The State of Western Australia v Skaines
[2006] WASCA 160
•11 AUGUST 2006
THE STATE OF WESTERN AUSTRALIA -v- SKAINES [2006] WASCA 160
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 160 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:160/2005 | 22 MARCH 2006 | |
| Coram: | ROBERTS-SMITH JA MCLURE JA BUSS JA | 11/08/06 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA CRAIG SKAINES |
Catchwords: | Appeal Criminal law and procedure Sentencing State appeal Conspiracy to manufacture methylamphetamine Sentence of 4 years 8 months suspended for 2 years Whether manifestly inadequate |
Legislation: | Nil |
Case References: | Anderson v The Queen (1996) 18 WAR 244 Bolton v The State of Western Australia [2006] WASCA 120 Boyle (1987) 34 A Crim R 202 Chan (1989) 38 A Crim R 337 Chick (2000) 114 A Crim R 417 Dinsdale v The Queen (2000) 202 CLR 321 Everett v The Queen (1994) 181 CLR 295 Fardig v The Queen, unreported; CCA SCt of WA; Library No 8241; 15 May 1990 Hodder v The Queen (1995) 15 WAR 264 House v The King (1936) 55 CLR 499 Lowndes v The Queen (1999) 195 CLR 665 Postiglione v The Queen (1997) 189 CLR 295 R v Osenkowski (1982) 30 SASR 212 R v Richards [1999] WASCA 105 R v Western [2001] WASCA 194 Rogers v The Queen [1999] WASCA 239 Samuel v The State of Western Australia [2004] WASCA 154 Shrestha v The Queen, unreported; CCA SCt of WA; Library No 8330; 21 June 1990 The State of Western Australia v Bruce [2004] WASCA 226 The State of Western Australia v Houston [2005] WASCA 167 Wright (1997) 93 A Crim R 48 Dodd v The Queen [2002] WASCA 55 Hull v The State of Western Australia (2005) 156 A Crim R 414 Pallister (2002) 131 A Crim R 452 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : THE STATE OF WESTERN AUSTRALIA -v- SKAINES [2006] WASCA 160 CORAM : ROBERTS-SMITH JA
- MCLURE JA
BUSS JA
- Appellant
AND
CRAIG SKAINES
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MARTINO DCJ
File No : IND BUN 04 of 2005
Catchwords:
Appeal - Criminal law and procedure - Sentencing - State appeal - Conspiracy to manufacture methylamphetamine - Sentence of 4 years 8 months suspended for 2 years - Whether manifestly inadequate
(Page 2)
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms T D Sweeney SC
Respondent : Mr J B Prior
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Williams Ellison
Case(s) referred to in judgment(s):
Anderson v The Queen (1996) 18 WAR 244
Bolton v The State of Western Australia [2006] WASCA 120
Boyle (1987) 34 A Crim R 202
Chan (1989) 38 A Crim R 337
Chick (2000) 114 A Crim R 417
Dinsdale v The Queen (2000) 202 CLR 321
Everett v The Queen (1994) 181 CLR 295
Fardig v The Queen, unreported; CCA SCt of WA; Library No 8241; 15 May 1990
Hodder v The Queen (1995) 15 WAR 264
House v The King (1936) 55 CLR 499
Lowndes v The Queen (1999) 195 CLR 665
Postiglione v The Queen (1997) 189 CLR 295
R v Osenkowski (1982) 30 SASR 212
R v Richards [1999] WASCA 105
R v Western [2001] WASCA 194
(Page 3)
Rogers v The Queen [1999] WASCA 239
Samuel v The State of Western Australia [2004] WASCA 154
Shrestha v The Queen, unreported; CCA SCt of WA; Library No 8330; 21 June 1990
The State of Western Australia v Bruce [2004] WASCA 226
The State of Western Australia v Houston [2005] WASCA 167
Wright (1997) 93 A Crim R 48
Case(s) also cited:
Dodd v The Queen [2002] WASCA 55
Hull v The State of Western Australia (2005) 156 A Crim R 414
Pallister (2002) 131 A Crim R 452
(Page 4)
1 ROBERTS-SMITH JA: This is a State appeal against sentence. On 8 August 2005 the respondent was convicted on a plea of guilty in the District Court of one count of conspiracy to manufacture a prohibited drug, namely methylamphetamine, contrary to s 6(1)(b) and s 33(2) of the Misuse of Drugs Act 1981 (WA). The respondent, Craig Skaines and a co-offender, Michael James Melrose were both charged with the offence on 13 April 2004, following a search of property occupied by Melrose on that date. On 15 August 2005 the sentencing Judge, Martino DCJ, imposed on the respondent a sentence of 4 years and 8 months' imprisonment suspended for 2 years. Melrose proceeded to trial in relation to the conspiracy offence and was convicted on 7 February 2006. He awaits sentencing pending the outcome of this appeal.
