Waters v Wigger
[2016] WASC 377
•18/11/16
WATERS -v- WIGGER [2016] WASC 377
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 377 | |
| Case No: | SJA:1058/2016 | 11 NOVEMBER 2016 | |
| Coram: | KENNETH MARTIN J | 18/11/16 | |
| 34 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time to appeal allowed Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CRAIG ANTHONY WATERS FRANCIS WIGGER |
Catchwords: | Criminal law Appeal against sentence Possession of 3.99 g of amphetamine with intent to sell or supply Whether sentence of 12 months' immediate imprisonment was manifestly excessive Option of suspended sentence Whether failure to take account of chronic medical condition |
Legislation: | Misuse of Drugs Act 1981 (WA), s 6(1)(a) |
Case References: | Apkarian v The State of Western Australia [2015] WASCA 67 Baron v Walsh [2014] WASCA 124 Cartwright v The State of Western Australia [2010] WASCA 4 Collins v The State of Western Australia [2007] WASCA 108 Colwell v The State of Western Australia [No 2] [2012] WASCA 196 Crichton v The State of Western Australia [No 2] [2014] WASCA 37 De Faria v The State of Western Australia [2013] WASCA 116 Dimanopoulos v The State of Western Australia [2011] WASCA 62 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Fenton v The State of Western Australia [2015] WASCA 255 Fogg v The State of Western Australia [2011] WASCA 11 Gulyas v The State of Western Australia [2007] WASCA 263 HNA v The State of Western Australia [2016] WASCA 165 Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260 House v The King (1936) 55 CLR 499 Howlett v Hesp [2012] WASC 351 Kelly v The State of Western Australia [2011] WASCA 273 Kere Kere v The State of Western Australia [2016] WASCA 189 Krijestorac v The State of Western Australia [2010] WASCA 35 Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442 Maric v The State of Western Australia [2015] WASCA 190 Milenkovski v The State of Western Australia [2014] WASCA 48 Mitchell v Purvis [2016] WASC 351 Morcom v The State of Western Australia [2013] WASCA 31 Ness v The State of Western Australia [No 2] [2013] WASCA 56 Nevermann v The Queen (1989) 43 A Crim R 347 Perejmibida v Skelcher [2002] WASCA 2 R v Vachalec [1981] 1 NSWLR 351 Ramsay v Trovarello [2009] WASC 146 Riley v Smirk [2011] WASCA 200 Rubin v The State of Western Australia [2016] WASCA 2 Russell v The State of Western Australia [No 2] [2010] WASCA 159 Smith v The State of Western Australia [2010] WASCA 176 Sumption v Gaunt [2013] WASC 258 The State of Western Australia v Atherton [2009] WASCA 148 The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397 The State of Western Australia v Baldini [2015] WASCA 39 The State of Western Australia v Berlingeri [2011] WASCA 242 The State of Western Australia v Johnson [2010] WASCA 187 The State of Western Australia v Khasay [2014] WASCA 58 The State of Western Australia v McCarthy [2014] WASCA 210 The State of Western Australia v O'Brien [2007] WASC 292 The State of Western Australia v Thompson [2014] WASCA 108 Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385 Trinh v The Queen [2013] WASCA 258 Trompler v The State of Western Australia [2008] WASCA 265 Truslove v The State of Western Australia [2015] WASCA 1 Vagh v The State of Western Australia [2007] WASCA 17 Wheeler v The Queen [No 2] [2010] WASCA 105 Wiltshire v Mafi [2010] WASCA 111 Yiu v The State of Western Australia [2016] WASCA 172 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
FRANCIS WIGGER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : CHIEF MAGISTRATE HEATH
File No : FR 7407 of 2015
Catchwords:
Criminal law - Appeal against sentence - Possession of 3.99 g of amphetamine with intent to sell or supply - Whether sentence of 12 months' immediate imprisonment was manifestly excessive - Option of suspended sentence - Whether failure to take account of chronic medical condition
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a)
Result:
Extension of time to appeal allowed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr G W Massey
Respondent : Mr L M Fox
Solicitors:
Appellant : Holborn Lenhoff Massey
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Apkarian v The State of Western Australia [2015] WASCA 67
Baron v Walsh [2014] WASCA 124
Cartwright v The State of Western Australia [2010] WASCA 4
Collins v The State of Western Australia [2007] WASCA 108
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
Crichton v The State of Western Australia [No 2] [2014] WASCA 37
De Faria v The State of Western Australia [2013] WASCA 116
Dimanopoulos v The State of Western Australia [2011] WASCA 62
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fenton v The State of Western Australia [2015] WASCA 255
Fogg v The State of Western Australia [2011] WASCA 11
Gulyas v The State of Western Australia [2007] WASCA 263
HNA v The State of Western Australia [2016] WASCA 165
Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260
House v The King (1936) 55 CLR 499
Howlett v Hesp [2012] WASC 351
Kelly v The State of Western Australia [2011] WASCA 273
Kere Kere v The State of Western Australia [2016] WASCA 189
Krijestorac v The State of Western Australia [2010] WASCA 35
Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442
Maric v The State of Western Australia [2015] WASCA 190
Milenkovski v The State of Western Australia [2014] WASCA 48
Mitchell v Purvis [2016] WASC 351
Morcom v The State of Western Australia [2013] WASCA 31
Ness v The State of Western Australia [No 2] [2013] WASCA 56
Nevermann v The Queen (1989) 43 A Crim R 347
Perejmibida v Skelcher [2002] WASCA 2
R v Vachalec [1981] 1 NSWLR 351
Ramsay v Trovarello [2009] WASC 146
Riley v Smirk [2011] WASCA 200
Rubin v The State of Western Australia [2016] WASCA 2
Russell v The State of Western Australia [No 2] [2010] WASCA 159
Smith v The State of Western Australia [2010] WASCA 176
Sumption v Gaunt [2013] WASC 258
The State of Western Australia v Atherton [2009] WASCA 148
The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397
The State of Western Australia v Baldini [2015] WASCA 39
The State of Western Australia v Berlingeri [2011] WASCA 242
The State of Western Australia v Johnson [2010] WASCA 187
The State of Western Australia v Khasay [2014] WASCA 58
The State of Western Australia v McCarthy [2014] WASCA 210
The State of Western Australia v O'Brien [2007] WASC 292
The State of Western Australia v Thompson [2014] WASCA 108
Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385
Trinh v The Queen [2013] WASCA 258
Trompler v The State of Western Australia [2008] WASCA 265
Truslove v The State of Western Australia [2015] WASCA 1
Vagh v The State of Western Australia [2007] WASCA 17
Wheeler v The Queen [No 2] [2010] WASCA 105
Wiltshire v Mafi [2010] WASCA 111
Yiu v The State of Western Australia [2016] WASCA 172
- KENNETH MARTIN J:
Background
1 On 20 June 2016, Craig Anthony Waters, the appellant, appeared in the Perth Magistrates Court where he was sentenced on his plea of guilty to 12 month's immediate imprisonment for the offence of possession of a prohibited drug (namely amphetamine) with intent to sell or supply to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA). He was made eligible for parole.
