Wadeson v The State of Western Australia
[2018] WASCA 171
•5 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WADESON -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 171
CORAM: BUSS P
MAZZA JA
HALL J
HEARD: 10 SEPTEMBER 2018
DELIVERED : 5 OCTOBER 2018
FILE NO/S: CACR 123 of 2018
BETWEEN: DALE JORDAN WADESON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BURROWS DCJ
File Number : IND 1979 of 2017
Catchwords:
Criminal law - Appeal against sentence - One count of supplying prohibited drug (25C-NBOMe), one count of possessing stolen or unlawfully obtained property - Whether total effective sentence of 2 years' immediate imprisonment infringed first limb of totality principle - Whether suspended sentence ought to have been imposed - Turns on own facts
Legislation:
Criminal Code (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(c)
Sentencing Act 1995 (WA), s 39(2), s 39(3)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr T F Percy QC & Mr S Nigam |
| Respondent | : | Mr B M Murray |
Solicitors:
| Appellant | : | Nigams Legal Pty Ltd |
| Respondent | : | The Director of Public Prosecutions (WA) |
Case(s) referred to in judgment(s):
Abbott v The State of Western Australia [2018] WASCA 45
Cartwright v The State of Western Australia [2010] WASCA 4
Crichton v The State of Western Australia [No 2] [2014] WASCA 37
Cross v The State of Western Australia [2018] WASCA 86
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fogg v The State of Western Australia [2011] WASCA 11
Franklin v The State of Western Australia [2017] WASCA 102
Grenfell v The State of Western Australia [2018] WASCA 31
Kirkup v The State of Western Australia [2018] WASCA 102
Merai v The State of Western Australia [2018] WASCA 54
Ness v The State of Western Australia [No 2] [2013] WASCA 56
Skipworth v The State of Western Australia [2008] WASCA 64
Stokke v The State of Western Australia [2015] WASCA 131
The State of Western Australia v Andela [2006] WASCA 77
The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198
The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302
The State of Western Australia v Johnson [2010] WASCA 187
The State of Western Australia v Saxild [2008] WASCA 156
The State of Western Australia v Thompson [2014] WASCA 108
JUDGMENT OF THE COURT:
The appellant was convicted on his pleas of guilty of one count of supplying a prohibited drug, namely 25C‑NBOMe, to another, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) and one count of possession of a thing capable of being stolen, namely $325 in cash, that was reasonably suspected of being unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA). He was sentenced to a total effective sentence of 2 years' immediate imprisonment. He seeks leave to appeal against that sentence.
The first ground of appeal, in essence, is that the total effective sentence infringed the first limb of the totality principle in that it was disproportionate to the overall conduct having regard to the appellant's youth, pleas of guilty and the circumstances of the offences. The second ground alleges that the sentencing judge erred by failing to suspend the sentences of imprisonment that were imposed.
Having considered the submissions made by the appellant we have concluded that it is not reasonably arguable that the total sentence imposed was unreasonable or plainly unjust. Nor is it reasonably arguable that the sentencing judge erred by not suspending the sentences imposed. Accordingly, leave to appeal must be refused and the appeal dismissed. Our reasons for that conclusion are as follows.
The facts
Between 7.00 pm and midnight on Wednesday, 8 February 2017, the appellant was in company with a number of friends and associates at a carpark in Aveley. During the evening, members of the group smoked cannabis and drank alcohol.
The appellant was in possession of a clipseal bag containing a crystallised illicit drug known as N-bomb. The abbreviated chemical name of this drug is 25C‑NBOMe.[1] It was described in the admitted facts as a designer drug similar to LSD. One of the others present described the drug as looking like blu‑tac and said that the amount in the appellant's possession was about the size of a 10 cent piece.
[1] The full chemical name is N-(2-Methoxylbenzyl)-2,5-Dimethoxy-4-Chlorophenethylamine.
One of the appellant's friends, Corey De Bie, asked him whether he had any of the drug. After some initial reluctance, the appellant agreed to supply Mr De Bie with some of the drug. He placed a small amount, estimated to have been half a point (0.05 g), into another clipseal bag which he then sold to Mr De Bie for $20. Mr De Bie was 19 years of age at the time.
The appellant cautioned Mr De Bie about the effects of the drug and told him to only take a small amount of it. According to another of those present, the appellant said he had supplied the drug to four other people 'who have all ended up in hospital'. However, it would appear that Mr De Bie took all of the drug at once. He then began behaving erratically, ran away from the group and did not return. He was found by police the following morning in a nearby park and was pronounced deceased by attending paramedics.