2 The facts of the offence are that the respondent transported several insulated food and drink containers to an address in Kirup which was to be used as a place at which methylamphetamines were to be made using equipment and chemicals transported by the respondent and other things already there. Police officers from the Organised Crime Unit executed a search warrant under the provisions of the Misuse of Drugs Act at 20 Baxter Road, Kirup at around 11.50 am on Saturday, 3 April 2004. The property consists of a 10-metre by 20-metre shed on one acre of land and is occupied by the co-offender Melrose. Both the respondent and his co-offender were present at the premises at the time. Upon searching the premises police located items consistent with a clandestine drug laboratory used for the purpose of manufacturing methylamphetamine. Various items were set up on a bench top - five 5l demi-john flasks, caustic soda, sulphuric acid, sodium metal, toluene, ether and a quantity of glassware, filters and other apparatus. Both the respondent and Melrose were interviewed regarding these items and stated that they were to be used for the manufacture of methylamphetamine. A further search of the premises located a 56kg ammonia gas cylinder concealed in bushland on the property, the sentencing Judge accepting that this was an essential ingredient in the manufacturing process of methylamphetamine.
3 Detectives also located 178 grams of pseudoephedrine in an inside jacket pocket belonging to the respondent. This had previously been extracted from pseudoephedrine-based tablets and was of 70 per cent purity.
4 The respondent admitted he was to receive a payment of $1000 for organising the delivery of all of the equipment and ingredients and his co-offender was to receive a quantity of the methylamphetamine produced.
(Page 5)
5 The sole ground of appeal is that the learned sentencing Judge erred in law by ordering that the sentence of imprisonment imposed be suspended, it being said that the sentence imposed:
"(a) failed to adequately reflect the seriousness of the offence and the circumstances in which it was committed;
(b) failed to reflect the need for general deterrence;
(c) failed to adequately punish the Respondent;
(d) reflected an undue regard for matters personal to the Respondent; and
(e) was in the circumstances so inadequate as to manifest error."
6 Notwithstanding this particularisation, senior counsel for the appellant acknowledged that no particular error of law or fact is relied upon; the submission advanced is that the disposition itself manifests error and that the requirement for general deterrence should have been accorded overwhelming weight.
7 As to his personal circumstances and antecedents, the respondent was aged 45 at the time of the offence. He had a good work history and no serious prior convictions; the sentencing Judge found that his offending behaviour was out of character with his previous good character. Prior to conviction the respondent had been having difficulties associated with the break-up of his marriage some eight or nine years before. This had resulted in financial hardship and then a work-related accident around two years before his conviction had caused disruption to the respondent's good work history, leaving him with a significant disability in his right arm. As a result of his accident, the respondent had not worked to any great extent since, resulting in great financial pressure and aggravation of pre-existing clinical depression.
8 The respondent has two children, a 16-year-old son and a 14-year-old daughter. Both were living with him at the time of the offence, as were his partner and her three children. The respondent was very supportive of his family, including his son who was on a youth community based order, helping and supporting him to comply with his obligations under that order.
(Page 6)
9 The sentencing Judge noted that the respondent had an extremely difficult relationship with his ex-wife and that his children's relationship with her was also difficult. At that time, under the terms of the appropriate Family Court orders, his ex-wife had care of the children but that arrangement had not been working out and the children had been living with the respondent for lengthy periods and this, coupled with his obligation to make child support payments for the children, had contributed to the financial difficulties from which he suffered, particularly following his accident at work.
10 The respondent had made progress to obtain employment and had good prospects of doing so if he was not serving a term of imprisonment. The position for his two children would have been one of great difficulty if he were imprisoned because their relationship with their mother was strained. His partner at that time would have found it difficult to care for them along with her own three children.
11 At the outset, the sentencing Judge concluded that "the offence [was] so serious that a term of imprisonment is the appropriate and only appropriate disposition" but decided that "having regard to matters personal to [the respondent], [the respondent's] record and the needs or absence of effective record and the needs of [the respondent's] children" it was appropriate to suspend that term.