2 The date of the offence for which Mr Waters was convicted on his plea of guilty was 27 June 2015. Following initial appearances in the Magistrates Court, Mr Waters was referred to the Drug Court, where a plea of guilty was formally entered on 9 November 2015. As a participant in a Drug Court program, Mr Waters was given an 'indicated sentence' of 12 months' immediate imprisonment by Magistrate Campione.1 A pre-sentence order (PSO) of 12 months' duration was imposed on him on 18 March 2016. The appellant's participation in the Drug Court was ultimately terminated in May 2016.
3 The appellant now seeks leave to appeal against the sentence of 12 months' immediate imprisonment imposed on 20 June 2016 by Chief Magistrate Heath. As his appeal notice was not filed until 9 August 2016, the appellant also requires leave to appeal out of time.2 The appellant filed an affidavit, sworn 4 August 2016, with his appeal notice, indicating the circumstances relating to the delay in the commencing of the appeal. I would extend time for the present application for leave to appeal to be heard, as it now has.
4 On 18 August 2016, the appellant was granted bail pending the hearing of the appeal.
5 Mr Waters' original appeal notice, filed 9 August 2016, contained only one ground of appeal, which contended that his sentence was 'manifestly excessive'. Subsequently, on 31 October 2016 the appellant filed an application for an order to amend the grounds of appeal, substituting the following grounds:
1. Ground 1 - The learned Chief Magistrate erred in law by failing to take into account, or failing to adequately take into account, the Appellant's medical conditions.
2. Ground 2 - The learned Chief Magistrate erred in law by failing to take into account, or failing to adequately take into account, the circumstances in which the Appellant's participation in the Drug Court was terminated.
3. Ground 3 - The learned Chief Magistrate erred in law by imposing a sentence that was in all the circumstances manifestly excessive.
6 Then, on 10 November 2016, the appellant filed a further application, supported by an affidavit sworn 9 November 2016, to add a further ground of appeal, in terms:
4. Ground 4 - The learned sentencing Chief Magistrate was led into error by, or a miscarriage of justice was occasioned by, inadequate information provided to his Honour at sentencing about the reason that the Appellant's participation in the Drug Court Program was terminated, such that a different sentence should have been imposed.
7 The newly advanced ground 4, it may be seen, is made to be pursuant to s 8(1)(b) of the Criminal Appeals Act 2004 (WA), which provides that an appeal of a decision of a court of summary jurisdiction may be made to a single judge of the General Division under pt 2 of the Act, on a basis that there has been a 'miscarriage of justice'.
Materials for the appeal
8 For the purposes of the appeal, I have a copy of the transcript of proceedings for the sentencing on 20 June 2016. The appellant also filed a copy of the transcript for proceedings before Magistrate Campione in the Drug Court on 20 May 2016. In that May hearing, Magistrate Campione dealt with the suspension and termination of the appellant's participation in the Drug Court, and made some brief comments regarding the indicated sentence given to the appellant.
9 I also hold the written submissions from the appellant (filed 28 October 2016) and of the respondent (filed 4 November 2016).
10 As regards affidavit materials, there is the appellant's affidavit sworn 4 August 2016, for the purposes of his seeking an extension of time in which to appeal. The appellant also asks for leave to rely, for the purposes of the appeal, on his two further affidavits. The first, sworn on 12 August 2016, was filed to support his application for bail. His last affidavit, sworn 8 November 2016, was filed on 10 November 2016.
11 Ultimately, after receiving the parties' written submissions and then hearing further verbal submissions from counsel at the appeal hearing, I have received all three of Mr Waters' affidavits, with the exception of redactions to portions of pars 18 and 19 of the appellant's affidavit sworn 12 August 2016.
12 The Perth Magistrates Court has communicated to this court that there were no exhibits relating to the sentencing of the appellant on 20 June 2016.
The facts
13 I will relate material facts which were stated by the prosecutor at the sentencing hearing on 20 June 2016.3
14 On 27 June 2015, the appellant drove a vehicle on a road in Murdoch and police spoke to him there, in relation to another matter. The appellant was the sole occupant of the vehicle. While speaking to the appellant, the police officers observed that he was holding two fake vehicle registration plates. The officers noted that the vehicle, of which the appellant was the registered owner, had been fitted with electronic number plate switchers - on both its front and rear. The number plate switcher device was fully operational. The car was fitted with fake registration plates. Police officers were able to operate the switching device by pressing a button situated near the vehicle's steering wheel.
