The State of Western Australia v Polmear

[2013] WASCA 291

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- POLMEAR [2013] WASCA 291

CORAM:   McLURE P

PULLIN JA
MAZZA JA

HEARD:   9 DECEMBER 2013

DELIVERED          :   23 DECEMBER 2013

FILE NO/S:   CACR 197 of 2013

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Appellant

AND

MARK IVOR POLMEAR
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :BRADDOCK DCJ

File No  :IND 349 of 2013

Catchwords:

Criminal law - Prosecution appeal against order - Pre-sentence order

Legislation:

Criminal Appeals Act 2004 (WA), s 24(1)(b)
Sentencing Act 1995 (WA), s 33A(3)

Result:

Appeal allowed
Pre-sentence order set aside
Remitted to District Court for sentence by a different judge

Category:    B

Representation:

Counsel:

Appellant:     Mr B Fiannaca SC

Respondent:     In person

Solicitors:

Appellant:     Director of Public Prosecutions (WA)

Respondent:     In person

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

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

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

The State of Western Australia v Hatch [2008] WASCA 162

The State of Western Australia v Jenkin [2011] WASCA 171

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

The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137

1. McLURE P:  I agree with Mazza JA.

2. PULLIN JA:  I agree with Mazza JA.

3. MAZZA JA: This is a prosecution appeal against the imposition of a pre‑sentence order. The appeal is brought pursuant to s 24(1)(b) of the Criminal Appeals Act2004 (WA), which enables the prosecution to appeal against any order made as a result of a conviction.

4. On 2 August 2013, the respondent pleaded guilty in the District Court to 31 drug offences contained in an indictment.  On 3 October 2013, he was placed on a 6‑month pre‑sentence order.

5. The appellant alleges that the learned sentencing judge erred in imposing that order because immediate imprisonment is and will remain the only appropriate sentencing disposition.

6. For the reasons that follow, the ground has been made out and the appeal must be allowed.  The appropriate course is to remit the matter to the District Court for the case to be dealt with afresh by another judge. 

The factual background

1. On 22 May 2012, police obtained a telephone intercept warrant which enabled them to monitor the respondent's mobile telephone.

2. Between 22 May 2012 and 25 July 2012, police lawfully intercepted a number of telephone communications involving the respondent.  It is clear from those telecommunications that the respondent was engaged in the business of drug dealing.

3. Among the intercepted communications were telephone conversations between the respondent and unknown persons in which the respondent offered to sell or supply prohibited drugs of various weights and types, being cannabis (counts 16, 17 and 18) and methylamphetamine (counts 1 to 15 and 19 to 21).

4. The police also intercepted telephone conversations between the respondent and his partner, Beth Seale.  On nine occasions, the respondent and Ms Seale conspired with each other to sell or supply methylamphetamine (counts 23 to 31).  The intercepted conversations record them discussing the weight of the drugs to be sold or supplied and Ms Seale's role in delivering those drugs to the purchaser.

1. On 29 May 2012, the respondent and Ms Seale discussed and then arranged for the supply of 7 g of methylamphetamine for $4,400.  The respondent personally effected the sale at a carpark in High Wycombe (count 22).

2. On 25 July 2012, WA police executed a search warrant at the house in which the respondent and Ms Seale were living in High Wycombe.  During the search, the police located the mobile telephones used in the commission of the offences and various indicia of drug dealing, including electronic scales.  At that time, the respondent denied any involvement in the alleged offences.

