Waters v Wigger
[2017] WASCA 46
•13 MARCH 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: WATERS -v- WIGGER [2017] WASCA 46
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 19 JANUARY 2017
DELIVERED : 13 MARCH 2017
FILE NO/S: CACR 194 of 2016
BETWEEN: CRAIG ANTHONY WATERS
Appellant
AND
FRANCIS WIGGER
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :KENNETH MARTIN J
Citation :WATERS -v- WIGGER [2016] WASC 377
File No :SJA 1058 of 2016
Catchwords:
Drug court - Indicated sentence - Principles of sentencing - Miscarriage of justice
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Sentencing Act 1995 (WA), s 4(1), s 9AA, s 15, s 33B, s 33C, s 33D(c), s 33G(2), s 33G(6), s 33H(2)(b), s 33K, s 81(1), s 83(1), s 84A(2), s 84A(6), s 84C(2)(b), s 84N s 84R
Sentencing Regulations 1996 (WA), reg 4A
Result:
Appeal allowed; matter remitted to Magistrates Court for resentence
Category: A
Representation:
Counsel:
Appellant: In person
Respondent: Mr L M Fox
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Fenton v The State of Western Australia [2015] WASCA 255
Law v The State of Western Australia [2009] WASCA 193
MOD v The State of Western Australia [2011] WASCA 23
Pepper v The State of Western Australia [2005] WASCA 177
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Storey [1998] 1 VR 359
The State of Western Australia v Andela [2006] WASCA 77
The State of Western Australia v Baldini [2015] WASCA 39
The State of Western Australia v Johnson [2010] WASCA 187
The State of Western Australia v Thompson [2014] WASCA 108
Waters v Wigger [2016] WASC 377
Wright v McMurchy [2012] WASCA 257
BUSS P & MAZZA JA: On 6 July 2015, the appellant was charged with one offence in a prosecution notice.
The charge alleged that on 27 June 2015, at Murdoch, the appellant had in his possession a prohibited drug, namely amphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). The total quantity of the drug was approximately 3.99 g.
On 27 October 2015, the appellant indicated in the Magistrates Court that he would plead guilty to the offence. He was remanded to the Drug Court for assessment and subsequently was accepted into the Drug Court programme.
On 9 November 2015, the appellant was convicted, on his plea of guilty in the Magistrates Court, of the offence.
On 18 March 2016, Magistrate Campione made a pre‑sentence order in respect of the appellant, with a duration of 12 months and supervision and programme requirements, pursuant to pt 3A of the Sentencing Act 1995 (WA).
On 6 May 2016, Magistrate Campione suspended the appellant's participation in the Drug Court.
On 20 May 2016, Magistrate Campione terminated the appellant's participation in the Drug Court and remanded him for sentencing.
On 20 June 2016, the appellant appeared before Chief Magistrate Heath for sentencing. After hearing from the prosecutor and defence counsel, his Honour imposed a sentence of 12 months' immediate imprisonment with eligibility for parole.
The appellant applied for leave to appeal to the General Division of the Supreme Court against his sentence. He relied on four proposed grounds of appeal. Kenneth Martin J refused leave to appeal on each ground and dismissed the appeal. See Waters v Wigger [2016] WASC 377.
The appellant has now applied for leave to appeal to this court against Kenneth Martin J's decision.
We would grant leave to appeal on ground 6 and allow the appeal. The orders proposed by Mitchell JA should be made. Our reasons are as follows.
The facts and circumstances of the offending as alleged by the prosecution
On 20 June 2016, at the sentencing hearing before the Chief Magistrate, the prosecutor read aloud the facts and circumstances of the offending, as alleged by the prosecution. The alleged facts and circumstances were as follows.
On 27 June 2015, the appellant was driving a motor vehicle on a road in Murdoch. He was stopped by police. The police officers spoke to him about another matter. They noticed that he was holding two fake vehicle registration plates. The police officers saw that the vehicle had been fitted with electronic number plate switchers on its front and rear. The switchers were operational and fitted with fake registration plates. The appellant was the registered owner of the vehicle. He was the sole occupant when the vehicle was stopped by the police.
The police officers searched the appellant and found a small plastic container in his underwear. The container held four clipseal bags. Three of the bags contained a crystal substance. Forensic testing revealed that the substance was amphetamine. The total weight of the amphetamine was approximately 3.99 g.
The police officers searched the appellant's vehicle and found a mobile telephone. The appellant admitted that the telephone belonged to him. Later, data on the mobile telephone was downloaded. It included numerous messages which showed that the appellant was involved in selling and supplying prohibited drugs. The appellant's wallet was searched. It contained $920 cash. The appellant was unable to explain the source of the money. The police officers' search of the appellant's vehicle also located a taser in the shape of an iPhone on the driver's seat next to the appellant's wallet. The appellant told the police officers that it was a broken iPhone, but the officers were able to operate the taser and cause it to spark.