15 A search of the vehicle located a second number plate switcher inside a locked toolbox. The appellant claimed ownership of the toolbox.
16 While searching the vehicle, police also located a taser, in the shape of an iPhone, which was on the driver's seat next to the appellant's wallet. The appellant said that it was a broken iPhone. However, police were able to operate the taser and to cause it to spark.
17 The attending police officers searched the appellant's person and, while searching, located a small plastic container in the accused's underwear. The plastic container was seized. It contained four clip seal bags, three with a crystal substance inside. Each of the three bags tested positive to amphetamines. The bags respectively contained approximately 2.77 g, 0.42 g and 0.89 g. The total (overall) amount was 3.99 g.
18 A search of the appellant's wallet located $920 in cash, which he could not account for.
19 While searching the appellant's vehicle, the police also located a mobile phone which the appellant identified as belonging to him. Police downloaded the phone. They located numerous messages, both incoming and outgoing. The prosecutor stated that the messages related to the appellant's involvement in the sell and supply of drugs.4
20 However, at the start of the appellant's submissions, counsel for the appellant submitted that the appellant denied that messages of that kind were on his phone. Counsel said further that: 'I've asked [the appellant] … 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 for some, he would have shared it'.5
21 At his sentencing on 20 June 2016, the appellant was sentenced on a total of six charges, being prosecution notices FR 7407 (the s 6(1)(a) MDA offence), 7408, 7409, 8145, 8145 and 8147 of 2015. The latter five charges were dealt with by with nominal fines ($500 for each matter) and by formal orders for destruction.
The personal circumstances of the offender
22 The appellant was 35 years old at the time of his sentencing. After completing schooling, the appellant worked for a storage tanks company and then, for a nine year period, on railways at the Kewdale Freight Terminal.
23 The appellant badly injured his hand (wrist) in 2007. That was followed by multiple surgeries in 2011 and 2012. As a consequence of the injury and surgeries, the appellant suffers from complex regional pain syndrome, which causes him significant pain in his arm.
24 At his sentencing hearing on 20 June 2016, it was submitted on behalf of the appellant that because the appellant could not find anything to sufficiently alleviate his arm pain, he started using methylamphetamine at the end of 2012. It was also submitted that, while the appellant found that illicit drug use eased the pain in his arm, it was not long before he became addicted to the drug. It was said that the appellant then used methylamphetamine for a period of about two years before he was charged with the 27 June 2015 offence and that, at the height of his use, the appellant smoked about half a gram of methylamphetamine a day.
Participation in the Drug Court
25 Following his indicated plea of guilty to the s 6(1)(a) MDA charge on 27 October 2015, the appellant was referred to the Drug Court, with his first appearance in that speciality court being on 2 November 2015. His guilty plea was formally entered on 9 November 2015.
26 After a period of assessment, a PSO of 12 months' duration was imposed upon the appellant on 18 March 2016, with programming and supervision requirements. In accord with the practice of the Drug Court, the appellant was given an indicated sentence of 12 months' immediate imprisonment at that time. The effect of the PSO was that sentencing of the appellant was to be adjourned for a period of one year.
27 However, the appellant's participation in the Drug Court came to be suspended on 6 May 2016. The appellant had then appeared before Magistrate Campione on 20 May 2016.
28 At the 20 May 2016 hearing, Magistrate Campione indicated her decision to terminate the appellant's participation in the Drug Court. Her Honour then recused herself from personally sentencing the appellant (so that he would not feel that he had been 'prejudiced' in any way6) and adjourned his sentencing into the general list for sentence on 20 June 2016 before Chief Magistrate Heath in the Magistrates Court.
29 As to the circumstances that led to suspension of the appellant's participation in the Drug Court, at his sentencing the appellant's counsel had submitted:
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… – 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.7
30 That statement by counsel is, with respect, unduly vague and unhelpful.
31 The true circumstances of the termination of the appellant's participation in the Drug Court program have for some reason assumed a significance in this appeal. I have been provided with the transcript of proceedings for the Drug Court hearing on 20 May 2016 (but not for any earlier Drug Court hearing). However, as I will discuss further, it looks to be accepted that the Chief Magistrate would not have had a copy of this transcript available to him at sentencing, as written transcripts of proceedings in the Drug Court are not generally produced and kept with the court file.