A post‑mortem examination was carried out. This established that the cause of death of Mr De Bie was combined drug toxicity, specifically 25C‑NBOMe in combination with a second drug, 4‑fluoroamphetamine. There is no suggestion that Mr De Bie consumed any drug other than that supplied to him by the appellant. The likelihood is that the 4‑fluoroamphetamine detected was a contaminant.
At about 2.00 pm on Friday, 10 February 2017, police executed a Misuse of Drugs Act search warrant at the appellant's residence in Aveley. The appellant was not at home at the time. During the search, police located a wooden box in the room occupied by the appellant. Inside the box was a pouch containing two bundles of cash, one of $150 and the other $175. The total amount of $325 was seized by police on suspicion it was derived from drug dealing.
The appellant attended the Midland Detectives office on the afternoon of 10 February 2017 where he participated in an electronically‑recorded interview. He made some admissions, but denied knowledge of Mr De Bie taking the drug, denied supplying the drug to anyone and denied that anyone had ever gone to hospital for anything that he had provided. He admitted that the cash in the wooden box was his and claimed that it represented his savings.
The appellant was charged with the two offences to which he later pleaded guilty, and appeared before a magistrate on 11 February 2017. He was also charged with a further offence of being in possession of cannabis with intent to sell or supply. The charges were mentioned on a further eight occasions in the Magistrates Court. On 31 October 2017, the appellant entered pleas of not guilty and was committed for trial to the District Court. He appeared for the first time in the District Court on 2 February 2018. Following negotiations, which resulted in the discontinuance of the cannabis charge, the appellant entered pleas of guilty to the other charges on 1 March 2018. He was sentenced on 15 June 2018. He was on bail until the date of sentencing. The sentences imposed were backdated by one day to take into account a day spent in custody before he was released on bail on 11 February 2017.
Personal circumstances
The appellant was 18 years old at the time of the offending and 20 years old when he came to be sentenced. He is the only child of his parents' union, which ended when he was an infant. Both of his parents have been illicit drug users.
The appellant was predominantly raised in the Perth area by his mother, who had a number of relationships with men that were described as dysfunctional and abusive. He spent two years in Broome with his father between the ages of 10 to 12 years, which were the most stable he experienced in his childhood. However, he felt homesick and returned to live with his mother in Perth.
The appellant experienced a childhood of deprivation and social isolation. He disliked school. He recalls being truant, getting into fights and being self‑conscious about his family life. He completed year 10 and then commenced an alternative education program, which he ceased because he felt it was unhelpful. He did some part‑time work but was unable to secure permanent employment when he left school.
When the appellant was around the age of 16, his mother and her then partner were evicted from their Homeswest house. The family then moved in with the appellant's grandmother for a period. The house was overcrowded and he moved out, following which he was homeless and 'couch surfed' for a period. He commenced receiving Centrelink benefits from the age of 18 and also did intermittent brick paving work, but his primary source of income for at least a year prior to the current offending was small‑scale drug dealing.
About a year prior to committing the offences the appellant had been offered a room at the house of a friend. His friend's family has been supportive of him and he has worked for his friend's father from time to time when work was available. In sentencing submissions the appellant's counsel advised that the appellant was presently working full-time as a brick-paver. His friend's mother also provided a character reference for him.
The appellant commenced smoking cannabis when he was aged 12. This use increased over time until he was smoking cannabis on a daily basis. He does not perceive this drug as having posed problems for him and has said that it helps him to relax. He was using cannabis regularly at the time of committing the offences. He ceased smoking cannabis for around two months following his arrest, but then began using alcohol excessively. He relapsed into cannabis use after having an argument with his mother and was again using cannabis regularly by the time he came to be sentenced. He was introduced to methylamphetamine at the age of 16 and formed a habit which lasted for around one year. He has also used MDMA and LSD. He expressed a particular liking for LSD.
A psychologist's report noted that the appellant had a number of risk factors for reoffending, including antisocial attitudes, antisocial peers, family problems, poor educational and vocational functioning, a lack of prosocial leisure activities and substance abuse problems. Drug detoxification and participation in a long‑term residential rehabilitation program was said to be the most appropriate course of action to address the causes of his offending. Vocational counselling and guidance was also recommended. The report does not refer to any diagnosed mental health conditions.
