TLM v The State of Western Australia
[2009] WASCA 106
•25 JUNE 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TLM -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 106
CORAM: WHEELER JA
PULLIN JA
MILLER JA
HEARD: 9 JUNE 2009
DELIVERED : 25 JUNE 2009
FILE NO/S: CACR 168 of 2008
BETWEEN: TLM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :YEATS DCJ
File No :BUN 71 of 2008
Catchwords:
Criminal law - Sentencing - One count of selling 13.8 g of methylamphetamine and one count of attempting to possess methylamphetamine - Custodial sentence warranted - Discount for assisting authorities to charge and convict another offender - Principles governing discount
Legislation:
Criminal Appeals Act 2004 (WA), s 40(1)(e)
Sentencing Act 1995 (WA), s 6(4), s 8(5)
Result:
Leave to appeal on ground 1 refused
Leave to appeal on ground 2 granted
Ground 2 upheld
Appellant resentenced
Category: D
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Ms L D O'Connor
Solicitors:
Appellant: Max Owens & Co
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
A Child v The State of Western Australia [2007] WASCA 285
Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49
Coleski v The State of Western Australia [2008] WASCA 260
Dinsdale v The Queen (2000) 202 CLR 321
Duong v Western Australia (2006) 32 WAR 246
Hayes (1981) 3 A Crim R 286
Swains v The State of Western Australia [2007] WASCA 251
The State of Western Australia v Wynne [2008] WASCA 195
Vagh v The State of Western Australia [2007] WASCA 17
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
WHEELER JA: I agree with Pullin JA.
PULLIN JA: This is an application for leave to appeal against sentence. The appellant pleaded guilty in the District Court to one count of selling methylamphetamine and one count of attempting to possess methylamphetamine. She was sentenced to 3 years' imprisonment in relation to the selling and on the attempt charge, she was sentenced to 2 years' imprisonment, both sentences to be served concurrently, making a total sentence of 3 years' imprisonment. She was made eligible for parole. The sentencing judge was advised of the following facts by the prosecutor, which are not in dispute.
On 23 January 2008, the appellant received a phone call from a friend who asked her to sell methylamphetamine to another. The friend arranged for her to be picked up by a third person, a Mr X. Mr X drove the appellant to a hotel in a country town to meet a person who, unknown to either of them, was an undercover police officer. The appellant agreed to supply the undercover police officer with an ounce of methylamphetamine. The appellant and the undercover police officer then returned to Mr X's vehicle and they drove around until the appellant was able to locate a supplier at a house in a country town. She went into the supplier's house and returned and handed the police officer a small plastic clip seal bag containing 13.8 g, or just less than 1/2 an ounce of 30% pure methylamphetamine.
In relation to the attempted possession with intent to sell or supply, the appellant discussed with the undercover police officer the further purchase and supply of the balance of 14 g of methylamphetamine. The undercover police officer agreed to purchase the further 14 g and he then handed the appellant $9,000 in cash. The appellant then instructed the undercover police officer to leave the area with Mr X and to return when contacted by her. Mr X drove the undercover police officer to a beach car park where they waited for instructions and during that time Mr X and the appellant communicated by way of text message regarding the time that was elapsing for the supply of the drugs. The whole transaction was monitored by the Police Special Projects. The appellant and Mr X were arrested. The appellant was conveyed to the police station and she participated in a video record of interview and made full admissions in relation to the offences.
The appellant had a record for traffic offences, common assault and assault occasioning bodily harm. For some of the driving offences and a breach of bail offence, she had been placed on a community based order
on 21 January 2008 two days before her arrest on the drug charges. She had no previous conviction for drug offences.
A pre‑sentence report was provided to the sentencing judge. This revealed that the appellant was 30 years old at the time the report was written; she began using cannabis at the age of 16 years; and began using amphetamines when she was 21 years old. Her amphetamine use increased to daily intravenous use from the age of 27. When the appellant was placed on the CBO on 21 January 2008, the order was breached as a result of the reoffending and she was then placed on another CBO with supervision and programme requirements. The pre‑sentence report indicates that her attendance at supervision had been inconsistent as was her attendance for substance use counselling. She failed urinalysis tests, revealing that she was positive to amphetamine and cannabis.
The solicitor acting for the appellant wrote to the associate to the trial judge and referred to a witness statement the appellant had signed which revealed the names of persons involved in drug dealing. The trial judge acknowledged receipt of that letter and said before making her final sentencing remarks that she had 'taken note' of the matters mentioned in the statement. The signing of a witness statement is not only of assistance to the authorities at the time that it is signed, but it necessarily implies that the person is willing to come to court and give evidence in terms of the witness statement.