12 In response to the appellant's contention that suspension of the respondent's sentence manifests error, the respondent lists six significant mitigating factors as being applied by the sentencing Judge in the exercise of the sentencing discretion. They are:
"(i) The Respondent's early plea of guilty; (t/s 36)
(ii) The Respondent's recently diagnosed psychiatric illness; (t/s 34 and the report of Dr S J Proud dated 17 March 2004).
(iii) The Respondent's general previous good character; (t/s 34)
(iv) The effect a sentence of immediate imprisonment would have on the Respondent and his family; (t/s 34)
(v) The seven day period that the Respondent had already spent in custody and the effect that period in remand prison had on him; (t/s 33)
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- (vi) The role that the Respondent played in the criminal offence made him a lesser participant in the conspiracy and the fact that he was only to receive minimal benefit for such role. (t/s 33)"
13 The report of Dr S J Proud (a consultant psychiatrist), dated 17 March 2004, referred to in the respondent's submissions opines that:
"…should there be no improvement in Mr Skaines' physical condition and should he be unable to obtain meaningful employment, then under those conditions he will be left with some permanent depression and a permanent psychiatric disability. Much of Mr Skaines' depression is related to his situation with his ex-wife. In separating out the contribution of that element to his depression from the work related element (the injury and the ongoing pain and disability), it is my opinion that the current psychiatric impairment (solely ascribed to the work injury) is ten because he has 'mild but regular symptoms which tend to cause subjective distress' and that the permanent psychiatric impairment (solely ascribed to work factors) is five because he will be left with 'some mild symptoms and some difficulty in several areas of functioning'."
14 It appears that immediately prior to the proceedings in the District Court it appears that the respondent was referred to Dr Proud for psychiatric assessment and report, following the request of Mr John Mazza, counsel for the respondent at that time. Although not expressly referred to in the respondent's appeal submissions, the report - dated 4 August 2005 - is on file and was therefore before the learned sentencing Judge and appropriate for consideration. The report responds to specific questions posed by the respondent's trial counsel and provides the following answers:
"1.The history of my client's condition and treatment;
Mr Skaines has suffered from Major Depression, untreated since 1996 when his marriage broke down, but most particularly since 2003 when he injured his elbow and was unable to continue working.
2. Present condition and treatment;
Mr Skaines agreed to receive money to courier amphetamines because of his financial needs, which had
- been brought about by his inability to work from his work injury, his defacto's lack of work qualifications and his loss of assets and continuing commitments to child support through the breakdown in his marriage in 1996.
- 3. Did the condition cause or contribute to the offending?
Mr Skaines' decision to accept a relatively small sum of money considering the risk that it entails indicates, amongst other things, that his judgement and his overall ability to act wisely was compromised by his Major Depression and by his parlous financial situation and the ongoing acrimony with his ex-wife.
4. Expected future treatment;
Mr Skaines is depressed at present and suicidal. He has not received any treatment for depression. In my opinion, going into jail could deleteriously affect his depression and he should be referred to the Forensic Psychiatric Services if he goes to prison. However, some positives may come out of prison including detoxification from alcohol and some retraining to assist him into re-entering the workforce.
5. Prognosis.
In view of Mr Skaines' suicidal ideation, his imprisonment may worsen his suicidal ideation and put him at, of court, greater risk.
6. Do you believe it likely that any imprisonment will be a greater burden on my client by reason of the state of his health?
Treatment in prison for his depression (or out of prison for that matter), should involve counselling, financial counselling and antidepressant medication. In view of his suicidal ideation, he should be assessed by a consultant psychiatrist.
7. Is there a serious risk of imprisonment having a gravely adverse effect on my client's health?
- With treatment of his depression, finishing his prison term, retraining to enable him to enter work and detoxification from alcohol, his prognosis would be much improved. This is particularly so, as his children will be getting older, and once they reach the age of 18 years, the issue of child support does not arise and therefore Mr Skaines will be able to disentangle himself from his acrimonious relationship with his ex-wife."
15 A supplementary report to Mr Mazza from Dr Proud, dated 8 August 2005, clarifies his original report of 4 August 2005 stating that:
"Imprisonment will, in my opinion, significantly worsen Mr Skaine's suicidal ideation and his major depression. In fact, he may attempt suicide in prison, especially if complications arise with his ex wife and his children while he is in prison."