32 To the extent that it is relevant to the determination of this appeal, my reading of the observations by Magistrate Campione on 20 May 2016 is to the effect that her Honour terminated the appellant's participation in the Drug Court on the basis that she was not sure that the appellant was the 'right fit' for Drug Court. This was because of his pain management issues and other complexities that the appellant then presented with, as well as circumstances in which the appellant had accumulated significant breach points for his non-attendance at required appointments relating to his Drug Court program.8 Her Honour had also noted a 'dirty' urinalysis for the appellant on 16 May 2016, including for 'meth', with the effect that this urinalysis result meant that the appellant would, in any event, be facing a 'custody sanction'. I take the latter term to refer to the brief (7 days) period in custody that is applied if a participant accumulates a certain number of breach points whilst managed in a Drug Court program.9
Background: the Drug Court of Western Australia
33 The Perth Drug Court first convened in December 2000. In Perejmibida v Skelcher - which presents as perhaps the first appeal to this court arising in some way out of proceedings before the Drug Court - Roberts-Smith J observed:
I pause to interpolate here that the Drug Court has no specific legislative basis nor jurisdiction. It is a Court of Petty Sessions presided over by a Stipendiary Magistrate. The designation of the court as the 'Drug Court' is merely administrative, as is the regime by which it operates.10
34 Since then, of course, the Magistrates Court of Western Australia has been established. The Sentencing Act 1995 (WA) has also evolved in ways that are relevant to the Drug Court, notably in relation to sentencing options now available under pt 3A (pre-sentence orders)11 and pt 12 (conditional suspended imprisonment) of that Act. The Drug Court is also now recognised as a 'speciality court' for the purposes of the Sentencing Act.12
35 Nonetheless, it remains the case that much of the practice and procedure of the Drug Court lacks an explicit statutory basis and, instead, has been adopted administratively over time. The general practice and procedure of the Drug Court is found set out in a document, published in 2013 by the Department of the Attorney General, entitled Perth Drug Court Guidelines (Drug Court Guidelines). Counsel for the respondent, upon the filing of written submissions, provided a copy of that document and the appellant did not object to the court having reference to it for this appeal.
36 I will mention here one aspect of the procedures of the Drug Court as described in that Guidelines document, namely the practice of giving an 'indicated sentence' to a participant in the Drug Court program.13 The Drug Court Guidelines define an indicated sentence as 'what a participant would normally receive as a penalty if there was no Perth Drug Court and the participant had not participated in any program'.14 Later in the document, it is said:
Where a participant is recommended as suitable for a Perth Drug Court program and the participant accepts being placed onto the program, the participant will be given an indicated sentence. An indicated sentence is what an offender would normally receive if there was no Perth Drug Court in place. This does not apply to those who are placed on a STIR [Supervised Treatment Intervention Regime] program, or those facing indictable charges.15
37 An indicated sentence in the Drug Court has no statutory basis – it is essentially a convenient administrative procedure adopted by the Drug Court to place a participant on notice of a potential sentencing outcome which their successful participation in the Drug Court program may be able to alleviate or mitigate.
Sentencing submissions
38 Prosecution counsel did not make submissions at the sentencing on 20 June 2016, beyond stating the material facts relating to the offence.
39 It appears that the appellant's counsel provided some written materials to the court at sentencing. While making his submissions to the Chief Magistrate about the personal circumstances of the appellant, counsel for the appellant had stated:
Unfortunately, and sadly, sir, and the letters that I've provided to you reflect this, [the appellant] injured his – well (indistinct) got an injury in his arm, but he injured his hand in 2007, and he broke that and surgery followed in 2011, followed by a further surgery in 2012.16 (my emphasis)
40 Later in his sentencing submissions, the appellant's counsel also refers to 'a reference in there from his employer'.17
41 The sentencing remarks by the Chief Magistrate do not make any explicit reference to any written materials handed up by the appellant's counsel at sentencing.
42 Counsel for the appellant at his sentencing, Mr Williams, had described the appellant's childhood and employment history, as well as the history of his hand injury and subsequent surgeries, as outlined in the appellant's personal circumstances recounted above.
43 As regards the medical conditions of the appellant, counsel had submitted:
And what resulted [from the injury and surgeries] was his complex regional pain syndrome, which I understand is extremely painful. It's a pain that streaks from one end of his – from the beginning of his arm right up to the end. And it causes him to have jolts on odd occasions in the arm when – during the day. Ultimately, it causes him significant pain and it led to severe – it led to depression. He couldn't really find anything that would alleviate the pain.
But he was introduced to methamphetamine…and he found that it eased the pain in his arm and alleviated all those symptoms. And it wasn't long before he became addicted to the drug.18
Mr Williams continued to submit, after his oblique explanation of the appellant's participation in the Drug Court which I have earlier mentioned:
- Your Honour, what I can say, though, is that [the appellant] hasn't used drugs for, he tells me, at least four months now. He has found a job, and there's a reference in there from his employer which outlines the kind of employee he is. It speaks very highly of him. He is still undergoing psychological assistance in relation to his drug – both his drug use and his – and other issues, as well. And I would submit that he is on a path to rehabilitation and recovery, and I would respectfully submit, sir, that in those circumstances your Honour could quite properly consider imposing an intensive supervision order to ensure that he stays on track…with urinalysis tests and constant counselling, to ensure from the court's perspective that he's not going to come back again here.19
44 The sentencing magistrate queried as to when the appellant had said that he was drug-free. There ensued a somewhat confused exchange as to when the appellant had returned a positive urinalysis whilst participating in the Drug Court program, with the submission ultimately being made by his counsel, on instructions, that the appellant had indeed used drugs at one time in a four-month period, but that his use was significantly on the decline.
45 Counsel for the appellant also submitted that a suspended imprisonment order would be appropriate. He noted a 'disastrous effect that would result of [the appellant] being imprisoned immediately'.
46 It was also submitted, on instructions, that the taser which had been found was a '3 volt kid's toy', purchased on the internet.
Sentencing remarks
47 The learned Chief Magistrate's sentencing remarks are relatively brief. They can be quoted in full:
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 Mr Williams 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.
[Note: Counsel for the appellant makes the taser submission here.]
… 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. Your remaining matters will be dealt with by way of fine given the imprisonment on the possession with intent.20
Ground of appeal 1
48 Ground 1 alleges error in terms of either a failure to take the appellant's medical conditions into account, or a failure to properly take those conditions into account.