The sentencing judge was also provided with a letter from the appellant which expressed 'sorrow, remorse and regret' for her actions and referred to an event which occurred at an unspecified time earlier in her life. In the letter the appellant said that she became involved in a relationship after a break‑up of another relationship and that:
Things seemed good at first until they took a drastic turn for the worst. This ultimately led to my being severely violated and left for dead with my children in the middle of nowhere in central Australia. The culprit was charged and is still serving a custodial sentence. The effects of this on my state of mind afterwards were drastic. I could never find peace, always existing in a scared, vulnerable and agitated state of mind. The joys I had previously in life [were] made inaccessible to me. It was this state of mind that made me find solace in drugs in the first place. Once on that path though I soon became a slave to my own habit in a vain effort to dull the pain I felt inside.
The sentencing judge made the following remarks before sentencing:
You were involved in a transaction where someone telephoned you and you were willing to deal with a stranger, to obtain one ounce of methylamphetamine to provide to that person, and you were willing to do that on the day because you yourself needed a fix. You needed methylamphetamine. You wanted some for yourself.
The transaction, although I can say it was one transaction, it was interrupted. You obtained 13.8 grams at 30 per cent purity, and that's the part that you actually sold to the undercover agent, and then you attempted to obtain the other 14 grams. You wanted to provide a whole ounce, but you were unsuccessful in that regard.
You come before the court in a really tragic situation, in the sense that you are an attractive woman, you're 30 years old, you have four children, as I understand it, and they are only little. They were, when the report was written, nine months, two years, three years and four years, to different fathers. You had a terrible incident out on the Nullarbor which must have been horrifying for you.
All of these things that have happened to you seem to have not detracted from your continued use of the drugs to which you're addicted, and I can see you sitting there now, that you're addicted heavily to amphetamine, and it's a tragedy. Those addicted to methylamphetamine suffer not only in their personal lives, but those addicted commit crimes. You have committed a crime, two serious crimes, in order to feed your addiction, and those affected by methylamphetamine, and committing all sorts of offences, driving offences and other kinds of offences, that leave the community, as the Court of Appeal has said:
This is a scourge on the community that simply has to be stopped if at all possible.
When dealing with a person who is willing to trade in this large quantity of methylamphetamine, even though you're a user‑dealer, which gives you some benefit, even though you are a person who has children as your responsibilities, and I know from your abusive relationships that much of this came upon you, yet you have to be punished for what you have done.
There is a bright light in your life, and that was your enormous achievements in swimming. To have been able to achieve what you did in sport is not an easy thing. It shows that in yourself, and you're one of five children, as I understand, in your sport you demonstrate that there's a lot to you that hasn't been demonstrated for a while, that is there, that gives you a potential for life.
Because of the large amount of methylamphetamine, because of your willingness to be involved in this very serious commercial dealing, I am of the view that imprisonment has to be imposed. Your counsel has raised a matter with me, which I have considered, but I won't say any more about that in open court. Your counsel also indicated that I might be able to see my way clear to imposing a sentence that is suspended.
The principles regarding suspended imprisonment are well set out in the High Court case of Dinsdale. I have carefully reviewed all of the background and factors involved in your offending, and I have concluded that your crimes are simply too serious for me to suspend them at this time. I am also mindful that you are not yet reformed from your own use of methylamphetamine. That is your greatest tragedy. I am also aware that you will do your time very hard because of your children. All of these things are things the court is aware of, but because of the very serious nature of your offending, these sentences must be imposed.
If you would stand then, Ms M, for selling 13.8 grams at 30 per cent purity, I would have started with a sentence of six years' imprisonment, but because of pleading guilty on the fast‑track, because of the need to reduce by one‑third, I impose a sentence of three years' imprisonment.
It has been observed that the sentencing judge did not say whether or not the appellant's assistance to the authorities had resulted in any reduction in the sentence.
The appellant's grounds of appeal read:
1.The learned sentencing judge erred in law and fact and [sic] in not imposing a sentence of suspended goal with conditions rather than immediate goal considering:
(a)The Appellant's domestic circumstances including having 4 young children.
(b)The Appellant's lack of prior record for Misuse of Drugs Act matters.
(c)The Appellant's past difficult circumstances.
(d)The Appellant's personal achievements.
(e)The Appellant's prospects and hopes for reform.
(f)The Appellant's co‑operation with Police and assistance to the Authorities.
(g)The Appellant's early pleas.
(2)Further and in the event the sentence imposed was manifestly excessive considering all the above factors, in particular (f) above and the learned sentencing judge's non‑compliance with Section 8(5) of the Sentencing Act.