16 At the hearing of the appeal, the respondent sought leave to rely upon an affidavit sworn and filed on 20 March 2006. He there deposes that since 15 August 2005 there has been a change in circumstances which further contributes to the detrimental effect (particularly on his now 15-year-old daughter) which his immediate incarceration would have. There being no objection, leave was granted. In deciding an appeal against sentence, or exercising a power under the Act to vary a sentence, this Court may have regard to any relevant matter that has occurred between when the offender was convicted and when the appeal was heard (s 31(2) and s 41(4) Criminal Appeals Act 2004 (WA)).
17 In his affidavit, the respondent deposes that on and prior to 15 August 2005 his household consisted of his ex-partner, Ms JH, her three children from a previous relationship aged 16, 13 and 8, and the respondent's own children being a boy aged 16 years, his daughter and himself. The respondent's de facto relationship of approximately 6½ years with JH is said to have ended on 15 February 2006 when she left him. He deposes that "[i]t is very likely that our relationship has irretrievably broken down". Currently the respondent's household consists of his own son and his daughter and the 16 year old child of JH from a previous relationship, and himself. He outlines that the plan had been for his daughter to live with JH in the event that this appeal was successful but that is no longer possible given that she has left him. While the respondent's sister has agreed to look after his daughter in this event, his sister lives in New South Wales and this would harm his daughter's welfare. No other relatives live in Manjimup, or Western Australia for
(Page 10)
- that matter, and accordingly there is no other family for her to live with. His affidavit stresses that his daughter has refused to live with her mother and that if she was made to go to New South Wales her life would be "totally disrupted". The daughter was born at Bridgetown Hospital and has lived her whole life in Manjimup, attending a local college from Kindergarten to Year 10 and is now going through Year 10 at a local senior high school - she is also active in the Manjimup community, for example, regularly participating in productions of a repertory club ever since she was in primary school. A move to New South Wales would take her from "a good circle of friends who live in the vicinity of Manjimup" and also from her brother. The two of them love each other and the daughter will desperately miss her brother in the event that she moves to New South Wales.
18 The legal principles that apply to the disposition of this appeal are not in dispute. An appellate court is only entitled to intervene if a material error of fact or law is discerned in the sentencing Judge's reasons. Alternatively, error may be inferred if the result is unreasonable or unjust, either because it is manifestly excessive or manifestly inadequate: House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321 at 324 - 325. In this case, the State contends the learned sentencing Judge erred in law because the wrong type of sentence was imposed.
19 Section 76 of the Sentencing Act 1995 (WA) provides that a court which sentences an offender to a term of imprisonment of 5 years or less may order the whole of the term to be suspended for a period not more than 2 years. That provision was in the Act when it came into operation on 4 November 1996 and has not been relevantly amended, notwithstanding the changes to the sentencing regime effected by the Sentencing Legislation Amendment and Repeal Act 2003 (No 50 of 2003).
20 By s 22 and s 29(2) of, and Sch 1 to, that latter Act, with effect from 30 August 2003, a sentencing court imposing a sentence of imprisonment (other than a mandatory term) is required to impose a term that is two-thirds of the term it would have imposed prior to that date.
21 Thus, prior to 30 August 2003, a court could have suspended a term of up to 5 years' imprisonment. The maximum period of 2 years' suspension bore some proportionality to that, particularly to the then statutory non-parole period of one-third of the sentence (which in the case of a 5 year sentence was 1 year 8 months). Under the current regime, a suspension order may still be made in respect of a sentence of up to 5 years' imprisonment. That equates to one of 7 years 6 months prior to
(Page 11)
- 30 August 2003. The power to order a suspended sentence has in reality therefore been expanded to that extent, simply as the practical outcome of the operation of those provisions. Counsel for the appellant accepted this was so and took no issue about it on this appeal. The proportionality between the maximum sentence capable of being suspended, and the maximum period of suspension, has changed. There is less proportionality between a term equivalent to a pre-transitional sentence of 7 years 6 months, and 2 years' suspension. It is the case that the period of a 5 year term to be served before eligibility for release on parole is now 3 years - sentences of imprisonment of 4 years and over now have a statutory non-parole period of 2 years less than the fixed term.