3. The particulars of each count on the indictment may be summarised in tabular form in this way:

Indictment 349 of 2013
Count	Date	Offence	Drug Quantity	Price (if discussed)
1	6 June 2012	Offered to sell/supply methylamphetamine	0.1g	$100
2	14 June 2012	Offered to sell/supply methylamphetamine	0.1g	Not discussed
3	15 June 2012	Offered to sell/supply methylamphetamine	0.2g	Not discussed
4	21 June 2012	Offered to sell/supply methylamphetamine	1.75g	$1,250.00
5	29 June 2012	Offered to sell/supply methylamphetamine	1.75g or 3.5g	Not discussed
6	29 June 2012	Offered to sell/supply methylamphetamine	1.75g	$1,250.00
7	5 July 2012	Offered to sell/supply methylamphetamine	1.75g or 3.5g	$1,100.00 or $2,200.00
8	5 July 2012	Offered to sell/supply methylamphetamine	1.75g or 3.5g	$1,100.00 or $2,200.00
9	5 July 2012	Offered to sell/supply methylamphetamine	15 x 0.1g (1.5g)	$100.00 per 0.1g
10	6 July 2012	Offered to sell/supply methylamphetamine	0.2g	$200.00
11	6 July 2012	Offered to sell/supply methylamphetamine	0.1g	In exchange for working on the respondent's vehicle
12	6 July 2012	Offered to sell/supply methylamphetamine	1.75g	$1,150.00
13	6 July 2012	Offered to sell/supply methylamphetamine	1g	Not discussed
14	6 July 2012	Offered to sell/supply methylamphetamine	0.2g, 0.5g or 1.75g	Not discussed
15	13 July 2012	Offered to sell/supply methylamphetamine	0.5g or 1.75g	$400 for 0.5g
16	19 July 2012	Offered to sell/supply methylamphetamine	3 ounces	$1,000.00
17	20 July 2012	Offered to sell/supply cannabis	2 ounces	$350 per ounce
18	21 July 2012	Offered to sell/supply cannabis	1 ounce	$350.00
19	24 July 2012	Offered to sell/supply methylamphetamine	0.1g	Not discussed
20	24 July 2012	Offered to sell/supply methylamphetamine	1.75g	$1,100.00
21	25 July 2012	Offered to sell/supply methylamphetamine	1.75 g	$1,250.00
22	29 May 2012	Sold methylamphetamine	7 g	$4,400.00
23	30 ‑ 31 May 2012	Conspired to sell or supply methylamphetamine	1 g	$750.00
24	31 May 2012 - 1 June 2012	Conspired to sell or supply methylamphetamine	14 g	Not discussed
25	14 June 2012	Conspired to sell or supply methylamphetamine	0.15 g	Not discussed
26	4 July 2012	Conspired to sell or supply methylamphetamine	1.75 g or 3.5g	$950.00 or $1,900.00
27	7 July 2012	Conspired to sell or supply methylamphetamine	1.75 g	Not discussed
28	14 July 2012	Conspired to sell or supply methylamphetamine	0.1 g	Not discussed
29	14 July 2012	Conspired to sell or supply methylamphetamine	0.2 g	Not discussed
30	16 July 2012	Conspired to sell or supply methylamphetamine	0.5 g	Not discussed
31	20 July 2012	Conspired to sell or supply methylamphetamine	1.75 g	$1,100.00

1. The total amount of methylamphetamine involved in the offences was, at the least, 46.2 g (by reference to the smallest amounts offered by the respondent in relation to counts where more than one quantity was discussed) or, at the most, 56 g (by reference to the largest quantities offered by the respondent in relation to the counts where more than one quantity is discussed).  The total amount of cannabis offered for sale was 6 oz.  The prosecutor submitted that the total amount of money discussed was at least $18,600 and, at the most, $21,750 (ts 23).  Taken at its lowest, the respondent averaged $300 a day in drug sales between 22 May 2012 and 25 July 2012 (ts 57). 

The respondent's antecedents

1. At the time he was placed on the pre‑sentence order, the respondent was 33 years of age.  The respondent's upbringing was itinerant and dysfunctional.  He has never met his biological father.  His mother had chronic issues with illicit substance and alcohol abuse.  The respondent was exposed at an early age to domestic violence and was himself a victim of physical abuse by several of his mother's partners.  He also suffered sexual abuse.  At the age of 9, as a consequence of a traumatic event, the details of which are unnecessary to describe, he was sent to live with an uncle.  When he was 12 he returned to live with his mother and the man who the respondent regarded as his stepfather.  The respondent remained with his mother and stepfather until he was 19.