There is a reference in the psychologist's report to the appellant having previously attended counselling. Other material provided at the time of sentencing shows that this occurred between 18 February 2016 and 31 March 2017 with the Wungening Aboriginal Corporation. A letter from that organisation stated that the appellant responded positively to counselling and contributed to group discussions. He had also consulted a doctor on 13 March 2017, reporting depression and withdrawal symptoms after reducing his use of drugs. He was advised by the doctor to make contact with a drug and alcohol service to assist with his rehabilitation. There was no evidence that the appellant had undertaken any further counselling or drug‑related programs in the 12 months prior to being sentenced.
The appellant has a criminal record both as a juvenile and as an adult. As a juvenile this includes offences of possessing cannabis with intent to sell or supply and possessing drug paraphernalia. As an adult, he committed an offence of simple possession of cannabis on 30 July 2016 which was dealt with on 21 February 2017, when a fine of $600 was imposed. It is not clear from his record whether he was on bail for that offence at the time he committed the present offences. However, whilst on bail for the present offences he committed further offences on 16 December 2017 of unlawfully possessing prescription drugs and possessing drug paraphernalia. These later offences were relevant to the question of rehabilitation and were referred to by the sentencing judge in that context.
The appellant's account
The appellant told the author of the pre‑sentence report that he would never get over the death of his friend and was accepting of any sentencing disposition decided by the court. He said that he had initially refused Mr De Bie's request to supply him with N-bomb because he knew how potent and dangerous it was and did not want him to be at risk of being harmed. He said that he repeatedly declined Mr De Bie's requests, but eventually gave him what he described as the 'tiniest' amount.
The appellant told the psychologist that he had been given a quantity of N-bomb which he initially believed to be MDMA. He discovered this was not the case due to the nature of the hallucinogenic effects of the drug. He said that he decided not to sell this particular drug to 'randoms' and kept it predominantly for himself due to its potent effects. However, he estimated supplying it to five people prior to his arrest, two of whom had negative reactions (including one hospitalisation). He could not clearly account for his decision to supply the drug to Mr De Bie given his awareness of its potency and the risk of adverse effects, except to suggest that Mr De Bie had been 'harassing' him for 20 minutes, which annoyed him. He also said that he did not want to appear to be stingy or unwilling to help a friend. He was aware that Mr De Bie reacted negatively and said that he told his other friends to watch him and give him water before deciding to leave. He acknowledged feeling worried to some extent, but denied entertaining the possibility that Mr De Bie was in danger of losing his life.
Sentencing remarks and sentences imposed
The grounds of appeal do not allege that the sentencing judge made any express errors. At the hearing of the appeal, senior counsel for the appellant confirmed that there was no challenge to any of the findings made by her Honour. Any suggestions to the contrary in the written submissions were disavowed.[2]
[2] Appeal ts, 2.
After referring to the facts, her Honour noted that the appellant had been untruthful when interviewed by the police. She said that she accepted that the appellant may have panicked, but he had not told the police what had happened that night straight away.[3]
[3] Sentencing ts, 33 - 34.
In relation to the cash found in the wooden box, her Honour found that this money was derived from the appellant's occupation at the time, which was a 'low‑level dealer in various drugs'. She found that the appellant dealt in drugs to survive and to feed his own drug habit. She noted that the appellant had admitted that his primary source of income at the time the offences were committed was the sale and supply of illicit substances.[4]
[4] Sentencing ts, 34, 36.
In regard to rehabilitation, her Honour said that the appellant had undertaken a period of counselling in 2016 and 2017, but that there was no evidence before her of any attendance or attempts at formal rehabilitation from the date of his last attendance at counselling on 31 March 2017.[5] Her Honour said that there was a real question as to his commitment to rehabilitation. She accepted that he had reduced the variety of drugs that he was taking. She noted that he was no longer taking any drugs other than cannabis, but said that until he ceased that use his issues were likely to remain.[6]
[5] Sentencing ts, 37.
[6] Sentencing ts, 38.
Her Honour referred to the appellant's admission that he had supplied N‑bomb to a number of other people, two of whom had had negative reactions. She noted that the appellant had told Mr De Bie not to take all of the drug at once. She said that the relevance of this was that the appellant was aware that this was a very dangerous drug. He had used it himself and had seen its adverse effects on other people. She said that this was a factor that significantly aggravated count 1, the drug offence.[7]
[7] Sentencing ts, 37 - 38.
