a point in his life where 'the penny has finally dropped' and that he had decided that he would change his previous use of drugs totally so far as the future was concerned (AB 91);
(c)the respondent's changed attitude was borne out by eight pieces of evidence; first the provision of urinalysis reports after November 2010 showed that he had not used amphetamines or methylamphetamine and that since he appeared in the court in November 2010, he had ceased using cannabis; secondly, that he had sought one‑to‑one counselling to address factors contributing to his behaviour; thirdly, that he had not only sought counselling but had regularly attended counselling; fourthly, that he had attended on his GP and discussed the position fully and frankly with his friends and family in the recovery process; fifthly, that he had ended a relationship with a partner in October 2010 and that this had not caused a relapse into drug use; sixthly, that he was employed and well regarded by his employer; seventhly, that he came from a stable and supportive family background and eighthly, that he had successfully completed a parole term (AB 91 ‑ 95).
As a result of these personal factors, the sentencing judge concluded that he might not impose a term of imprisonment when the respondent appeared before him in July 2011 and he thereupon made the PSO.
The appellant advances a very simple argument. It points to decisions of this court which state that the major sentencing considerations in drug trafficking cases are personal and general deterrence and that personal factors are of very little importance (see Bellissimo v The Queen (1996) 84 A Crim R 465, 471; The State of Western Australia v Andela [2006] WASCA 77 [16] ‑ [17]); that immediate imprisonment is the usual sentence and that a suspended sentence is to be regarded as an exceptional disposition: Andela [17]. The appellant therefore, submits that the sentencing judge erred in the exercise of his discretion because he should have reasoned that even if the respondent came through the 18 month period of the PSO with flying colours, and satisfied the sentencing judge in 2011 that he had completely overcome his drug addiction and was rehabilitated, those personal factors would not have been sufficient to justify the exceptional disposition of a suspended sentence.
The respondent argued that this was an exceptional case. The submission was that the effort that the respondent had made to overcome his addiction showed that he was genuine and that there were signs that he would be successful in his efforts to cease using illegal drugs. The appellant answered this in two ways. First the appellant points out that these were recent efforts and that the respondent continued using cannabis from the time he was arrested up until his appearance in court in November (as was the case) and that there were only a limited number of instances where he had returned a clear urinalysis. Secondly, the appellant submitted that in any event those factors would not amount to exceptional reasons justifying a suspended sentence.
The respondent's counsel pointed to the fact that the respondent was dealing and supplying in order to support his own habit. The appellant met this by pointing to the fact that the value of the methylamphetamine which was the subject of the charge, and which was all that the police could recover after the appellant had been chased, was valued at $24,000. The appellant also pointed to the fact the methylamphetamine was of a high level of purity which must lead to the inference that the respondent was not dealing at street level but was higher up the dealing chain. In any event, even if it were true that the respondent was committing offences to finance his own drug habit, it is a circumstance insofar as it is mitigatory, which must be so only within strict or narrow limits: see Andela [15]; Haasy v The State of Western Australia [2010] WASCA 207 [19]. There is no principle that dealers who are also drug addicts should be treated more leniently merely because their motive for dealing is the need for money to finance their drug habit: Andela [15].
Finally, the respondent submitted that the appellant's submission that immediate imprisonment was inevitable in the circumstances of this case, was to suggest that there should be a fetter on the sentencing discretion in a manner not sanctioned by the law. It was submitted that this would amount to a regime of mandatory sentencing.
It is quite correct to say that it would be wrong to contend that a particular type of offence must invariably, or always, be visited with immediate imprisonment. To adopt that approach would be incorrect in law because it would deny the operation of s 76 of the Sentencing Act. It is always necessary to make the decision about the appropriate sentence in the light of the circumstances of the individual offence and of the individual offender. However, it would be apt to observe that serious offences of this kind would ordinarily attract a sentence of immediate imprisonment: see Andela [3] (Roberts‑Smith JA).
In Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465 their Honours referred with approval to what Gleeson CJ said in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [6], namely:
The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.
Their Honours added that the consistency that is sought is consistency in the application of the relevant legal principles and that by 'reasonable consistency', what is sought is the treatment of like cases alike and different cases differently.
In this case, there is no doubt that consistent with the principles established by this court, a person convicted of possession of the quantity of drug involved here, at the degree of purity revealed here, and with this person's background, would be sentenced to a term of immediate imprisonment even if there existed a promise or unequivocal evidence that the person had overcome his problems with addiction.
This decision does not emasculate s 33A. The section has its work to do in relation to offences of all kinds where personal factors very much influence the decision about whether a term of immediate imprisonment should be imposed. The circumstances of this case and the principles adopted in this court in relation to drug trafficking offences of this severity, show that personal factors have little influence on the outcome; that personal and general deterrence are the principal sentencing considerations and that save in exceptional circumstances, imprisonment is the appropriate sentence. There are no exceptional circumstances in this case.
The sentencing judge erred in concluding that if the PSO was complied with, he might not impose a term of immediate imprisonment.
As a result, the appeal should be allowed and the PSO set aside. As the respondent has not been sentenced, the matter should be remitted to the District Court for the respondent to be sentenced by a different sentencing judge.
MAZZA J: I agree with Pullin JA.
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