49 As regards the latter contention, a complaint that a sentencing court failed to adequately take into account a factor does not typically give rise to an appealable error, as it is in substance a challenge founded upon the weight given to that factor.21 A failure to give adequate weight to a relevant sentencing consideration only gives rise to an appealable error if it amounts to a failure to exercise the discretion actually entrusted to the court.22 In the absence of a failure to exercise the discretion, a weighting error is not an independent ground which itself justifies appellate intervention. Rather, it is a conclusion that is implicit in, and flows from, a finding that a sentence is manifestly excessive.23
50 At base, the appellant's written submissions in relation to ground 1 submit that the appellant's medical conditions - principally the complex regional pain syndrome that he suffers from with his arm and his resulting depression - were a relevant sentencing consideration. However, there are at least three different manifestations of possible relevance that emerge from the appellant's written submissions and the further oral submissions by counsel, namely that the appellant's medical conditions:
(1) present an additional hardship that the appellant would suffer if a sentence of immediate imprisonment was imposed on him (or that those considerations are a circumstance of ill health that might possibly be aggravated by imprisonment);
(2) constituted an integral aspect of the circumstances that Magistrate Campione took into account in deciding to terminate the appellant's participation in the Drug Court; and
(3) explain, to some extent, the appellant's offending, in terms of the appellant seeking to 'self-medicate' for the pain he experienced from the complex regional pain syndrome.
51 The respondent's written submissions deal with ground 1 on a basis that ground 1 asserts a failure on the part of the sentencing magistrate to take into account the appellant's medical condition in considering the circumstances of the termination of the appellant's participation in the Drug Court.
52 At the hearing of the appeal, it also became apparent that the appellant asserts, in effect, that the understanding (or 'appreciation') of the appellant's medical conditions ultimately obtained by the Drug Court (as encapsulated in the remarks of Magistrate Campione in the Drug Court proceedings on 20 May 2016) was a consideration relevant to the sentencing of the appellant which the Chief Magistrate either was not made aware of, or failed to take into account. I deal with this particular issue in the context of my consideration of ground 2 and proposed ground 4 in a later section of these reasons.
53 In this section of these reasons, I deal under ground 1 with the issues of the appellant's medical conditions representing a relevant personal circumstance for sentencing, either as an additional hardship or as a factor that might in some way explain the appellant's offending.
54 As a general principle, a sentencing court may have regard to personal circumstances of an offender which would make imprisonment more arduous for that particular offender than is normal.24 In Gulyas v The State of Western Australia, Steytler P (McLure & Miller JAA agreeing) referred to comments in R v Vachalec, where Street CJ observed:
It is obvious that imprisonment will always impose physical and emotional hardships and deprivation upon the person imprisoned. But there can be cases where that hardship and deprivation would be particularly aggravated by matters subjective to the prisoner and this is a proper consideration to be taken into account by a sentencing judge.25
55 It is also uncontroversial, as a matter of general principle, that medical conditions, whether relating to physical26 or mental27 illnesses (or impairments or disabilities), may be relevant to sentencing. In Milenkovski v The State of Western Australia, Buss JA said:
It is well-established that a sentencing judge, in determining the sentencing outcome in a particular case, must take into account, amongst other things, any subjective circumstances of an offender (as distinct from the prison conditions in which the offender is held) that may make imprisonment a materially harsher experience for him or her than for offenders generally. These subjective circumstances include, for example, advanced age, physical or mental ill health or disabilities, and a lack of fluency in the English language.28
56 However, it also necessary to bear in mind some further comments by the Court of Appeal in Gulyas at [36]:
Illness may be a mitigating factor where it cannot be treated effectively in prison or where it is of a nature that will result in imprisonment being more onerous for the offender than in the ordinary case. However, it is important to bear in mind what King CJ said in R v Smith(1987) 44 SASR 587, 589 (Cox and O'Loughlin JJ agreeing):
'The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.'
58 It is also to be noted that matters relating to the security and health of prisoners are the responsibility of the Chief Executive Officer of the Department of Corrections.30 In Smith v The State of Western Australia, Buss JA reviewed various provisions of the Prisons Act 1981 (WA) and the Prisons Regulations 1982 (WA) in relation to the provision of medical treatment for prisoners.31
59 The last element of asserted potential relevance, that the appellant's medical conditions might explain his offending in a substantive way, presents little merit. In essence, the submission is that the appellant's medical conditions are a relevant and substantial mitigating factor, in a sense of decreasing his culpability for the offence or the extent to which he ought to be punished. Even accepting, for the moment, that chronic arm pain experienced by appellant might somehow have been alleviated by use of illicit drugs such as amphetamine or methylamphetamine, the objective circumstances of the appellant's offending remain serious. This was not a relatively minor drug possession offence in which the appellant had on his person a small amount of illicit drugs. Rather, it was an offence involving a quantity of illicit drugs sufficient to meet the statutory presumption under s 11(a) of the MDA as to an intent to sell or supply to another, as well as involving circumstances pertaining to the appellant that could only be said to be directed, in some way, to a distribution by him of illicit drugs in the general community (ie, matters going beyond his mere personal consumption of illegal drugs).
The evidence and material before the primary court – appellant's medical conditions
60 In assessing the merits of the ground 1, as well as the appellant's other proposed grounds of appeal, regard must be had to the evidence and material relating to the appellant's medical conditions that were before the court at the time of his sentencing.32 An appeal court may ascertain what evidence and material were before the lower court in any way it considers sufficient.33 However, the observations of McLure P in Baron v Walsh are relevant to the undertaking of such an inquiry by an appeal court.34
61 Here, the evidence and materials before the Chief Magistrate could have been brought before the court via oral submissions by counsel at the sentencing hearing or via relevant documentary material, either contained in the court file or handed up at sentencing.