Her Honour referred to three victim impact statements from members of Mr De Bie's family and referred to his life being tragically cut short. However, she acknowledged that the appellant was not to be sentenced for causing Mr De Bie's death. That death was a factor that she took into account, whilst noting that Mr De Bie took the drugs willingly. Whilst the appellant was not to be sentenced for causing Mr De Bie's death, she said that this case was an illustration of the danger of the distribution of illicit drugs.[8]
[8] Sentencing ts 38 - 39.
Her Honour referred to the fact that at the time the offences were committed the appellant was engaged in selling and supplying drugs. This was not a one‑off supply or an isolated incident. It was, as the appellant admitted, his principal source of income and had been since he had left home.[9]
[9] Sentencing ts 40.
In regard to mitigating factors, her Honour referred to the appellant's pleas of guilty. She said these were entered at a relatively early stage, but not at the earliest opportunity, and that a 20% discount pursuant to s 9AA of the Sentencing Act 1995 (WA) was appropriate. She was also satisfied that the appellant was genuinely remorseful for his actions and that this was indicated by comments he had made to the authors of the pre‑sentence report and the psychological report.[10]
[10] Sentencing ts 40 - 41.
Her Honour made specific reference to the fact that the appellant was aged 18 at the time of the offence and was aged 20 at the time of sentencing. She said that this was a mitigating factor which she took into account. She acknowledged that the appellant had a difficult upbringing. She also took into account the fact that he had suffered some adverse consequences as the result of media coverage of the events.[11]
[11] Sentencing ts 41.
Her Honour referred to the appellant's 'relatively minor' criminal record. Whilst his record was not treated as aggravating, her Honour noted that the record reflected ongoing use of drugs and the need to impose a sentence that would deter the appellant, and others in the community, from committing offences of this type.[12]
[12] Sentencing ts 41 - 42.
Her Honour noted the importance of general deterrence in dealing with offences of this nature and concluded that only a sentence of imprisonment could be justified. She was satisfied that a suspended sentence was not appropriate in all the circumstances of the case.[13]
[13] Sentencing ts 43 - 44.
Her Honour imposed a sentence of 2 years' immediate imprisonment on count 1 and 6 months' immediate imprisonment on count 3 (count 2 having been discontinued). The sentence on count 3 was ordered to be served concurrently, producing a total effective sentence of 2 years' immediate imprisonment. An order was made that the appellant be eligible for parole.
Grounds of appeal
The grounds of appeal are as follows:[14]
[14] Appeal book, 7.
(1)The total sentence imposed was manifestly excessive having regard to all the circumstances.
Particulars
Having regard to:
(a)The offender's youth;
(b)The plea of guilty; and
(c)The circumstances of the offences.
(2)The learned Sentencing Judge erred by failing to suspend the sentence of imprisonment that was imposed.
The relevant principles
An appellate court dealing with an appeal against sentence can intervene only if the appellant demonstrates either an express or implied material error. Implied error arises where the end result is so unreasonable or plainly unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion differently. The appellant must demonstrate that the outcome was one that was not open to the sentencing judge in the proper exercise of his or her discretion.[15]
[15] Cross v The State of Western Australia [2018] WASCA 86 [32].
Although the first ground of appeal refers to the total sentence being manifestly excessive, that is a phrase usually reserved for challenges to individual sentences. Where the challenge is to the total effective sentence, it is usual to refer to an alleged implied error arising from the aggregate sentence being disproportionate to the total criminality. In the present case, it is apparent that ground 1, notwithstanding the phraseology used, relied on the first limb of the totality principle.
The nature and content of the first limb of the totality principle is well known. It requires a judge who is sentencing an offender for multiple offences to ensure that the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to all the circumstances of the case, including those referable to the offender personally. A claim that a total effective sentence infringes the first limb of the totality principle asserts an implied error. For such a claim to succeed, the appellant must establish that the aggregate sentence was unreasonable or plainly unjust.[16]
[16] Grenfell v The State of Western Australia [2018] WASCA 31 [59].
Sentences imposed in comparable cases may provide a yardstick or reference point for ensuring broad consistency in sentencing. However, what the courts seek to achieve is consistency in the application of principle, not mathematical equivalence of sentences.[17] Referring to one or two other cases which are said to be broadly comparable will rarely assist in advancing an argument that a sentence is unreasonable or plainly unjust.[18]
[17] Stokke v The State of Western Australia [2015] WASCA 131 [75].