The first ground of appeal alleges that the sentencing judge erred by not imposing a sentence of suspended imprisonment rather than a sentence of immediate imprisonment. The factors which are listed in the notice of appeal were all taken into account by the sentencing judge. Under s 6(4) of the Sentencing Act 1995 (WA), a court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. See Duong v Western Australia (2006) 32 WAR 246, particularly [10], [11] and [40] for a discussion about the provisions of the Sentencing Act and the effect of Dinsdale v The Queen (2000) 202 CLR 321. In Coleski v The State of Western Australia [2008] WASCA 260, which was an appeal against sentence of immediate imprisonment for the offence of possession of 9.87 g of methylamphetamine of 24% purity, Steytler P said (McLure & Miller JA agreeing):
[E]ach case will necessarily turn upon its individual circumstances. However, the task, on an appeal of this nature, is to establish that the sentencing judge made an error. Because immediate imprisonment is usually imposed for trafficking in serious drugs, it will generally be difficult to establish error on account of the fact that the sentence of imprisonment that was imposed was not suspended. Something exceptional will ordinarily have to be demonstrated, bearing in mind that matters personal to the offender will have less weight than they might have in other cases [24].
In that case the President referred to a number of authorities concerning the fact that the court has repeatedly said that, save in exceptional circumstances, terms of immediate imprisonment are imposed for drug trafficking [14]. The President referred to Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 where Miller AJA (as his Honour then was), concluded that, in cases involving smaller quantities of methylamphetamine (between 3 g and 65 g) sentences ordinarily range, after allowing for the operation of the transitional provisions, between 2 and 5 years' immediate imprisonment. In Swains v The State of Western Australia [2007] WASCA 251, a review of the cases, including Bosworth, demonstrated that a sentence of 18 months' imprisonment for possession of 8.071 g of methylamphetamine, with a purity of 25%, with intent to sell or supply, is well within the appropriate sentencing range for offences involving that quantity of drugs. Having said that, it is necessary to bear in mind that the quantity of drugs is only one relevant sentencing factor (see Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 [54]) albeit an important factor. It is also necessary to bear in mind that while a term of immediate imprisonment is generally the only appropriate sentencing option for those who deal in serious drugs, this does not relieve the sentencing judge of the obligation to consider whether, in the particular circumstances, it is appropriate to use a less severe sentencing option. See Coleski [16].
In this case the sentencing judge was well aware of these requirements. Her Honour expressly considered whether a sentence of suspended imprisonment might be appropriate and concluded that the appellant's crimes were too serious for a sentence of imprisonment to be suspended. In reaching that conclusion, her Honour plainly appreciated that, as a consequence of the significant weight given to deterrence in the case of drug offences, mitigating circumstances personal to the offender have correspondingly less weight than they might have in other cases.
Apart from one aspect there is nothing particularly unusual about the mitigating factors. The sentencing judge took into account all of the factors referred to in the first ground of appeal. The fact that the appellant had four young children was a factor which her Honour took into account, along with the lack of prior record, the appellant's personal achievements and the appellant's early pleas of guilty under the fast‑track system.
What emerged at the hearing of this application as the most significant aspect of the appellant's appeal was the point, or rather the points raised in ground 2, namely that the sentencing judge did not give enough weight to the appellant's cooperation with the authorities, and did not comply with s 8(5) of the Sentencing Act. To allege that sufficient weight was not given to a relevant factor does not give rise to appellable error unless it amounts to a failure to exercise the sentencing discretion (Vagh v The State of Western Australia [2007] WASCA 17 [76]). However, Parliament has provided that assistance to law enforcement authorities is a special mitigating factor requiring separate treatment by a sentencing judge. This is because of s 8(5) of the Sentencing Act 1995 which provides that:
If because an offender undertakes to assist law enforcement authorities a court reduces the sentence it would otherwise have imposed on the offender, the court must state that fact and the extent of the reduction in open court.
Thus, in circumstances where, as in this case, the court is presented with information indicating that there has been such an undertaking to provide assistance then the task of the court is to decide whether or not this warrants a reduction in the sentence. As the subsection itself implies, not all undertakings to assist will result in a reduction in a sentence. In Hayes (1981) 3 A Crim R 286, 287 the Court of Criminal Appeal in effect indicated that the value of assistance and the motivation for agreeing to assist were factors about which the sentencing judge must make his or her own judgment. To be a significant factor, information must be of substantial assistance in the detection of crime or in the conviction of offenders. In A Child v The State of Western Australia [2007] WASCA 285, Wheeler and McLure JJA restated the principles relevant to a discount for cooperation with authorities. Those principles help identify when a discount is warranted and if so the extent of the discount. The principles indicate that the following factors are relevant in making the assessment:
(a)whether the assistance demonstrates genuine remorse or contrition;
(b)whether the assistance is potentially useful to the authorities. (The usefulness may be tested by reference to whether it assists or is likely to assist in bringing about the apprehension or conviction of another offender and by considering the seriousness of the offence committed by the other offender); and
(c)the extent of the likely danger or hardship which the person assisting authorities may be placed in or may undergo as a result of the cooperation.
