Truscott v The State of Western Australia

[2016] WASCA 58

TRUSCOTT -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 58

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASCA 58
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:218/2015	Heard:	17 MARCH 2016
Coram:	BUSS JA MAZZA JA	Delivered:	8/04/16
No of pages:	8	Judgment Part:	1 of 1
Result:	Leave to appeal refused Appeal dismissed
Category:	B
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Parties:	COREY LEE TRUSCOTT THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Application for leave to appeal against sentence Possession of a prohibited drug with intent to sell or supply it to another 16 months' immediate imprisonment Manifest excess
Legislation:	Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a) Sentencing Act 1995 (WA), div 1 of pt 2, s 39
Case References:	Apkarian v The State of Western Australia [2015] WASCA 67 Cartwright v The State of Western Australia [2010] WASCA 4 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246 Fenton v The State of Western Australia [2015] WASCA 255 Fogg v The State of Western Australia [2011] WASCA 11 Ness v The State of Western Australia [No 2] [2013] WASCA 56 Skipworth v The State of Western Australia [2008] WASCA 64 The State of Western Australia v Johnson [2010] WASCA 187 The State of Western Australia v Thompson [2014] WASCA 108 Tran v The State of Western Australia [2013] WASCA 77 Wilson v The State of Western Australia [2010] WASCA 82

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TRUSCOTT -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 58 CORAM : BUSS JA

MAZZA JA

HEARD : 17 MARCH 2016 DELIVERED : 8 APRIL 2016 FILE NO/S : CACR 218 of 2015 BETWEEN : COREY LEE TRUSCOTT

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : DAVIS DCJ

File No : IND 812 of 2015

Catchwords:

Criminal law - Application for leave to appeal against sentence - Possession of a prohibited drug with intent to sell or supply it to another - 16 months' immediate imprisonment - Manifest excess

Legislation:

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 34(1)(a)

Sentencing Act 1995 (WA), div 1 of pt 2, s 39

Result:

Leave to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : No appearance

Solicitors:

Appellant : In person
Respondent : Director of Public Prosecutions (WA)

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

Apkarian v The State of Western Australia [2015] WASCA 67
Cartwright v The State of Western Australia [2010] WASCA 4
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246
Fenton v The State of Western Australia [2015] WASCA 255
Fogg v The State of Western Australia [2011] WASCA 11
Ness v The State of Western Australia [No 2] [2013] WASCA 56
Skipworth v The State of Western Australia [2008] WASCA 64
The State of Western Australia v Johnson [2010] WASCA 187
The State of Western Australia v Thompson [2014] WASCA 108
Tran v The State of Western Australia [2013] WASCA 77
Wilson v The State of Western Australia [2010] WASCA 82

1 JUDGMENT OF THE COURT: This is an application for leave to appeal against sentence. On 13 November 2015, the appellant pleaded guilty in the District Court before Davis DCJ to one count which alleged that on 19 August 2014, the appellant possessed a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). On the same day, her Honour sentenced the appellant to 16 months' immediate imprisonment, with eligibility for parole, to commence that day.

2 The only proposed ground of appeal relied upon by the appellant is that the sentence was manifestly excessive.

3 For the reasons that follow, the proposed ground of appeal has no reasonable prospect of succeeding. Accordingly, leave to appeal must be refused and the appeal is to be taken to have been dismissed.

Background

4 The facts of the offending were not in issue and may be briefly summarised in this way. At about midday on 19 August 2014, police officers executed a search warrant at a house occupied by the appellant in Balga. The appellant was not present during the search. In the top bedside cupboard drawer in the appellant's bedroom, the police located three clip seal bags containing a total of 4.94 g of methylamphetamine, of which 1.47 g was found to be 72% pure, and 3.47 g was found to be 76% pure. The police found a quantity of empty clip seal bags; weighing scales; and a cutting agent, all of which are consistent with an intention to sell or supply the methylamphetamine. In addition, the police located numerous glass smoking implements and 15.73 g of cannabis.

5 The appellant was later interviewed by the police and admitted ownership of all of the items located in his bedroom. At the time, the appellant was a heavy user of methylamphetamine. Her Honour found that some of the methylamphetamine was for the appellant's personal use; and some would have been sold to his friends in order to fund his further use of the drug.