62 As regards sentencing submissions, counsel for the appellant made reference to the appellant's complex regional pain syndrome within his arm and to the resulting depression. However, those submissions were put in relation to the circumstances of the appellant's use of, and addiction to, methylamphetamine. Further, the submissions as to sentence, proposing that an intensive supervision order, or a suspended imprisonment order, could be imposed, were also made in a context of an asserted decline in the appellant's level of illicit drug use and of his prospects for rehabilitation and future compliance with any programming requirements that might be imposed. Notably, counsel for the appellant made no clear submission as to the appellant's medical conditions representing a relevant sentencing consideration that might support either a reduction in the length of any sentence of immediate imprisonment or (possibly) the imposition of a type of sentence other than that of immediate imprisonment.
63 As regards documentary materials, by his affidavit sworn 9 November 2016, the appellant states at par 2 that he had provided 'medical letters and other documentation' to the court prior to his appearances in the Drug Court on 20 May 2016 and in the Magistrate's Court at sentencing on 20 June 2016. The appellant then states, at par 5 of that affidavit, that he had retained copies of all the documents that he had provided to the court and that he attached to his affidavit 'copies of the documents which were provided to the Perth Drug Court and the Magistrates Court of Western Australia' (being attachments 'CAW1' to 'CAW7' to that affidavit). However, the appellant then states at par 13 of his affidavit that, to the best of his recollection, knowledge and belief, 'all of the documents attached to this affidavit were provided to the Perth Drug Court or the Magistrates Court prior to my sentencing on 20 June 2016' (my emphasis).
64 At the hearing of the appeal, counsel for the appellant, when queried as to the apparent inconsistency between par 5 and par 13 of the appellant's affidavit sworn 9 November 2016, indicated that it was the appellant's case that the documents had been provided to both courts and, thus, that all of the documents had also been handed up at sentencing on 20 June 2016.35
65 Counsel for the respondent did not object to the admissibility of the affidavit sworn 9 November 2016. But he submitted that there was a 'lack of precision as to which material was before the Drug Court magistrate, as opposed to the material that was before the Chief Magistrate at sentencing'.36 Counsel for the respondent ultimately submitted, in effect, that the sentencing court would have had all of the documents found annexed to the appellant's affidavit (ie attachments 'CAW1' to 'CAW7') before it, by reason of those documents either being part of the contents of the appellant's Drug Court file or by their being handed up by counsel at sentencing.37
66 Notably, it was accepted by the parties that the Chief Magistrate would not have had a copy of the transcript of proceedings of the hearing before Magistrate Campione in the Drug Court on 20 May 2016, on the basis that such written transcripts are not routinely generated and kept on file.38
67 The seven documents that the appellant attached to his affidavit sworn 9 November 2016 were as follows:
(1) a copy of a medical certificate from Dr Rajat Dewan of the Willeton Medical Centre dated 18 May 2016 stating that the appellant was 'unfit for urinalysis' on 18 May 2016;
(2) a brief letter from Dr Joseph Fung of the Willeton Medical Centre dated 17 May 2016 stating:
This is to certify that Mr Craig Waters has right upper limb complex regional pain syndrome due to injury to his right wrist in 2012.
Attached article about complex regional pain syndrome for your information.
(3) a brief letter from Dr Joseph Fung of the Willeton Medical Centre dated 10 May 2016 stating:
This is to certify that I have seen Mr Craig Waters on May 4th, 2016 with severe depression and suicidal ideation. I have added treatment for him on the above date. He told me he had missed his counselling session with Next Step Thornlie on the May 5th due to his mood issue.
Past Medical History:
2012 Complex regional pain syndrome
SCGH pain clinic
- 5 separate operations
…
2012 Anxiety depression
The letter then listed three medications prescribed to the appellant.
(4) a brief letter from Dr Joseph Fung of the Willeton Medical Centre dated 15 February 2016 stating:
I have seen Craig today. He missed his urine test today due to exacerbation of migraine headache and deterioration of anxiety.
(5) a three-page document entitled 'GP Mental Health Care Plan', signed by the appellant and by Dr Fung on 15 December 2015, that presents as having been prepared by Dr Fung for the purpose of a referral to a mental health specialist;
(6) a letter from Dr W Bruce Conolly, AM, (inter alia, an Associate Professor of Hand Surgery at UNSW) dated 19 January 2015, stating:
Further to my report of January 13th, 2015, at the request of Craig Waters I comment on his prognosis.
When Craig Waters saw me on October 20th, 2014 he had persisting pain in his right wrist and arm with severe weakness of grip and grasp. He has clinical features of a right superficial radial neuritis and a residual ulnar neuritis at the elbow.
His symptoms have not changed over the last six months or more.
I find it very difficult to advise on further management. Craig Waters' problem is really severe and very complicated and I think it would be bext if he had an update examination and assessment by a most experienced Hand and Upper Limb surgeon in Perth. I will make enquiries and advise you on this matter.
(7) and finally, a three-page medical document dated 22 July 2014 and presenting as a document prepared in relation to the appellant by Dr Adeline Fong from the Department of Pain Management at Sir Charles Gairdner Hospital.
68 I will accept, given the positions of the parties as stated at the hearing of the appeal, that those seven documents were before the Magistrates Court at the sentencing on 20 June 2016, either as part of the contents of the Drug Court file or as documents handed up to the Chief Magistrate on the day.
69 As regards those seven documents, none presents as a recently prepared, detailed medical report, written by a GP or by a specialist, that sets out the precise nature of the appellant's particular medical and psychological conditions, and then also indicates how those conditions might relevantly impact upon the appellant's ability to comply with programming and supervision requirements that might be imposed on him or, further, how those conditions might make a term of imprisonment materially more arduous for the appellant than for a normal prisoner (or how a term of imprisonment might relevantly aggravate those conditions).