Later, police executed a search warrant at the appellant's home. The police located about 10 g of cannabis material; glass smoking implements with a white residue, believed to be amphetamine; and an electric shock 'taser‑type device' in a 'BMW‑type key ring'.
Pre‑sentence orders made under the Sentencing Act
As we have mentioned, Magistrate Campione made a pre‑sentence order in respect of the appellant, with a duration of 12 months and supervision and programme requirements, pursuant to pt 3A of the Sentencing Act.
Section 33B(1) of the Sentencing Act provides that a pre‑sentence order is an order that:
(a)the offender must appear before the court at the time and place specified in the order (the sentencing day) to be sentenced for the offence or offences to which the order applies; and
(b)while the order is in force the offender must comply with the standard obligations in s 33D and such of the primary requirements in s 33E as the court imposes.
By s 33B(2), the sentencing day must be not more than two years after the date on which the pre‑sentence order is made.
Section 33B(3) provides that a pre‑sentence order:
(a)comes into force on the day it is made; and
(b)ceases to be in force on the sentencing day or when a court cancels it, whichever happens first.
By s 33C(1), if a court makes a pre‑sentence order in respect of an offender, the court must adjourn the sentencing of the offender to the sentencing day.
Section 33K(1) provides that a court sentencing an offender who has been subject to a pre‑sentence order, whether on the sentencing day or on a day prior to that day:
(a)must take into account the offender's behaviour while subject to the order; and
(b)may use any sentencing option available to the court under pt 5 of the Sentencing Act in respect of the offence concerned.
By s 33K(3), the court referred to in s 33K(1) need not be constituted by the same judicial officer as constituted the court when the pre‑sentence order was made.
The Drug Court and 'indicated sentences'
The structure and objects of the Drug Court and the purpose of an 'indicated sentence' are set out in the reasons of Mitchell JA.
We merely note that:
(a)The Drug Court is a 'specialty court', as defined in s 4(1) of the Sentencing Act. See reg 4A of the Sentencing Regulations 1996 (WA).
(b)The manner in which the Drug Court is to exercise its functions in relation to the management and supervision of offenders is not specified in the Sentencing Act or any other legislation.
(c)The formulation and announcement of an 'indicated sentence', and the purpose of an 'indicated sentence', are not recognised in, or based upon, any provision of the Sentencing Act or any other legislation.
(d)However, the absence of any legislative recognition of or basis for an 'indicated sentence' does not preclude a Drug Court magistrate from formulating and announcing an 'indicated sentence' in connection with the management and supervision of offenders who have been accepted into the Drug Court program.
The 'indicated sentence' formulated and announced by Magistrate Campione
On 18 March 2016, Magistrate Campione informed the appellant that, in her view, the 'indicated sentence' for the appellant's offending was 12 months' immediate imprisonment with eligibility for parole. Her Honour said:
You can have a seat, because I'm only giving you an indicated sentence. I'm of the view that any magistrate in the general list, to be honest, would have given you a term of immediate imprisonment if you had presented in the Drug Court, and it's hard for me, because if I was in the general list I wouldn't know you from a bar of soap. Now I've had a chance to get to know you, but I've got to put up a barrier in my mind and deal with the indicated sentence, wearing a different hat. It's just shy of the indictable amount.
The circumstances of the commission of the offence are highly concerning. The weapons that you had on you, the iPhone, that actually was a Taser and it sparked when the police tried it. Plus when they executed the search warrant in your home they found another device. I think it was a remote control for a BMW. …
[A]lthough I am sympathetic and I understand your chronic pain situation, it's not mitigation, and the courts can't support someone using drugs because they are experiencing high‑level pain. So you wouldn't get any mitigation in relation to that either. So I can't see any way around it but to tell you that your indicated sentence is 12 months, to be immediately served. I did go back and see whether I would have been prepared to suspend that, but, as I've said, because of the seriousness of that offence, the fact that you've had a record, you've already had a go on an ISO and those surrounding factors, it's not appropriate for an indicated sentence for it to be suspended.
…
I mean, it's a nasty situation, and the inferences that I draw are that there was almost an element of commerciality in that offending, given how you had set yourself up when the police arrested you, with the plate switchers, with those weapons on you (ts 59 ‑ 60).
The sentencing hearing before the Chief Magistrate
As we have mentioned, at the sentencing hearing before the Chief Magistrate on 20 June 2016, the prosecutor read aloud the facts and circumstances of the offending, as alleged by the prosecution. We have previously recounted those alleged facts and circumstances.
Defence counsel submitted, relevantly:
(a)the appellant had instructed him that the mobile telephone found by the police officers in his motor vehicle was not his telephone (ts 3 ‑ 4);
(b)the basis upon which the appellant had pleaded guilty to the offence was that 'in the event that a good mate would have asked him for some [of the amphetamine], he would have shared it' (ts 4); and
(c)the appellant had been using 0.5 g of amphetamine per day before he was apprehended by the police on 27 June 2015 (ts 4).