[18] See, eg, Merai v The State of Western Australia [2018] WASCA 54 [56].
The major sentencing considerations for drug offences of the kind committed by the appellant are general and personal deterrence. Although the weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The purity of the drug concerned is often a significant factor. Matters personal to an offender will almost always be given reduced weight.[19]
[19] Abbott v The State of Western Australia [2018] WASCA 45 [60].
The approach to be taken to suspended imprisonment in cases of drug offending was described by McLure P in Cartwright v The State of Western Australia.[20] Generally, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for serious drug offences. The incentives, financial and otherwise, to participate in illicit drug dealing must be counterbalanced by a clear and certain understanding that such involvement will ordinarily, as a matter of fact, result in a penalty of immediate imprisonment.[21] Thus, the imposition of a sentence other than immediate imprisonment for such an offence is, as a matter of fact, exceptional.[22] However, even if a term of immediate imprisonment is generally, as a matter of fact, the appropriate penalty, a sentencing judge is always obliged to determine the appropriate penalty, in the particular case, having regard to all relevant sentencing factors.
[20] Cartwright v The State of Western Australia [2010] WASCA 4 [9] - [10].
[21] The State of Western Australia v Saxild [2008] WASCA 156 [12].
[22] The State of Western Australia v Andela [2006] WASCA 77 [17] and Saxild [13].
Youth and the absence of prior relevant convictions do not ordinarily, as a matter of fact, result in the suspension of a term of imprisonment for drug dealing offences. It is not uncommon for young persons, otherwise of good character, to engage in the distribution of prohibited drugs. The imposition of a term of immediate imprisonment even where the offender is young, without prior convictions and has made positive steps towards rehabilitation reflects the significant weight accorded to the need for general deterrence and the prevalence of offending of this type among young people.[23]
[23] The State of Western Australia v Johnson [2010] WASCA 187 [25].
In The State of Western Australia v Baldini,[24] McLure P reviewed a number of cases involving drug offending by young offenders. Her Honour said:
My review of the cases again for the purpose of this appeal confirms that youth, in combination with some or all of prior good character, early guilty plea, remorse, advantaged background, family support, positive steps towards rehabilitation and no significant risk of re offending does not ordinarily avert the imposition of a term of immediate imprisonment.
[24] The State of Western Australia v Baldini [2015] WASCA 39; (2015) 249 A Crim R 198 [25].
A drug dealer (including an active low‑level dealer) will not ordinarily receive a lesser type of sentence than a term of immediate imprisonment because when he was apprehended he only had a small quantity of drug. An offender's status as a drug dealer illuminates his moral culpability and underscores the need for personal and general deterrence.[25]
[25] Ness v The State of Western Australia [No 2] [2013] WASCA 56 [32] ‑ [34] (Buss JA, McLure P agreeing).
The maximum penalties applicable to the individual offences are relevant in assessing the seriousness of the criminal conduct. In this case, the maximum penalty for supplying a prohibited drug, contrary to s 6(1)(c) of the Misuse of Drugs Act, is 25 years' imprisonment or a fine of $100,000 or both. The maximum penalty for being in possession of a thing capable of being stolen and which is reasonably believed to have been unlawfully obtained, contrary to s 417(1) of the Criminal Code, is 7 years' imprisonment.
Appellant's submissions
The appellant submitted there was a combination of factors that justified the imposition of a suspended sentence or, at least, a lesser term of imprisonment than that imposed. Those factors were said to be the appellant's youth, the small quantity of drugs supplied, that the supply was initiated by a request from Mr De Bie, the very small financial gain, that the appellant pleaded guilty, that he had engaged in some rehabilitation and that the death of his friend had had a 'profound impact' on him.
It was also submitted that the sentencing judge must have been overly influenced by the fact that Mr De Bie died as a result of his use of the drug. Senior counsel conceded that the death was a relevant circumstance, but said that the appellant had not been charged with causing the death and should not be sentenced as if he had. It was acknowledged that the sentencing judge had specifically stated that the appellant was not to be punished for causing the death.
Respondent's submissions
The respondent submitted that both the individual sentence for count 1 and the total effective sentence are broadly consistent with customary sentencing standards.