22 To determine whether an error has been made it is necessary to view it in the perspective of the maximum sentence prescribed by the law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337 at 342. The principles applicable to a State appeal against sentence are comprehensively stated in Everett v The Queen (1994) 181 CLR 295 per Brennan, Deane, Dawson and Gaudron JJ at 299; Dinsdale (supra) at [57] - [62], and The State of Western Australia v Houston [2005] WASCA 167 at [52] - [54] per Steytler P. It is unnecessary to repeat them here save to acknowledge that such appeals are brought in rare and exceptional cases to establish some point of principle. Further, when an appeal court is required to resentence an offender on the application of the State, it ordinarily gives recognition to the element of double jeopardy involved by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.
23 Given the appellant's position that it is the imposition of a suspended sentence itself which demonstrates error, it is necessary for the appellant to show that it was not reasonably open to his Honour to impose a suspended sentence.
24 It is not sufficient that the members of an appellate court may have imposed a different sentence; what must be demonstrated is that (absent specific error) the sentence falls outside the range of a sound exercise of the sentencing discretion (Lowndes v The Queen (1999) 195 CLR 665, 671 - 672). A court of criminal appeal must fully recognise the discretionary character of the sentencing function and must accord sentencing Judges a wide measure of latitude (Postiglione v The Queen (1997) 189 CLR 295 per Kirby J at 336).
(Page 12)
25 The maximum sentence prescribed by law for the crime of which the respondent was convicted is 20 years' imprisonment, a $75,000 fine or both (s 33(2) and s 34(1)(b) Misuse of Drugs Act). The maximum penalty demonstrates the seriousness of offences of this kind. The maximum penalty for the substantive offence is a fine not exceeding $100,000 or imprisonment for a term of 25 years, or both (s 34(1)(a) of the Misuse of Drugs Act). Ordinarily, a conspiracy to manufacture a prohibited drug should not be regarded as more serious than the substantive offence (Fardig v The Queen, unreported; CCA SCt of WA; Library No 8241; 15 May 1990), although there may be exceptions (Shrestha v The Queen, unreported; CCA SCt of WA; Library No 8330; 21 June 1990).
26 The term of 4 years 8 months imposed here is equivalent to one of 7 years' imprisonment imposed prior to 30 August 2003. Mr Prior submitted on behalf of the respondent that the sentence was excessive (although there is no cross-appeal) and that his Honour had in effect balanced that out by suspending it. I cannot accept this submission. Dinsdale makes it clear that the same factors fall for consideration in respect of the question both whether imprisonment is appropriate and whether it can be suspended. Whilst different emphasis may be accorded to individual factors at those different points, a degree of relativity (or consistency) between the fixed term and the order for suspension (including the period of it) is to be expected.
27 Nonetheless, a suspended sentence may be imposed even for a very serious offence. That is clear from the fact that such an option is statutorily available for terms of imprisonment of up to 5 years (post-transitional, that is of up to 7 years 6 months' imprisonment prior to 30 August 2003, as I have explained).
28 The question is, was the imposition of a suspended sentence of 4 years 8 months' imprisonment for a period of 2 years outside the range of a sound exercise of his Honour's sentencing discretion.
29 It is necessary to have regard not just to the order for suspension, but at the length of the fixed term which was suspended and the period of the suspension.
30 The fixed term is severe by comparison with sentences ordinarily imposed for a single offence of manufacturing methylamphetamine or possessing that drug with intent to sell or supply, particularly following a plea of guilty (a number of cases were discussed in Samuel v The State of Western Australia [2004] WASCA 154 at [24] - [28]. The period of
(Page 13)
- 2 years' suspension is the maximum possible. It is a very grave prospect for the respondent to be confronting the possibility of having the sentence of 4 years 8 months (or a significant part of it) activated at any time over the 2 years.
31 His Honour's finding that the respondent's plea of guilty soon after he was charged demonstrated a willingness to facilitate the course of justice, an acceptance of responsibility for his behaviour, and remorse, is not challenged. The respondent was entitled to have maximum mitigatory effect allowed for that.