The Chief Magistrate's sentencing remarks were as follows:
Mr Waters, to your credit you entered a plea of guilty at a relatively early stage in relation to these matters and you were then placed on the Drug Court regime. You were given an indicated sentence upon entering into that regime of 12 months' immediate imprisonment and I note from the Drug Court file that you have had some difficulties in relation to matters. And whilst fairly, there has been some improvement, there have been further positive tests during the time.
Although I accept what has been said by [defence counsel] as to the steps that you have made forward, what needs to be assessed though is whether or not there is sufficient to move from the indicated sentence. Clearly the indicated sentence was appropriate. This was a matter that involved the supply of amphetamine which is of great concern within the community at the moment. Your vehicle at the time you were stopped was fitted with a device to switch your number plates and you were in possession of a taser at the time.
All of which indicate that there was a degree of planning with respect to your involvement and the presence of telephones [sic]. Although you were the sole occupant of the car and you say that the phones [sic] were not yours, it is coincidental then that there were messages concerning the sale of drugs on those phones [sic].
[DEFENCE COUNSEL]: Sir, I apologise. I know this is - not the usual course but there was one thing I did neglect to say. In relation to the taser … he tells me that they were kid's toys. They were three volt and they were just purchased on the internet …
HIS HONOUR: All right. All right. So look, having reviewed those matters whilst there has been a short involvement with the Drug Court I don't think there has been sufficient to divert from the appropriate indicated sentence assessed at the point when the pre‑sentence order was commenced. So in relation to the possession with intent you will be sentenced to 12 months' imprisonment. I will make you eligible for parole.
In my view, that is not sufficient to rely upon a suspension of that sentence at this time. There has not been sufficient demonstration of a change towards rehabilitation (ts 7 ‑ 8). (emphasis added)
The grounds of appeal
The appellant relies on six grounds of appeal.
Ground 6 alleges:
The Chief Magistrate made an error of law in sentencing the appellant on the basis that the appellant should receive the indicated sentence he was given upon entering into the Drug Court regime unless there was a sufficient reason to depart from that sentence.
It is unnecessary to set out or deal with any of the other grounds of appeal.
The merits of ground 6
In our opinion, the Chief Magistrate was bound to sentence the appellant in accordance with, relevantly, the sentencing principles enumerated in div 1 of pt 2 of the Sentencing Act. Division 1 comprises s 6 ‑ s 9AA. Also, his Honour was obliged to take into account the appellant's behaviour while subject to the pre‑sentence order and was empowered to use any sentencing option available to the court under pt 5 of the Sentencing Act in respect of the offence concerned. See s 33K(1) of the Sentencing Act.
His Honour was not entitled to impose sentence on the basis that the appellant should receive the 'indicated sentence' formulated and announced by Magistrate Campione unless there was sufficient reason to depart from that sentence.
It is plain that the Chief Magistrate sentenced the appellant on an erroneous basis; namely, his Honour did not apply the sentencing principles specified in div 1 of pt 2 of the Sentencing Act but, instead, decided that the appellant should receive the 'indicated sentence' unless there was sufficient reason to depart from that sentence. The erroneous approach is apparent from the following:
(a)his Honour's statements in his sentencing remarks that 'what needs to be assessed … is whether or not there is sufficient to move from the indicated sentence' and 'I don't think there has been sufficient to divert from the appropriate indicated sentence assessed at the point when the pre‑sentence order was commenced' (ts 7); and
(b)his Honour's failure to comply with s 9AA of the Sentencing Act in relation to the reduction of the head sentence for the offence 'in order to recognise the benefits to the State, and to any victim of or witness to the offence', resulting from the appellant's plea of guilty.
In Law v The State of Western Australia [2009] WASCA 193, Buss JA (McLure & Pullin JJA agreeing) summarised several well-established propositions in relation to the basis on which a sentencing judge must impose sentence where the offender pleads guilty [25] ‑ [34].
The role of a sentencing judge includes the making of findings of fact, for the purposes of sentencing and to the extent that the judge is able to make relevant findings, on the material received during the sentencing process. See, generally, s 15 of the Sentencing Act, which provides that, to decide on the proper sentence to be imposed, or on imposing an order in addition to sentence, a court sentencing an offender may inform itself in any way it thinks fit.
An aggravating circumstance is a fact or other circumstance likely to result in a more severe sentence than would otherwise be the case. A mitigating circumstance is a fact or other circumstance likely to result in a less severe sentence than would otherwise be the case. The prosecution must prove an aggravating circumstance beyond reasonable doubt, and the offender must prove a mitigating circumstance on the balance of probabilities. See R v Storey [1998] 1 VR 359, 369, 371 (Winneke P, Brooking & Hayne JJA and Southwell AJA); R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [24], [25], [27] (Gleeson CJ, Gaudron, Hayne & Callinan JJ).