The fact that the appellant was a low‑level drug dealer and was aware of the danger inherent in the drug he was supplying justified the sentence imposed, notwithstanding any mitigating factors, including the appellant's youth. The respondent relied on other cases which involved youthful offenders and in which the inappropriateness of a suspended term of imprisonment was affirmed: Kirkup v The State of Western Australia;[26] Franklin v The State of Western Australia;[27] The State of Western Australia v Baldini;[28] The State of Western Australia v Johnson;[29] and The State of Western Australia v Andela.[30]
[26] Kirkup v The State of Western Australia [2018] WASCA 102.
[27] Franklin v The State of Western Australia [2017] WASCA 102.
[28] Baldini.
[29] The State of Western Australia v Johnson [2010] WASCA 187.
[30] The State of Western Australia v Andela [2006] WASCA 77.
Merits of the appeal
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.[31]
[31] Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] ‑ [14], [58]; Fogg v The State of Western Australia [2011] WASCA 11 [9].
The discretion to suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy.[32] The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy.[33]
[32] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84].
[33] Dinsdale [86].
The appellant places particular reliance on his youth and the 'small' quantity of drugs involved. It is submitted that those factors, together with the small financial gain, the appellant's pleas of guilty, his efforts towards rehabilitation and the impact on him of the death of Mr De Bie, result in a conclusion that a sentence of suspended imprisonment was justified. Of course, what must be established is that the total sentence actually imposed was unreasonable or plainly unjust.
As to the appellant's youth, this was a relevant factor, but youth does not ordinarily justify the imposition of a suspended sentence for a drug offence if an immediate sentence of imprisonment is otherwise appropriate. Furthermore, the appellant lacked many of the attributes that often accompany youth, including a good prior record. Whilst his prior offending was not of the most serious nature, it did reveal a continuing involvement with drug dealing, something that he admitted.
Nor could the offending be described as a youthful aberration. The appellant admitted that he had been dealing in drugs and that it was his primary source of income for at least the previous year. He admitted supplying other quantities of this particular drug to four or five other people. Nor could he claim that he did not appreciate the potential consequences of supplying this drug. He knew that other people to whom he had supplied the drug had suffered serious adverse consequences.
Another reason why youth is often seen as having particular relevance is that young offenders often have better prospects of rehabilitation than older adult offenders. However, neither the appellant's drug use nor his involvement in dealing in drugs were of short duration. He had made some efforts towards rehabilitation, but this occurred more than a year prior to his sentencing. The sentencing judge made a finding that his steps towards rehabilitation were limited and that he continued to use cannabis on a daily basis. In her Honour's view, the appellant remained at a significant risk of reoffending.
Regarding the quantity of the drugs, the amount that the appellant admitted to supplying was half a point or 0.05 g. Whether this can properly be described as a small quantity depends upon the nature and potency of N‑bomb. There was no expert evidence as to the usual dose rate for this drug, though it was likened to LSD. In this regard, it should be noted that the amount of LSD that determines the court of trial (0.004 g),[34] the amount that gives rise to a presumption of an intention to sell or supply (0.002 g)[35] and the amount for the purposes of drug trafficking (0.01 g)[36] are fractions of those that apply to other drugs. Whilst it is not clear whether this drug can be equated with LSD for all purposes, those figures at least indicate that an amount of 0.05 of a gram of N‑bomb is not necessarily a small quantity.
[34] Misuse of Drugs Act, sch 3.
[35] Misuse of Drugs Act, sch 5.
[36] Misuse of Drugs Act, sch 7.
It is also relevant to note that one of the witness depositions refers to the appellant breaking off a tiny quantity of drug from a larger piece that was about the size of 10 cent coin. Accordingly, the 'small' quantity supplied has to be seen in the context that the appellant had a larger quantity in his possession. Furthermore, the appellant told Mr De Bie not to use all of the drug at once, which indicates that he was not only aware of the potency, but that the amount he was providing was more than a single dose.
As to the small financial reward, it is true that the appellant received only $20 for the drug he supplied. Clearly, the profit to be made here was very small. That, however, is only one factor to take into account. Further, it is relevant that this supply occurred in a context of drug dealing and was not an isolated event.
The appellant referred to two cases in which suspended sentences had been imposed for drug offences. They were Crichton v The State of Western Australia [No 2][37] and The State of Western Australia v Thompson.[38]
[37] Crichton v The State of Western Australia [No 2] [2014] WASCA 37.
[38] The State of Western Australia v Thompson [2014] WASCA 108.