32 In my view there was not a great deal of mitigation to be seen in the respondent's psychiatric illness. The respondent had not sought treatment for that. Mr Prior submitted that was because it was only recently diagnosed. However, it had been diagnosed three weeks prior to the commission of the offence. Psychiatric illness may be a mitigatory factor where it caused or contributed to the offending (R v Richards [1999] WASCA 105), but that was not the case here. The highest it was put by Dr Proud was that the respondent's decision to accept "a relatively small sum of money considering the risk" indicates, amongst other things, that "his judgment and his overall ability to act wisely" was compromised by his major depression in combination with his parlous financial situation and the ongoing acrimony with his ex-wife. In that context, the respondent's untreated depression was not in my view so relevantly causative as to reduce his moral culpability (R v Western [2001] WASCA 194). Nor does it make the respondent an inappropriate vehicle for general deterrence (cf Wright (1997) 93 A Crim R 48).
33 The short period the respondent had been in custody apparently had a salutary effect on him. He was described as "sobbing" all the time. His son wrote that he had "sat [them] down and told [them] how sad and ashamed he feels about his mistake". His Honour accepted the respondent had demonstrated genuine remorse.
34 The respondent was not the prime mover in the conspiracy. He received a telephone call in which he was offered $1000 for his involvement. That is not to minimise the seriousness of what he did. His offence was serious, but that is adequately reflected in the term of imprisonment and the period of suspension.
35 The respondent had very good antecedents. He had no relevant previous convictions. Good antecedents will carry little weight where there is evidence of drug-dealing on a significant scale and where the
(Page 14)
- main sentencing consideration is general deterrence: Chick (2000) 114 A Crim R 417. But the offence here was not in the same category of seriousness as that case.
36 It is submitted on behalf of the appellant that the effect of imprisonment upon the respondent's children was a relevant consideration. However, it is submitted that it is to be expected in almost every case, that imprisonment will cause hardship to innocent persons associated with an offender, and only in an exceptional case should the hardship, which a proper sentencing disposition will occasion to innocent third parties, be allowed to substantially mitigate the court's sentencing disposition. It is then submitted that a court should not lose sight of the fact that the hardship occasioned by the sentencing process was caused by the respondent himself.
37 In the present case it is submitted on behalf of the appellant that the impact of imprisonment upon the respondent's children, whilst regrettable, is overwhelmed by the seriousness of the offending behaviour. The submission is that the impact of imprisonment upon the respondent's children is something he has in common with many other offenders and there is nothing exceptional about it to justify the special opportunity that the process of suspension offers.
38 The appellant relies upon The State of Western Australia v Bruce [2004] WASCA 226 at [34].
39 In Bruce, Murray ACJ said (at [34]:
"Specifically as to the hardship which sentencing the offender may cause to innocent third parties and the impact which that may be permitted to have upon the proper exercise of sentencing discretion, it is I think, only necessary to refer to the decision of this Court in Hodder v R (1995) 15 WAR 264. Although I dissented as to the outcome in that case, there was no difference between the Judges as to the statement of the sentencing principle involved. After referring to the authorities in this and other Australian jurisdictions I endeavoured to summarise my view of the proper approach to be taken in such cases and the reasons for it. I said at 287:
'For my part, I consider that it is important to bear firmly in mind that a sentencing court has a public duty to perform and it must not shirk its task which is primarily to arrive at a sentence proportionate to the gravity of the offence, having
- regard to the circumstances of its commission, and having regard to the personal circumstances of the offender and any available mitigation. It will by that means inject into the sentencing process an appropriate degree of certainty and consistency, rather than severity, which is best calculated to achieve the protection of the community by deterring the particular offender and others in the community and, particularly in the case of serious offences, by marking with appropriate retribution the court's abhorrence of the criminal conduct involved. The court is to avoid being both weakly merciful and weakly severe. Where serious offences are committed, it is inevitable that more severe punishment will be involved and that will be expected in almost every case to cause hardship to innocent persons associated with the offender and the commission of the offence, as victims or otherwise.'
- It is right then that only in an exceptional case, quite out of the ordinary, should the hardship which a proper sentencing disposition will occasion to innocent third parties be allowed to substantially mitigate the court's sentencing disposition. The court should not lose sight of the fact that the hardship occasioned by the sentencing process is, in truth, caused by the offender who commits the offences and visits upon himself or herself the punishment of the court. Even so, the court should, as it was put by Wells J in Wirth, be prepared to draw back in mercy where it would, in effect, be inhuman to refuse to do so."
- (I note that Hodder v The Queen (1995) 15 WAR 264 is also reported as H (1995) 81 A Crim R 88).