The Chief Magistrate's approach to sentencing was also erroneous in that his Honour failed to resolve disputed issues of fact that were material to the basis on which the appellant was to be sentenced. In particular, it was necessary for his Honour to resolve:
(a)whether the appellant was in possession of the amphetamine with intent to sell it to another;
(b)whether the appellant was in possession of the drug with intent to supply it to another on a basis different from the assertion made by defence counsel on his behalf, namely 'in the event that a good mate would have asked him for some [of the amphetamine], he would have shared it' (ts 4); and
(c)as an aspect of the fact‑finding for the purposes of (a) and (b) above, whether the mobile telephone found by the police officers in the appellant's motor vehicle was his telephone.
Ground 6 has been made out.
It is true that ground 6 was not raised or relied on in the appeal before Kenneth Martin J. His Honour therefore did not make an error of law in failing to allow the appellant's appeal by reason of the Chief Magistrate's error as alleged in ground 6. However, we are satisfied that the appeal to this court should be allowed because ground 6 establishes that a miscarriage of justice occurred at the sentencing hearing before the Chief Magistrate. See, in an analogous context, MOD v The State of Western Australia [2011] WASCA 23 [26] (Buss JA, McLure P agreeing).
MITCHELL JA:
Summary
On 27 June 2015, police stopped the appellant's vehicle. A search of the appellant located a plastic container in his underwear. The container held four clipseal bags containing a total of approximately 4 g of methamphetamine.
The appellant was charged with possession of methamphetamine with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (Drugs Act). The appellant pleaded guilty to that offence on 9 November 2015. He was referred to the Magistrates Court, sitting as the 'Drug Court', and was made subject to a pre‑sentence order. On 18 March 2016, Magistrate Campione, sitting as the Drug Court, provided the appellant with an 'indicated sentence' (being the sentence she would have imposed if she had then been sentencing the appellant) of 12 months' immediate imprisonment.
The appellant's participation in the Drug Court program was terminated on 20 May 2016. On 20 June 2016, the Chief Magistrate sentenced the appellant to a term of 12 months' immediate imprisonment in respect of the offence against s 6(1)(a) of the Drugs Act. The appellant was also fined in respect of other summary offences.
The Chief Magistrate approached the appellant's sentencing on the basis that he would impose the indicated sentence unless there was sufficient reason demonstrating that a different sentence should be imposed. The Chief Magistrate erred in adopting that approach. The court was required to sentence the appellant by applying all relevant sentencing principles to all the circumstances of the appellant's case (including those personal to the appellant) existing at the time when the sentence was imposed. While the 'indicated sentence' may be a useful tool in managing offenders in the Drug Court, it does not operate to confine the court's ultimate sentencing discretion in the manner which the Chief Magistrate apprehended.
In this case, by approaching the sentencing exercise by reference to the indicated sentence, the Magistrates Court failed to make findings of fact necessary for the determination of the appropriate sentence.
This error was not identified in the appellant's appeal to the primary judge, sitting in the General Division, who dismissed the appellant's appeal against the sentence imposed by the Magistrates Court. However, this court can allow an appeal on a ground not raised before the primary judge in order to avoid a miscarriage of justice. A miscarriage of justice having been established on the above ground, the appeal from the decision of the primary judge should be allowed.
Because important factual disputes have not been resolved, this court is not in a position to determine the appropriate sentence to be imposed in this case. The appellant's sentence should be set aside and the matter remitted to the Magistrates Court so that the appellant can be sentenced according to law.
The Drug Court and indicated sentences
The Drug Court is prescribed as a 'speciality court' for the purposes of the Sentencing Act 1995 (WA).[1] The principal significance of this designation under the Sentencing Act is to give the court the function, ordinarily exercisable by a community corrections officer, of imposing requirements on offenders whilst they are subject to a pre-sentence or conditionally suspended imprisonment order.[2] A speciality court is also prescribed as a court that may suspend imprisonment conditionally.[3] In that manner the Sentencing Act contemplates the Drug Court being directly involved in the management and supervision of offenders subject to a pre-sentence or conditionally suspended imprisonment order. However, the manner in which the court is to exercise those supervision and offender management functions is not legislatively prescribed.
[1] See the definition of 'speciality court' under s 4(1) of the Sentencing Act read with reg 4A of the Sentencing Regulations 1996 (WA).
[2] Section 33D(c), s 33G(2), s 33G(6), s 33H(2)(b), s 83(1), s 84A(2), s 84A(6), s 84C(2)(b), s 84N ‑ s 84R of the Sentencing Act.
[3] Section 81(1) of the Sentencing Act read with reg 6B(d) of the Sentencing Regulations.
The operation of the Drug Court was described by the Law Reform Commission of Western Australia in reports published in 2008 and 2009.[4] In those reports the Commission noted the practice of the court of identifying an 'indicated sentence', which was the sentence which the court would have imposed if the offender did not participate in the Drug Court program. An identified benefit of this approach was to 'set clear boundaries for participants' who will 'know what will happen if they fail to comply with the program'. Another benefit was to reduce the potential for a Drug Court magistrate, after becoming involved in the participant's life over a substantial period of time, to 'lose objectivity when sentencing an unsuccessful participant.'[5]
[4] Law Reform Commission of Western Australia, Project No 96 Court Intervention Programs Consultation Paper (June 2008) ch 2 and Final Report (June 2009) ch 3.