2. The respondent's life has been marred by substance abuse.  Illicit substance abuse has been entrenched and normalised for him from a young age.  The respondent reported that at the age of 4 his mother and her then partner would give him cannabis so that he could get 'stoned … for a joke'.  The respondent starting using cannabis on a daily basis when he was 13 years old and was a heavy user of this substance for many years.  He ceased using cannabis four years ago when his general practitioner refused to prescribe him antidepressants unless he stopped its use. 

3. The respondent first used methylamphetamine at the age of 18 and has been a regular user of that drug since he was 20 years old.  Despite his regular use of methylamphetamine, he has been able to remain employed.  The respondent has described himself as a 'high functioning user' of methylamphetamine. 

4. The respondent's record of convictions, which commenced when he was 21 years old, comprises mostly traffic offences.  The only drug offences concerned the cultivation and possession of cannabis and possession of various utensils for the smoking of that drug, for which he was fined in the Armadale Magistrates Court in 2009.  He was convicted of common assault in 2010.  He cannot be said to be a person of good character.

5. Since his arrest, the respondent has expressed a desire to cease his substance use and, according to the court appointed psychologist, Ms Roxanne Buktenica, he was motivated to change his lifestyle and had reported a significant reduction in his substance use 'over recent months'.  However, Ms Buktenica noted that the respondent lacks coping skills and associates with antisocial peers.  When stressed, he resorts to using illicit substances to cope.

The proceedings in the District Court

1. In the proceedings below, defence counsel submitted that the respondent was someone who was at the 'crossroads' of his life.  He submitted that the respondent had significantly reduced his drug use since being arrested and although there had been 12 relapses in over 12 months, the respondent was dedicated to change and should be placed on a pre‑sentence order to, in effect, facilitate his rehabilitation. 

2. The State's position was that the respondent's offending was simply too serious for such a disposition and that placing the respondent on a pre‑sentence order would be futile because the only appropriate disposition was a term of immediate imprisonment. 

3. In her sentencing remarks, her Honour acknowledged that the respondent had been dealing extensively in illicit drugs at a 'relatively low quantity street level'.  She further acknowledged that personal circumstances carry less weight in sentencing for offences of this sort, but said that the appellant's plea, his background and the fact that he was dealing principally to support his drug addiction were, to an extent, mitigating factors.  Her Honour accepted defence counsel's submission that the respondent was at a crossroads in his life.  She decided that in the circumstances the respondent should be allowed to demonstrate his commitment to his rehabilitation by way of a pre‑sentence order. 

Merit of the appeal

1. The legislative framework relating to a pre‑sentence order was considered by this court in The State of Western Australia v Hatch [2008] WASCA 162 [6] ‑ [12] and in The State of Western Australia v Jenkin [2011] WASCA 171.

2. A pre‑sentence order is not a sentence in itself. Section 33A(3) of the Sentencing Act 1995 (WA) provides that a pre‑sentence order may be made where the sentencing court considers that:

   (a)the offences warrant the imposition of a term of imprisonment;

   (b)that the order would allow an offender to address his or her criminal behaviour and any factors which contributed to that behaviour; and

   (c)if the offender was to comply with the order the court might not impose a term of imprisonment. 

3. A pre‑sentence order cannot be made if, at the time it is made, a sentence of immediate imprisonment was and would remain the only appropriate sentencing option even if the respondent complied with the pre‑sentence order.