40 Steytler and McKechnie JJ delivered a separate joint judgment. In relation to this issue, they acknowledged (at [52]) that there the offender was a young man of prior good character who came from a good family, and it was also true that he faced financial difficulties affecting the whole of his family and that his incarceration would adversely affect his family in a number of ways. However, their Honours took the view that the offender's personal antecedents were overwhelmed, in a case such as that, by the seriousness of his offending and the impact of his imprisonment on his family, whilst regrettable, was something he had in common with many other offenders and there was nothing exceptional about it (referring to Boyle (1987) 34 A Crim R 202 and Rogers v The Queen [1999] WASCA 239 at [35]).
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41 Bruce was also a State appeal. The respondent and his co-offender had been under police investigation. The police intercepted a number of telephone calls on the respondent's mobile phone. Subsequently, on a police search, he was found in possession of about 28 grams of methylamphetamine and a firearm. He had originally been charged with a number of substantive offences in relation to the sale and possession of methylamphetamine. He pleaded not guilty to those offences but was convicted after trial. He was sentenced to an aggregate of 3 years 3 months' imprisonment. He subsequently pleaded guilty to a charge of conspiracy to possess methylamphetamine with intent to sell or supply it. One of the substantive offences of which he had been convicted fell within the period of the conspiracy. He pleaded guilty to the conspiracy and was sentenced to 2 years imprisonment, suspended for a period of 2 years. That occurred prior to his trial on the substantive offences. Murray J would have allowed the State appeal and substituted a sentence of 4 years' immediate imprisonment. Steytler and McKechnie JJ held that although the sentence imposed had been manifestly inadequate, in the circumstances of the case it was not appropriate that the appeal be allowed. They dismissed it.
42 The facts of that case were certainly more serious than the present. The offending behaviour was conducted over a period of several months and over that time the respondent had on many occasions discussed with his co-accused the purchase of drugs from different suppliers. The intercepted conversations also included discussions as to the on-selling of the drug to an existing customer base. It is, with respect, not surprising none of the members of the Court thought there was nothing particularly unusual about the circumstances in relation to the respondent's family. It really appeared to be no more than that from about the age of 14 or 15 he had been employed in his father's trucking business, although that business had later been declared bankrupt. As a consequence, the respondent took on more responsibility, including assisting to provide for the family. The financial commitments of the family, including a farm, were placed in his name. He was also in a de facto relationship. The circumstances of the respondent's family in the present case are of an entirely different order.
43 The general principle which must be accepted, is that a sentencing Court should have no regard to the impact which a sentence of imprisonment will have upon members of the prisoner's family, although this is not an absolute principle and may be departed from "in extreme cases".
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44 In Boyle (supra), in which the Court of Criminal Appeal set aside a sentence of 2 years' imprisonment imposed for an offence of possessing a quantity of cannabis with intent to sell or supply, the applicant was a single parent, with a number of teenage daughters, one of whom was mentally retarded. Her financial circumstances were such that at one time she had resorted to prostitution and her decision to obtain and distribute cannabis were seen as a way out of her financial difficulties. The Court allowed the appeal and substituted a probation order for it. It was held that the case was an extreme one and therefore the impact which imprisonment would have upon the applicant's children was a matter going to the expediency of not sending her to gaol.
45 Burt CJ explained the principle this way (at 204 - 205):
"I recognise the importance of deterrence both general and particular in sentencing and in sentencing for drug offences in particular. But as they say, circumstances can alter cases and the question as I see it is whether the impact which the sentence of imprisonment will have upon the children is a matter which is relevant to the decision to be made, that is to say, to the decision to imprison or to place the applicant upon probation.
As to that I think it must be said that generally speaking the answer to that question should be in the negative. The general principle is said to be that a sentencing court should have no regard to the impact which a sentence of imprisonment will have upon the members of the prisoner's family. That principle has been emphasised in a number of reported cases, the reason of it being as expressed by Lord Widgery CJ in Ingham (1974), as noted in D A Thomas, Current Sentencing Practice (1982), par C4.2(a) as follows:
'So it is not altogether an easy case, but of course this always happens, time and time again, that imprisonment of the father inevitably causes hardship to the rest of the family. If we were to listen to this kind of argument regularly and normally in the cases that come before us, we should be considering not the necessary punishment for the offender but the extent to which his wife and family might be prejudiced by it. The crux of the matter is that part of the price to pay when committing a crime is that imprisonment does involve hardship on the wife and family, and it cannot
- be one of the factors which can affect what would otherwise be the right sentence.'