[5] Consultation Paper, page 56.
The Commission recommended an amendment which would have provided a legislative basis for an indicated sentence, and the impact which it would have on the ultimate sentence. That recommendation has not yet been adopted so, as the law stands, there is no legislative basis for an indicated sentence to constrain the court's discretion when ultimately sentencing a participant in the Drug Court program.
The absence of a legislative basis for an indicated sentence does not preclude a Drug Court magistrate from undertaking the exercise. An expression by a magistrate of a view as to the sentence which would be appropriate at a point prior to the offender completing the Drug Court program may provide an incentive for the offender to comply with program requirements. However, the limited effect of an indicated sentence on the ultimate sentencing outcome must be appreciated. The indicated sentence reflects the view of the magistrate at the time it is indicated, based on the information available to the magistrate at that time. The expression of that view provides an indication to the offender as to the sentence which might be imposed if he or she were to be sentenced at that time without participation in the Drug Court program. However, it cannot fix the sentence which is ultimately appropriate for the offender, or constrain the court's discretion when sentencing the offender at a later time. The ultimate sentence can only be fixed by the exercise of the court's sentencing discretion in light of the information about all relevant circumstances (including those personal to the offender) existing at the date of sentence. The fact that a magistrate has expressed a view about the sentence which he or she thought appropriate at an earlier date does not circumscribe the subsequent exercise of the court's sentencing discretion. The court's sentencing discretion is to be exercised according to the sentencing principles for which the Sentencing Act provides.
The relevant general principles of sentencing are set out in pt 2 of the Sentencing Act. Section 6(1) lays down the fundamental principle that a sentence imposed on an offender must be commensurate with the seriousness of the offence. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors and any mitigating factors. The prosecution bears the onus of proving aggravating factors beyond reasonable doubt, while the offender bears the onus of proving mitigating factors on the balance of probabilities.[6]
[6] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [27].
Section 6(4) of the Sentencing Act provides that a court must not impose a sentence of imprisonment on an offender 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.
Section 9AA(2) of the Sentencing Act provides that, if a person pleads guilty to a charge, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea. Section 9AA(5) provides that, where it reduces the head sentence under s 9AA(2), the court must state that fact and the extent of the reduction in open court.
Section 76(1) of the Sentencing Act provides for the suspension, by up to 24 months, of sentences of imprisonment of 60 months' or less. Section 76(2) provides that suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
Pursuant to s 39(2) and s 39(3) of the Sentencing Act, the Magistrates Court must not impose a term of immediate imprisonment unless satisfied, having regard to the principles set out in div 1 of pt 2, that it is not appropriate to impose suspended imprisonment. That is, a sentencing magistrate 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.[7]
[7] In a speciality court, it would also be necessary for the magistrate to consider whether the conditional suspension of the term of imprisonment under s 81 of the Sentencing Act was appropriate.
These principles fell to be applied by the Chief Magistrate when he came to sentence the appellant. It was the Chief Magistrate's view as to the appropriate sentence, rather than the opinion expressed by Magistrate Campione some months earlier, which was controlling.
Proceedings before Magistrate Campione
The appellant was charged on 6 July 2015. On 27 October 2015, the appellant indicated that he would plead guilty. The appellant was remanded to the Drug Court. The appellant pleaded guilty before Magistrate Campione in the Drug Court on 9 November 2015, and was subsequently remanded on conditional bail on a number of occasions.
On 18 March 2016, Magistrate Campione made a pre‑sentence order. At the same hearing, at which the appellant was represented by counsel, the magistrate undertook an 'indicated sentence' process.
The facts of the offending were not read to the court, and the appellant's counsel said that they didn't need to be read. Counsel told the court:
I note that the psychological report says that he's not accepting some of the facts for those. Nevertheless, he has pleaded guilty, so I don't think - I can't take that any further (18 March 2016, ts 58).
The appellant's counsel then made submissions in mitigation, submitting that a suspended term of imprisonment would be appropriate. She noted the appellant's 'complex regional pain syndrome that he has from a boxing injury', which was 'quite debilitating' and led to his drug use in an effort to reduce pain (18 March 2016, ts 58). The prosecutor also submitted that a suspended term would be appropriate for the drug charge (18 March 2016, ts 59).
However, the magistrate expressed the view that a term of immediate imprisonment would be the only appropriate sentencing disposition. The magistrate, noting the appellant's possession of a Taser in the shape of an iPhone and number plate switchers, inferred that there was 'almost an element of commerciality in that offending'. She said that the indicated sentence in relation to the drugs charge was 12 months' immediate imprisonment (18 March 2016, ts 59 ‑ 60).