Personal circumstances

6 The appellant was 29 years old at the date of sentence and 27 years old when the offence was committed. The appellant's childhood was traumatic. His education and work history were limited, although at the time of sentence, he had been offered a two-and-a-half-year apprenticeship as an electrician and accepted into a six-month pre-apprenticeship course at TAFE.

7 Unfortunately, the appellant has a long history of substance abuse, particularly with cannabis and methylamphetamine, starting at the age of 13. He has an associated and substantial criminal history. It is unnecessary to set out in detail this history, save to observe, as her Honour did, that it shows a disregard for the law.

8 In February 2015, the appellant's grandfather, with whom he had been close, passed away. This event has had a substantial emotional impact upon the appellant.

9 The author of the pre-sentence report noted that the appellant minimised his offending, in part on the basis that he sold to feed his addiction, and 'only sold to friends' (pre-sentence report dated 28 July 2015, p 1).

10 The appellant's primary psychiatric diagnosis by Dr Chun Ong, a consultant psychiatrist who interviewed the appellant on 26 October 2015, was polysubstance dependence. Dr Ong also noted other clinical issues, including depressive symptoms in the context of ongoing methylamphetamine abuse and the death of his grandfather. The appellant revealed to Dr Ong that he was still using cannabis and methylamphetamine. He acknowledged to Dr Ong that his use of methylamphetamine was a problem; however, he was adamant that cannabis was beneficial to him.

Sentencing remarks

11 Her Honour characterised the appellant as a 'user/dealer', but observed that this did not provide him with much in the way of mitigation (sentencing ts 21). After setting out the appellant's personal background in some detail, the learned sentencing judge dealt with his criminal history, noting that her Honour could not afford him any leniency for good character. Pursuant to s 9AA of the Sentencing Act 1995 (WA), the learned sentencing judge gave the maximum reduction of 25% for the appellant's plea of guilty, which, she considered, was made at the earliest reasonable opportunity. In addition, her Honour took into account as mitigating factors the appellant's traumatic background and mental health issues. The learned sentencing judge correctly observed that the major sentencing considerations were personal and general deterrence. Her Honour considered that the only appropriate sentence was a sentence of immediate imprisonment and, in doing so, said that it would be 'inappropriate' to suspend any sentence of imprisonment (sentencing ts 25).

The appellant's submissions to this court

12 The appellant represented himself in this appeal. His primary contention was that, having regard to:

(a) the relatively small quantity of the methylamphetamine involved in the commission of the offence;

(b) the fact that the drugs were to be supplied to a small group of friends to support the appellant's own use; and

(c) the appellant's personal circumstances,

the learned sentencing judge imposed the wrong type of sentence in that a sentence other than immediate imprisonment was appropriate. Alternatively, the appellant submitted that, if immediate imprisonment was the only appropriate sentencing disposition, then a lesser sentence should have been imposed.

Legal principles

13 The general principles applicable to appeals against sentence are well known and need not be repeated. They were accurately stated in Wilson v The State of Western Australia [2010] WASCA 82 [2].

14 To determine whether or not a sentence is manifestly excessive, the sentence must be viewed in light of the maximum sentence prescribed by law for the offence; the standards of sentencing customarily observed with respect to the offence; the place which the criminal conduct occupies on a scale of seriousness of offences of that type; and the personal circumstances of the offender.

15 The maximum penalty for the offence of possession of a prohibited drug with intent to sell or supply it to another is 25 years' imprisonment, and/or a fine of $100,000: s 34(1)(a) of the Misuse of Drugs Act.

16 By s 6(4) of the Sentencing Act:

A court must not impose a sentence of imprisonment on an offender unless it decides that -

(a) the seriousness of the offence is such that only imprisonment can be justified; or

(b) the protection of the community requires it.

17 A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended imprisonment. See s 39(2) and s 39(3) of that Act. The sentencing judge must be positively satisfied that it is not appropriate to suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] - [14] (McLure JA), [58] (Buss JA) and Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P, Mazza J agreeing).

18 The discretion to suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84]. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86].