In The State of Western Australia v Wynne [2008] WASCA 195 Miller JA, with whom Steytler P and Murray J agreed, referred at [90] ‑ [94] to a number of authorities dealing with this topic. They make it plain that discounts given to offenders should not be laid down as a standard percentage because it will depend upon the circumstances of each case. However, his Honour referred to cases in which there had been discounts of up to two‑thirds on sentences of imprisonment.
The State conceded that the assistance given in this case, namely the provision of a signed witness statement, which helped to bring about the conviction of a supplier of drugs, amounted to substantial assistance. The appellant provided all the information that she was able to provide to assist the authorities. In the small community where the appellant lived, there were risks in the appellant doing so. The sentencing judge did not state that she was allowing any reduction in sentence and made no inquiries about the extent to which the undertaking to assist was a factor warranting a reduction in sentence. Additional evidence was proffered to this court which revealed that the other offender has now been convicted on her own plea. An order should be made under s 40(1)(e) of the Criminal Appeals Act 2004. This evidence consisted of an indictment, summary of pleas and schedule of particulars which has been marked exhibit 1.
In those circumstances, and particularly in view of the concession made by the State, the learned sentencing judge erred, by failing to reduce the sentence at all. Alternatively, if her Honour did allow some reduction then the discount must have been inadequate because the sentences were sentences which would have been justified in the absence of any assistance. The sentencing judge also erred by failing to disclose the extent of that reduction as required by s 8(5) of the Sentencing Act 1995. Either way, there was an error of law and therefore leave to appeal against ground 2 should be granted and the ground upheld.
Resentencing
It is therefore necessary to resentence the appellant. The circumstances of the offences are set out above, and need not be repeated. Similarly, the personal circumstances of the appellant are also apparent from the earlier part of these reasons. I agree with the sentencing judge that these are offences which were too serious to allow for the suspension of a term of imprisonment and that a sentence of immediate imprisonment was required. Given the case of Bosworth referred to above, a sentence of 3 years' immediate imprisonment on count 1 and a sentence of 2 years' immediate imprisonment on count 2 would have been appropriate, taking into account the early plea of guilty under the fast‑track system and all the other relevant sentencing factors, but putting aside any discount for assisting the authorities.
When it comes to the discount for assisting the authorities, it is important to observe that it is not often in drug cases that such assistance is given. However, offenders should understand that if they do assist the authorities to a substantial degree, then they will be entitled to a reduction in the length of the sentence which would otherwise have been imposed. If the authorities do not ask for assistance, it would be wise for legal practitioners acting for offenders to point out that assistance of a substantial kind will attract a discount.
The appellant's cooperation does indicate remorse. The assistance was complete in the sense that it was all the assistance that the appellant could give. However, the other offender, while a supplier of drugs, has not been shown to be at the top of the supply chain. Finally, there is no doubt that in a relatively small community, the giving of assistance carried with it a risk.
The assistance provided warrants a reduction of 14 months in relation to the sentence on count 1, which is a reduction of about 40%, and the sentence on count 2 should be reduced by 10 months. This is a reduction, not in terms of s 8(5) of the Sentencing Act 1995 which requires the court to state the fact and extent of reduction in open court because of the undertaking. The reduction is warranted because the evidence before the court reveals that the implied undertaking to assist has had its effect in that the other person pleaded guilty. There appears to be no further future cooperation which will be required.
Thus, in relation to count 1, the sentence of 3 years should be reduced to 22 months' imprisonment. On count 2, the appellant should be sentenced to 14 months' imprisonment. The sentences should commence on 10 November 2008 to take into account time already spent in custody and they should be served concurrently. The appellant should be eligible for parole which means that she will be eligible for release on parole on 10 October 2009, meaning that she must serve a minimum period of 10 months in custody.
The formal orders of the court will therefore be:
(1)Leave to appeal on ground 1 refused.
(2)Leave to appeal on ground 2 granted.
(3)Exhibit 1 admitted as further evidence under s 40(1)(e) of the Criminal Appeals Act 2004.
(4)Ground 2 upheld.
(5)The sentences imposed in relation to counts 1 and 2 by the sentencing judge are set aside and in lieu there should be sentences as follows:
(a)count 1, a sentence of 22 months' imprisonment;
(b)on count 2, a sentence of 14 months' imprisonment;
(c)both sentences to be served concurrently;
(d)the appellant is to be eligible for parole in relation to both sentences.
MILLER JA: I agree with Pullin JA.
6
9
2