At the conclusion of these remarks, the appellant told Magistrate Campione that he disputed a number of the facts alleged by the prosecution. He denied possessing a Taser, and said that the car was not in his possession for the three or four months prior to the night on which he was stopped by police (18 March 2016, ts 61). However, the appellant said that 'I will just take whatever sentence. That's fine.' The magistrate told the appellant that 'you're not taking the 12 months because you're going to work hard in Drug Court'. The magistrate told the appellant that if he did well in Drug Court he would 'get a suspended imprisonment order or something less than that' (18 March 2016, ts 62).
On 20 May 2016, the appellant appeared before Magistrate Campione, who noted issues with the appellant's participation in the Drug Court program, which the appellant attributed to pain management issues. She also noted a urinalysis result of 16 May 2016 which tested positive for methamphetamine. Magistrate Campione told the appellant that the complexity of his medical conditions meant that he fell 'into that box of people that unfortunately, the Drug Court can't help'. She listed the appellant's matters for sentence before the Chief Magistrate, recusing herself from sentencing the appellant 'so that you don't feel that you've been prejudiced in any way' (20 May 2016, ts 4). In the course of her exchange with the appellant, Magistrate Campione said that, since she gave the indicated sentence of 12 months' immediate imprisonment, 'we've all got to know you and your complex issues a lot better' (20 May 2016, ts 5).
Proceedings before the Chief Magistrate
Facts alleged by the parties
The appellant appeared for sentence before the Chief Magistrate on 20 June 2016. The facts alleged by counsel for the prosecution and the appellant are set out in the joint reasons at [12] ‑ [16].
As noted in the joint reasons, the appellant denied two aspects of the facts alleged by the prosecutor. First, the appellant denied that the mobile phone located in the car, said to contain messages relating to the sale and supply of drugs, was his. Secondly, the appellant's counsel indicated that he had asked the appellant about the 'basis upon which he's prepared to accept the plea that he has entered, and that is that in the event that a good mate would have asked him for some, he would have shared it' (20 June 2016, ts 3 ‑ 4). It was implicit in this submission that the appellant denied selling the drug in a commercial operation.
Counsel for the appellant advanced a number of matters in mitigation.
The appellant was 35 years of age and had a good, stable and supportive upbringing. After completing year 12, he attended TAFE for 12 months and then went to work in an administrative role for a storage tanks company for a period of four to five years. The appellant then worked on the railways at the Kewdale Freight Terminal over a nine‑year period. The appellant injured his hand in 2007, which led to surgery in 2011, and 2012. Counsel said that this resulted in the appellant suffering 'complex regional pain syndrome', which was extremely painful. It involved pain streaking from the beginning of his arm right up to the end, causing the appellant 'to have jolts on odd occasions in the arm … during the day'. Counsel said that the appellant's severe pain led to depression and he could not really find anything that would alleviate the pain.
Counsel said that the appellant was introduced to methamphetamine at the end of 2012, and started using it for pain relief. He became addicted to the drug, and was smoking half a gram a day at the time of his arrest in June 2015. Counsel told the court that the appellant had used methamphetamine only once since he pleaded guilty to the charges. Counsel said:
[H]e went to Drug Court. And I understand that the reason why he has - his participation in the Drug Court has been terminated is because he provided a doctor's certificate that wasn't excusing him from his attendance, which wasn't the actual position. So the court was - Ms Campione, I understand - these are my instructions - was of the view that he - she didn't want him in the course anymore, and that's why he's here today (20 June 2016, ts 5).
Counsel said that the appellant was employed, and referred to the employer's reference which spoke highly of the appellant. Counsel submitted that the appellant was receiving psychological assistance in relation to his drug use and his other issues. It was submitted that the appellant was 'on a path to rehabilitation and recovery' and that an intensive supervision order or conditionally suspended imprisonment order would be the appropriate sentencing disposition. (20 June 2016, ts 4 ‑ 7)
The magistrate's approach
The Chief Magistrate did not ask prosecuting counsel to address the factual basis on which he should sentence the appellant before commencing his sentencing remarks. Those remarks are set out in full in the joint reasons at [29]. The Chief Magistrate identified the critical issue as being 'whether or not there is sufficient to move from the indicated sentence'. He expressed the view that the indicated sentence was appropriate. After the appellant's counsel interjected to indicate that the appellant denied possessing a real Taser, the Chief Magistrate concluded:
All right. All right. So look, having reviewed those matters whilst there has been a short involvement with the Drug Court I don't think there has been sufficient to divert from the appropriate indicated sentence assessed at the point when the pre-sentence order was commenced. So in relation to the possession with intent you will be sentenced to 12 months imprisonment. I will make you eligible for parole. In my view, that is not sufficient to rely upon a suspension of that sentence at this time. There has not been sufficient demonstration of a change towards rehabilitation. (20 June 2016, ts 7 ‑ 8). (emphasis added)
Fines were imposed in respect of other offences, and orders for destruction of relevant items made.