70 An absence, in terms of the materials before the court at sentencing on 20 June 2016, of a recent medical document of that kind is relevant in the context of this appeal. This is because the appellant asserts that an error of law or a miscarriage of justice occurred by virtue of the sentencing magistrate failing, in some way, to take into account his medical conditions. Notably, however, that assertion is in circumstances where the Drug Court had effectively put the appellant on notice in the hearing on 20 May 2016 as to the potential relevance, for sentencing purposes, of up-to-date and comprehensive information about his medical conditions as provided by a medical practitioner. On three separate occasions in the course of her remarks on 20 May 2016, Magistrate Campione indicated to the appellant that he should get a report from his GP about his medical conditions.39 Indeed, her Honour states at one point: 'So maybe if you could encourage your doctor to write a report just setting it all out so that the [sentencing] magistrate can read that and you know, hit the ground running with how that's mitigatory and how that impacts on your overall sentence'.40 However, despite those repeated suggestions from the Drug Court magistrate and the ample opportunity provided by an adjournment of sentencing for one month, it appears that the appellant did not provide the sentencing court with any such up-to-date medical report.
Ground of appeal 1 (hardship) - conclusion
71 I have already indicated earlier in these reasons that there was little substance to the submission that the appellant's medical conditions relevantly explained his offending, in terms of those conditions presenting as a mitigating factor that might decrease his culpability for the offence or decrease the extent to which he should be punished.
72 As regards the medical conditions of the appellant constituting a relevant hardship that a sentencing court could take into account as a mitigating factor, I will make the following observations.
73 First, it was open to the appellant to make a clear application in the context of this appeal to adduce additional evidence as to his medical conditions. While the appellant did seek to rely on his own affidavits which contain some factual material relevant to his medical conditions, I must accept the respondent's submission, made in a context relating to the admissibility of the appellant's affidavit sworn 12 August 2012, that such evidence as to the appellant's medical condition needed to come from a person qualified to give an expert medical opinion as to the relevant features of the appellant's medical conditions. But I note that no such application, supported by an up to date medical report prepared by a medical practitioner, was made in this appeal.
74 Second, as regards such an application to adduce additional evidence, I refer to the observations of the Court of Appeal in Colwell,where the Court of Appeal dealt with an appeal against sentence in which the appellant suffered a disabling genetic disorder and made an application to adduce additional evidence as to his medical condition.41 Newnes JA observed (Pullin & Mazza JJA agreeing) at [29]-[32]:
It is accepted that an appellate court is not entitled to intervene upon the basis of events which have occurred since the sentence was imposed. Where a sentence, appropriate when passed, has by reason of subsequent events turned out to be excessive, that is a matter for executive government, not an appellate court: R v Munday[1981] 2 NSWLR 177, 178; R v Vachalec[1981] 1 NSWLR 351, 353 - 354; R v Babic[1998] 2 VR 79, 80 - 81; El-Jaklh v The Queen[2011] NSWCCA 236 [26] - [27]. It is not the function of the court to fulfil a continuing supervisory role over the effect of imprisonment upon an individual: Vachalec (353 - 354); Anderson v The Queen[2010] NSWCCA 130; (2010) 202 A Crim R 68 [45].
Ordinarily, therefore, evidence will not be admitted of events which have occurred since the sentence was imposed. However, evidence of subsequent events may be received to show facts relevant to the sentencing process which were in existence at the time of sentence but either not known to the sentencing judge or not properly appreciated at the time: R v Nguyen[2006] VSCA 184 [36]; Anderson v The Queen [45]; C, TL v Police[2010] SASC 115 [68] - [69]. The additional evidence was sought to be adduced on that basis.
It was submitted on behalf of the appellant that the evidence before the sentencing judge concerning the capacity of the Department to provide appropriate care and treatment for him was in material respects inaccurate or inadequate. It was contended that it was apparent from the additional evidence that the Department does not in fact have the capacity to provide the level of care and treatment expected by the sentencing judge on the basis of the evidence before her, with the result that the appellant's medical condition is deteriorating more rapidly than envisaged and imprisonment is more burdensome on him than expected. Had the true capacity of the Department to provide appropriate care and treatment been before the sentencing judge a different sentence should have been imposed.
It was, however, accepted by counsel for the appellant (correctly in my view) that if the expected care and treatment was within the capacity of the prison authorities to provide, it was not sufficient for the appellant to show that it was not in fact being provided to him (appeal ts 20). That, if it were the case, was an administrative matter to be attended to by the relevant authorities: see Vachalec (354).
75 Third, as regards the information that was communicated to the sentencing court about the appellant's medical conditions, the appellant's counsel did in fact submit to the sentencing magistrate that the appellant had complex regional pain syndrome. Counsel also made reference to the circumstances in which the appellant came to acquire that condition and to the presentation of the condition (eg, the nature of the pain, the related depression). However, nothing was said by counsel about the likelihood of the condition representing a relevant hardship if the appellant was sentenced to a term of immediate imprisonment, or about any particular difficulties that the appellant might experience in custody, in terms of managing the pain associated with the condition or maintaining any on-going treatment of the condition and its presenting symptoms. I would add that nothing in the documents put before the court by the appellant relevantly articulates a greater than usual level of hardship that the appellant might experience in prison, or how his imprisonment might aggravate those conditions. In a context of sentencing in a court of summary jurisdiction, those materials seem to present, viewed objectively and read together, as a bundle of documents relating generally to an attempted explanation for why the appellant might have failed to comply with the programming requirements imposed on him as part of his Drug Court program and PSO. That is consistent with the sentencing magistrate's reference to the 'difficulties' that the appellant encountered whilst managed in the Drug Court.