Crichton involved an offender who pleaded guilty to one offence of possession of heroin with intent to sell or supply. An appeal against a sentence of 9 months' immediate imprisonment was allowed and the sentence was suspended for 12 months with supervision and program conditions. Mazza JA (with whom Pullin JA agreed) said that the case had a number of exceptional features. They were the very low quantity of heroin that the offender intended to supply (0.2 g of 1.38 g found in her possession), that the offence was not committed in the context of ongoing drug dealing, that the offender had not purchased the drug with the intention of selling or supplying it to others, that she had only agreed to sell or supply part of the heroin after being placed under pressure to do so, that she cooperated fully with the police, that she pleaded guilty at the first available opportunity, that she had engaged in rehabilitation with some success and was committed to continuing that course, that personal deterrence was not a significant consideration and that the financial gain was modest. His Honour said that none of these factors alone caused him to conclude that the appeal should be allowed. It was the combination of these factors that led to the 'exceptional conclusion' that the sentence of immediate imprisonment in that case was unjust and unreasonable.
Thompson was a State appeal against sentence. The offender in that case was convicted after trial of one count of possession of methylamphetamine with intent to sell or supply. The appeal was allowed and a fine of $2,000 was set aside and a sentence of 18 months' imprisonment suspended for 12 months was substituted. The quantity of drug involved was small and the sentencing judge made unchallenged findings that only a small portion of the drug was intended for supply, without reward, to another. There were other mitigating factors, including the offender's mental condition and that he had remained drug free since being charged.
Each of Crichton and Thompson turned on its own particular facts. There are many differences between each of those cases and that of the appellant. Those cases involved different drugs. In both of those cases there had been significant steps towards rehabilitation. In Crichton there was no finding that the offence had occurred in the context of drug dealing. In Thompson there was no finding of any commercial element in the offending.
In the present case, the appellant supplied a drug knowing it was very dangerous, committed the offence in the context of ongoing low‑level drug dealing, lied to the investigating officers and remained at a significant risk of reoffending. The small sample of cases referred to by the appellant is of little assistance, other than providing illustrations of the manner in which the established principles have been applied in two other cases which involved different drugs and different personal circumstances.
As noted by the sentencing judge, a significant aggravating factor in this case was the appellant's knowledge of the risk of harm associated with the drug that he was supplying. He knew that other people had suffered adverse effects, at least one requiring hospitalisation. It was suggested in the appellant's written submissions (though not in oral submissions) that the dangerousness of the drug should not have been considered an aggravating factor. Support for this contention was said to be found in The State of Western Australia v Higgins.[39] That submission is misconceived. The issue in Higgins was whether the relative harm caused by different drugs was relevant for the purpose of sentencing for offences under the Misuse of Drugs Act. In this case, the sentencing judge was not concerned with any comparison of this drug with other types of drugs, but with the appellant's state of mind at the time he supplied the drug. In our view, her Honour was correct in viewing the appellant's knowledge of the likely adverse effects of the drug he was supplying as being a significant aggravating factor.
[39] The State of Western Australia v Higgins [2008] WASCA 157; (2008) 200 A Crim R 302.
There is no basis for inferring that the sentencing judge sentenced the appellant as if he had been charged with an offence of causing the death of Mr De Bie. Her Honour specifically stated that she would not do that and the sentence does not support a conclusion that she did. The appeal relies on establishing that the sentence was, in all of the circumstances, unreasonable or plainly unjust. The fact that a death occurred was relevant because it showed that the drug was dangerous, as the appellant knew. Her Honour properly had regard to that circumstance.
The appellant has failed to establish that it was not reasonably open to the sentencing judge to impose the sentences that she did. It has not been established that either the length of the sentences, or the fact that they were not suspended, support a conclusion that, in all of the circumstances, the total effective sentence imposed infringed the first limb of the totality principle (ground 1). Nor has it been established that there was any other error in not suspending the sentences (ground 2). Her Honour did not impose the wrong type of sentence in relation to either offence. The total sentence imposed was not unreasonable or plainly unjust.
Conclusion
Neither of the grounds of appeal has a reasonable prospect of succeeding. Leave to appeal should be refused with the consequence that the appeal is dismissed.
Orders
1.Leave to appeal refused.
2.Appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CS
ASSOCIATE TO THE HONOURABLE JUSTICE MAZZA5 OCTOBER 2018
4
19
3