Appeal to the primary judge and to this court
The appellant appealed against the sentence of imprisonment on four grounds. That appeal was to the General Division of the court under pt 2 of the Criminal Appeals Act 2004 (WA) (Appeals Act). Section 9 of the Appeals Act provides that the leave of the Supreme Court was required for each ground of appeal. On 18 November 2016, the primary judge refused leave to appeal on all four grounds advanced in the General Division and dismissed the appeal. He published detailed reasons for that decision.[8]
[8] Waters v Wigger [2016] WASC 377.
The appellant now seeks leave to appeal against the primary judge's decision on six grounds. It is only necessary to deal with ground 6, which raises a new matter and was added at the invitation of this court during the hearing of the appeal. Ground 6 is expressed in the following terms:
The Chief Magistrate made an error of law in sentencing the appellant on the basis that the appellant should receive the indicated sentence he was given upon entering into the Drug Court regime unless there was a sufficient reason to depart from that sentence.
Section 16(2) of the Appeals Act provides for a right of appeal to this court from the primary judge's decision. Section 9 and s 18 of the Appeals Act provide that the leave of this court is required for each ground of appeal to this court, and that this court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.
The appeal to this court is by way of rehearing.[9] The Appeals Act does not prescribe the grounds on which an aggrieved party may appeal to this court under s 16 of that Act. However, the appellate power is to be exercised only once an error by the primary court or a miscarriage of justice is demonstrated.[10] Where error is asserted, the grounds of appeal in an appeal under div 3 of pt 2 of the Act must identify an error by the single judge whose decision is under appeal.[11]
[9] Rule 25 of the Supreme Court (Court of Appeal) Rules.
[10] Wright v McMurchy [2012] WASCA 257 [28], [97].
[11] Wright [96].
In the present case, the primary judge cannot be said to have erred in failing to address issues which were not raised by any ground of appeal before him. Accordingly, ground 6 can only succeed if the appellant establishes that a miscarriage of justice has occurred. The respondent accepts that this court may interfere to correct a miscarriage of justice on grounds that were not raised in an appeal to the General Division of the court.
Disposition of ground 6
Taken as a whole, the Chief Magistrate's sentencing remarks show that he treated the indicated sentence as the sentence which the appellant should receive unless there was a sufficient reason to depart from that sentence. The Chief Magistrate said that 'what needs to be assessed though is whether or not there is sufficient to move from the indicated sentence.' He imposed the indicated sentence because he did not 'think there has been sufficient to divert from the appropriate indicated sentence assessed at the point when the pre‑sentence order was commenced.'
The Chief Magistrate did not resolve the disputed question of whether the appellant intended to sell the methamphetamine and was running a commercial enterprise. He noted, but did not resolve, the dispute as to the ownership of the phone and whether the appellant possessed a Taser. It would have been necessary for the Chief Magistrate to resolve these factual questions by a trial of the issues had he been determining the appropriate sentence. The fact that the Chief Magistrate did not do so suggests that he did not regard it as necessary because the indicated sentence had already been determined and the only issue for him was whether sufficient reason to depart from the indicated sentence had been demonstrated.
It is also noteworthy that the Chief Magistrate did not state the extent of the reduction of the head sentence under s 9AA of the Sentencing Act, by reason of the utilitarian benefits of the appellant's plea of guilty. Section 9AA(5) of that Act required the court to state the extent of the reduction in open court. That also suggests that the Chief Magistrate proceeded by reference to the indicated sentence, in circumstances where he did not know the discount which Magistrate Campione would have applied. If the Chief Magistrate had undertaken the sentencing process himself, it would be expected that he would have complied with the requirements of s 9AA(5) of the Sentencing Act.[12]
[12] In this case it is unnecessary to determine whether a failure to comply with s 9AA(5) of the Sentencing Act, in circumstances where it can be inferred that that a reduction was made on account of a plea of guilty.
The Chief Magistrate did say that '[c]learly the indicated sentence was appropriate.' However, it is not apparent how he reached that view without resolving critical factual disputes. Having regard to his reasons as a whole, the proper inference is that the Chief Magistrate treated the indicated sentence as the sentence which the appellant should receive unless there was a sufficient reason to depart from that sentence.
Approaching the appellant's sentencing in that way involved an error of law by the Chief Magistrate which resulted in a miscarriage of justice. The miscarriage of justice arose because the appellant was sentenced without the court making findings of fact which were important for the determination of the degree of the appellant's culpability. Accepting that a magistrate in charge of a busy sentencing list does not need to give elaborate reasons, it is critical that factual disputes which have a significant impact on sentence are properly resolved. Further, the indicated sentence appears to have been imposed on the basis that the appellant was intending to sell the methamphetamine, rather than merely share some with a 'good mate' if asked. As he did not have the transcript of earlier proceedings, the Chief Magistrate would not have been aware of that fact, or the other considerations which Magistrate Campione took into account when she expressed her view as to the appropriate sentence.
The question of whether there was an element of commerciality involved in the offence was of significance for the sentencing of the appellant. Dealing in drugs solely or primarily for commercial gain is an aggravating factor of the offence,[13] which the appellant denied. The respondent bore the onus of proving that aggravating factor beyond reasonable doubt.