We do not think that this is a case which is so unusual in its individual factors as to justify us departing from the general principle. One cannot modify a sentence on the husband merely because the wife and family, or prospective family, will suffer.'
- But the English decisions make it clear that that is not an absolute rule and it will be departed from in exceptional circumstances, particularly, it seems, when imprisonment will result in children being left to fend for themselves best they can without parental supervision or support …"
46 In Anderson v The Queen (1996) 18 WAR 244, Murray J repeated (at 249) what he had said in Bruce. Steytler J (as his Honour then was) accepted the general principle and quoted the passage set out above from the judgment of Burt CJ in Boyle. In Anderson the force of the consideration that the offender's son had a very grave illness and was to undergo a very serious operation was not only the effect of the offender's imprisonment upon his son, but also its effect upon the offender. Both would have been subjected to an unusual measure of hardship as a result of the offender's incarceration.
47 As I read his remarks in the present case, the sentencing Judge took the effect of imprisonment to bear both upon the needs of the respondent's children and the additional hardship imprisonment would have for him as a consequence. The respondent's ex-wife is unable or unwilling to look after the children. His former de facto is no longer prepared to do so as a result of the break-up of their relationship. The children would be split up and the daughter would have to move interstate, away from her friends, her school and the other associations of her whole life. It cannot be said these considerations could not properly have been given substantial weight, in combination with the prospects of the respondent's rehabilitation, in relation to the appropriateness of a suspended sentence in this case.
48 It is clear from Dinsdale that a prospect of rehabilitation is not invariably a necessary precondition for the imposition of a suspended sentence. Nonetheless, it remains a relevant factor and where a good prospect of rehabilitation is shown it may be a significant one. The ultimate purpose of the criminal law is protection of the community.
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- Where the imposition of a suspended sentence upon an offender has the best prospect of achieving that purpose then, unless (on that second consideration of all relevant factors which Dinsdale requires) the objective circumstances of the offence are so serious and the need for general deterrence so great as to outweigh all other considerations, a suspended sentence could not be said to be inevitably precluded. As I observed in Samuel (supra), at [43] (Malcolm CJ and Murray J concurring):
"Although considerations of general deterrence will ordinarily carry great weight where drug dealing offences are concerned, that principle does not inevitably have to be given primacy in every case. It is sometimes in the greater public interest to give more weight to the principles of condemnation, personal deterrence and rehabilitation."
50 I am not persuaded the circumstances were such as to preclude his Honour from concluding that a suspended sentence of 4 years 8 months' imprisonment, suspended for 2 years, was appropriate. I would accordingly dismiss the appeal.
51 MCLURE JA: I have had the advantage of reading the reasons for judgment of Roberts-Smith JA. I agree, albeit with some hesitation, that the appeal should be dismissed. The background is detailed in the reasons of Roberts-Smith JA and not repeated here. A suspended sentence for the offence committed by the appellant could only be appropriate if it fell within that category of case calling for the exercise of mercy because the sentencing Judge's sympathies are reasonably excited by the circumstances of the case: R v Osenkowski (1982) 30 SASR 212 at 212 per King CJ. If regard is solely had to the nature and circumstances of the offence and the appellant's personal antecedents, there could be no doubt that a term of immediate imprisonment was the only appropriate penalty. That is so notwithstanding that the appellant's role was comparatively minor, he had no relevant prior convictions, had pleaded guilty at an early opportunity and was genuinely remorseful. However, in my assessment those matters are an essential precondition to any exercise of mercy in this case. They are essential but of themselves insufficient. But there are
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- other factors in this case. At the time of the offence, the appellant was suffering from a diagnosed psychiatric illness (clinical depression) which according to the expert psychiatric evidence affected his judgment. The sentencing Judge accepted that the appellant's conduct was entirely out of character. The expert evidence was also to the effect that, by reason of his psychiatric condition, imprisonment will result in greater than usual hardship to the appellant. Finally, the evidence also establishes that he is now the sole carer of two dependent children at least one of whom requires particular attention. In all of these circumstances, I am unable to say the sentencing Judge erred in his assessment that this was a case calling for the exercise of mercy. That places this case in an exceptional category which provides no guidance as to the sentences customarily imposed for offences of this type and can differentiate him from any co-offender (in this regard see Bolton v The State of Western Australia [2006] WASCA 120).
52 BUSS JA: I agree with McLure JA.
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