4. The offences for which the respondent has been convicted are undoubtedly serious.  The maximum penalty for the offence of offering to sell or supply methylamphetamine is 25 years' imprisonment and/or a fine not exceeding $100,000:  Misuse of Drugs Act s 6(1)(c) and s 34(1)(a). The maximum penalty for offering to sell or supply cannabis is 10 years' imprisonment and/or a fine not exceeding $20,000: Misuse of Drugs Act s 7(1)(b) and s 34(2)(a). The maximum penalty for conspiring to sell or supply methylamphetamine is 20 years' imprisonment and/or a fine not exceeding $75,000: Misuse of Drugs Act s 33(2)(a) and s 34(1)(b).

5. The relevant sentencing principles with respect to offences of dealing or trafficking in dangerous drugs of addiction or those who conspire to sell such drugs are well established.  The predominant sentencing considerations are general and personal deterrence, the objective being to prevent the trafficking of drugs which cause so much harm in the community.  Factors of importance in the sentencing of these offences include the quantity and purity of the drug in question, the nature and level of the offender's participation in drug dealing within a particular organisation or generally and whether the offending was committed for commercial gain.  Matters personal to the offender are not irrelevant, but they are of subsidiary importance. 

6. The imposition of a sentence other than immediate imprisonment for offences of the kind committed by the respondent is, as a matter of fact, exceptional.  As McLure P explained in Cartwright v The State of Western Australia [2010] WASCA 4:

   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.  Thus, the imposition of a sentence other than immediate imprisonment for such an offence is, as a matter of fact, exceptional [9] (citations omitted).

7. The present case is not one where it would be open to the learned sentencing judge, even if the respondent successfully completed the pre‑sentence order, to impose anything other than a term of immediate imprisonment.  The seriousness of the respondent's criminal conduct comprehensively outweighed the mitigating factors present in the case, including his pleas of guilty, his dysfunctional background and his prospects of rehabilitation.

8. The respondent was engaged in the business of drug dealing in part to fund his own use, but in part for profit.  He did so over a period of almost two months.  Although many of the transactions involved quantities of less than 1 g of methylamphetamine, they were nevertheless numerous, regular and persistent.  The respondent may be considered to be at a low level in the drug hierarchy, but it is the experience of this court that it is vendors of this type who distribute much of the drugs that reach the streets.  They are vital links in the distribution of dangerous illicit drugs into the community. 

9. Not all of the offences involved small quantities.  There were a number of larger transactions involving quantities in excess of 1 g.  Count 22 involved the sale of 7 g. 

10. The conspiracy offences involved significant criminality.  It is clear from the materials before the primary court that the respondent and Ms Seale were in regular contact and made numerous agreements to supply methylamphetamine to others. 

11. With respect to her Honour, there is nothing in the circumstances of this case to reasonably justify a departure from the imposition of the ordinarily appropriate sentence of a term of immediate imprisonment.  It is not uncommon in cases of dealing in dangerous illicit drugs for offenders to have taken positive steps towards rehabilitation.  Immediate imprisonment is still the ordinarily appropriate sentence because of the importance which must be given to general deterrence:  The State of Western Australia v Johnson [2010] WASCA 187 [25]. In the present case, the respondent has not ceased using illicit drugs. This fact and his history of entrenched drug use means that personal deterrence is an important sentencing consideration because of the risk of reoffending: The State of Western Australia v Munda [2012] WASCA 164; (2012) 43 WAR 137 [65].

12. For all these reasons, it was not open to the sentencing judge to consider that if the respondent were to comply with the pre‑sentence order, she might not impose a term of immediate imprisonment.  Her Honour erred in imposing the pre‑sentence order. 

13. The respondent made no submission to the effect that if the ground of appeal was made out this Court should, nevertheless, dismiss the appeal in the exercise of its residual discretion:  Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; The State of Western Australia v Munda [26] ‑ [34]. In any event, having regard to the facts and circumstances of this case there would be no appropriate basis to do so.

14. I would allow the appeal, set aside the pre‑sentence order and remit the matter to the District Court to be sentenced by a different judge in accordance with these reasons.