[13] The State of Western Australia v Andela [2006] WASCA 77 [14].
A finding that the appellant did not intend to sell the methamphetamine would not necessarily alter the type of sentence to be imposed. The offence remains serious even when the intention is to supply rather than to sell.[14] Ordinarily, a term of imprisonment is the only appropriate sentencing option for an offence against s 6(1) of the Drugs Act, even in the absence of commerciality.[15] The imposition of a suspended term of imprisonment is, as a matter of fact, exceptional.[16] This reflects the gravamen of the offence provided for in s 6(1)(a) of the Drugs Act, being the distribution of illegal drugs which cause significant damage in, and to, the community.[17]
[14] Pepper v The State of Western Australia [2005] WASCA 177 [89] ‑ [93], [101] ‑ [103].
[15] Fenton v The State of Western Australia [2015] WASCA 255 [18]; The State of Western Australia v Thompson [2014] WASCA 108 [36].
[16] The State of Western Australia v Johnson [2010] WASCA 187 [23] ‑ [25]; The State of Western Australia v Baldini [2015] WASCA 39 [23] ‑ [26].
[17] Fenton [18].
However, as the decision in Thompson illustrates, in exceptional circumstances the imposition of a suspended term of imprisonment may be open when possession of a relatively small amount of methamphetamine without any intention to sell or obtain a reward combines with other mitigating factors. In Thompson, the offender was in possession of 4.34 g of methamphetamine, which he was using to cope with the adverse side effects of chemotherapy, and which he had ceased using since being charged. Thompson was sentenced on the basis that he did not intend to sell the drug but would have supplied a small part, without reward, to another. This court set aside a fine imposed by the primary judge, but substituted a term of imprisonment of 18 months', suspended for 12 months.
Further, where the court concludes that an immediate term of imprisonment is the only appropriate sentencing option, the lack of commerciality may, with other relevant sentencing considerations, be reflected in the length of the term of imprisonment.[18]
[18] Fenton [20].
The above discussion should not be taken to suggest any particular outcome on the appellant's resentencing. The point for present purposes is that findings about the disputed facts could have a significant impact on the exercise of the court's sentencing discretion. As such, the Chief Magistrate was required to resolve those factual issues before proceeding to determine the appellant's sentence.
The Magistrates Court never properly resolved the disputed question of whether the appellant was engaged in commercial drug dealing, either when Magistrate Campione pronounced the indicated sentence or when the Chief Magistrate sentenced the appellant. Rather than determining the factual basis on which the appellant was to be sentenced, the Chief Magistrate asked whether there were sufficient grounds to depart from the indicated sentence. That error in sentencing approach gave rise to a miscarriage of justice which this court can correct on appeal. Ground 6 has been made out.
Disposition of the appeal
Ground 6 having been made out, the question arises as to what this court should do. Section 14(1)(d), read with s 18, of the Appeals Act gives the court the power to substitute a decision that should have been made by the summary court. However, in the circumstances of the present case, this court is not in a position to substitute the sentence that should have been imposed because the facts on which the court would exercise that discretion have not been found or admitted. It is clear from the parties' submissions to this court that the relevant facts remain in dispute. It is not appropriate for this court to conduct a trial of the issues to resolve these factual disputes. In those circumstances, the appropriate course is to exercise the power under s 14(1)(e) of the Appeals Act and order that the sentencing of the appellant be dealt with again by the Magistrates Court constituted by a different magistrate, so that the Magistrates Court can make the relevant factual findings.
Given the success of ground 6, and that fact that the sentencing of the appellant is to be remitted to the Magistrates Court, it is unnecessary to determine the other grounds of appeal.
Applications in the appeal
At the hearing of the appeal, the appellant sought to adjourn the hearing, on the ground that he was now seeking to appeal against his conviction. I refused that application, as I was not satisfied that the existence of an appeal against conviction prevented the court from properly dealing with the separate issues raised by the sentencing appeal.
The applicant also filed two applications to adduce additional evidence in the appeal, on 20 December 2016 and 17 January 2017. The proposed additional evidence does not inform the disposition of ground 6 of the appeal. In circumstances where this court is not going to re-sentence the appellant, the additional evidence should not be received.
Orders
The following orders should be made in this appeal:
1.The appellant's applications to adduce additional evidence in the appeal filed on 20 December 2016 and 17 January 2017 are refused.
2.Leave to appeal is granted on ground 6.
3.The appeal is allowed.
4.Order 3 made on 18 November 2016 by the Supreme Court of Western Australia in matter SJA 1058 of 2016, dismissing the appellant's appeal to the General Division of the Supreme Court, is set aside and the following orders are substituted:
(a)the sentence of imprisonment for 1 year with eligibility for parole, imposed on 20 June 2016 by the Magistrates Court of Western Australia in matter FR 7407 of 2015, is set aside; and
(b)the sentencing of the appellant be dealt with again by the Magistrates Court constituted by a different magistrate.
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