19 The principles applicable to suspended sentences for serious drug offences were explained by McLure P (with whom Owen & Wheeler JJA agreed) in Cartwright v The State of Western Australia [2010] WASCA 4 [8] - [10] as follows:

Section 39(2) of the Sentencing Act 1995 (WA) (the Act) sets out the various sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Act a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term; the power to suspend is not confined by reference wholly, mainly or specially to the effect that suspension would have on the rehabilitation of a particular offender: Dinsdale v The Queen (2000) 202 CLR 321 [18], [26], [84], [85].

However, as noted in Collins v The State of Western Australia [2007] WASCA 108 [17], the sentencing discretion is not to be exercised in a vacuum. A sentencing judge must impose a type of sentence that falls within a sound discretionary range. The decisions of this court and its predecessor provide guidance to sentencing judges with the aim of achieving consistency in sentencing. 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: The State of Western Australia v Saxild [2008] WASCA 156 [12]. Thus, the imposition of a sentence other than immediate imprisonment for such an offence is, as a matter of fact, exceptional: The State of Western Australia v Andela [2006] WASCA 77 [17]; Saxild [13].

However, even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge is not relieved of his or her obligation to determine the appropriate penalty in the particular case. In such circumstances the question for the sentencing judge is whether having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence: Collins [21].

20 So, ordinarily, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for a serious drug offence. In other words, the imposition of a suspended term of imprisonment is, as a matter of fact, exceptional. See The State of Western Australia v Johnson [2010] WASCA 187 [15] - [25].

21 The fact that an offender deals in small quantities of a prohibited drug at street level does not bring an offender within the exceptional category. See Duong v The State of Western Australia [2006] WASCA 110; (2006) 32 WAR 246; Ness v The State of Western Australia [No 2] [2013] WASCA 56 and Tran v The State of Western Australia [2013] WASCA 77.

22 As to the range of sentences where an offender has been convicted of possession of a relatively small quantity of a prohibited drug, with intent to sell or supply it to another, see Ness; Apkarian v The State of Western Australia [2015] WASCA 67 and Fenton v The State of Western Australia [2015] WASCA 255; and the cases cited in those decisions.

Disposition of the application for leave to appeal

23 The learned sentencing judge's characterisation of the appellant as a user/dealer does not, as her Honour observed, afford the appellant much mitigation. The appellant intended to sell some of the methylamphetamine into the community. There was therefore an element of commerciality to what he did. While the quantity of methylamphetamine was relatively small, the purity was high. Although not the primary factors for consideration, the quantity and purity of the drug remain relevant and important because they impact on the scope and extent of the potential harm to the community.

24 There are very few recent cases decided by this court in which a suspended imprisonment order has been upheld or imposed on appeal for offences against s 6(1) of the Misuse of Drugs Act. The appellant cited one such case in support of his contention that her Honour should have imposed a suspended term of imprisonment, being The State of Western Australia v Thompson [2014] WASCA 108. We will not canvass the facts and circumstances of that case. It is sufficient to observe that they were very different from the present case.

25 The appellant's antecedents were not favourable. He has little insight into the adverse effects of his offending. He was, shortly before being sentenced, still using illicit drugs. Despite his claim that he was prepared to undertake counselling - which was repeated at the hearing of this application - there is, as yet, no demonstrated rehabilitation. As her Honour said, personal and general deterrence were the dominating sentencing considerations in this case.

26 It is not reasonably arguable that, having regard to the circumstances of the appellant and the offending and all other relevant sentencing factors, the learned sentencing judge erred in imposing a term of immediate imprisonment. Her Honour did not impose the wrong type of sentence.

27 As to the length of the term of imprisonment, it is not reasonably arguable that the term of 16 months was manifestly excessive. During his oral submissions, the appellant referred to two cases involving offenders named 'Murray' and 'Perejuan'. These are not decisions of this court and appear to be sentences imposed at first instance; accordingly, they cannot assist the appellant.

28 Having regard to all of the circumstances and relevant sentencing considerations, the sentence imposed upon the appellant was not plainly unjust or unreasonable.

Conclusion and orders

29 The proposed ground of appeal has no reasonable prospect of succeeding. Leave to appeal should be refused. The orders that we would make are as follows:

1. Leave to appeal is refused.

2. The appeal is dismissed.