76 For the reasons given above, I can detect no error of law or miscarriage of justice in the exercise of the sentencing discretion by the learned Chief Magistrate, in terms of an asserted failure to take into account, or failure to adequately take into account, the appellant's medical conditions as a hardship that would make imprisonment relevantly more arduous for the appellant than for normal prisoners.
77 I will deal with the final aspect of the asserted relevance for sentencing of the appellant's medical conditions, which is their relationship to the circumstances of the termination of the appellant's participation in the Drug Court program, after considering ground of appeal 3.
Ground of appeal 3
78 A ground of appeal alleging that a sentence is manifestly excessive asserts that the sentencing court has made an implied error in the exercise of its sentencing discretion.42 The word 'manifestly', an adverb, takes force and significance in an appellate context by means of its modification to the adjective 'excessive' as regards a sentence imposed.
79 In order for a ground of manifest excess to succeed, an appellant must demonstrate that the sentence imposed for the offence is so unreasonable or unjust that the appeal court should conclude that a substantial wrong has occurred. It follows from this that an appeal court would not be able to intervene merely because it might have imposed a different sentence, if had it been the sentencing court.43
80 A sentence may be manifestly excessive because the wrong type of sentence has been imposed.44 There may be cases in which an appellate court can conclude that a failure to suspend the term of imprisonment was an error, on the basis that the sentence would otherwise be manifestly excessive.45 However, such a conclusion can only be drawn from a consideration of all the available facts in the case and does not flow, or does not flow alone, from a failure by the sentencing court to mention particular relevant factors in the sentencing remarks.46
81 To determine whether a sentence is manifestly excessive, the orthodox approach is to examine the sentence imposed from the perspective of the maximum penalty prescribed by law for the offence, the standard of sentences customarily observed with respect to that offence, the place that the criminal conduct occupies in the scale of seriousness of offences of the type, and the personal circumstances of the offender.47
82 The maximum penalty for the offence of possession of amphetamine with intent to sell or supply is 25 years' imprisonment or a fine of $100,000 or both.48 Section 9(1)(a) of the MDA provides that if a person is charged before a court of summary jurisdiction with an offence under s 6(1) in respect of a quantity of a prohibited drug referred to in sch III of the MDA that is less than the quantity specified in that schedule in relation to that prohibited drug then, except in a case where the person is charged with conspiring to commit the offence, the summary conviction penalty for the offence is that set out in s 34(2)(b). Relevantly, the quantity specified for amphetamine by sch III is 4.0 g, which means that the summary conviction penalty for the offence is that set out in s 34(2)(b), which is a fine not exceeding $5,000 or imprisonment not exceeding 4 years or both. The summary conviction penalty merely sets the jurisdictional limit of the Magistrates Court for the purposes of sentencing. It remains relevant for court of summary jurisdiction to consider the statutory maximum penalty in assessing the seriousness of the offence.49
83 The major sentencing considerations for the offence of possession of a prohibited drug with intent to sell or supply are general and personal deterrence.50 As the sentencing magistrate properly observed, there is currently a high level of community concern about the negative societal impacts of the illicit use of amphetamine and methylamphetamine.
84 Other matters to be taken into account in sentencing include the nature and level of the offender's participation in drug dealing and whether the offending was committed solely for commercial gain.51
85 The Court of Appeal of this State has observed, on numerous occasions, that it is established that ordinarily, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for offences against s 6(1) of the MDA, and that the imposition of a suspended term of imprisonment for those offences is, as a matter of fact, exceptional.52 A sentencing disposition of immediate imprisonment appropriately recognises that the gravamen of the offences created by s 6(1) lies in the possession, manufacture, sale, supply or cultivation of illicit drugs which render a profound level of damage to the general community.
86 In Atherton v The State of Western Australia, the Court of Appeal observed that matters personal to an offender will almost always be a very limited consideration for offences of dealing or trafficking in dangerous drugs of addiction.53 Nonetheless, the sentencing discretion must always be exercised according to the circumstances of each case.
87 In Maric v The State of Western Australia, a number of leading cases involving s 6(1)(a) MDA offences were reviewed.54 An evaluation of those cases suggests a general range of sentences for s 6(1)(a) offences involving a quantity of 3.5 - 10 g of amphetamine/methylamphetamine, such that a sentence of 12 months' immediate imprisonment would clearly fall within that sentencing range. Those cases includes matters where charges were tried summarily (eg, Sumption v Gaunt) and on indictment (eg, The State of Western Australia v Thompson).55
88 I am of the view that a sentence of 12 months' imprisonment would be appropriate for this particular case and that a term of that duration falls within the range of a sound exercise of the sentencing discretion in the circumstances. I reach that view given the circumstances of the offending and the seriousness of the offence, and noting that counsel for the appellant accepted that a term of 12 month's imprisonment was an appropriate penalty for the offence in terms of a duration of imprisonment to be imposed, but had submitted further that the term of imprisonment ought to have been suspended.
89 Having concluded that a term of imprisonment of 12 months' duration would be appropriate for this case, the question then arises as to whether that term of imprisonment ought - as the appellant asserts - to have been suspended, in all the circumstances.
90 The relevant statutory framework as regards the imposition of a suspended imprisonment order is reviewed in The State of Western Australia v McCarthy.56
91 The sources of power for a court to impose a suspended imprisonment order are s 76 (suspended without conditions) and (for certain courts) s 81 (suspended with conditions) of the Sentencing Act. A suspended imprisonment order of either type is not to be imposed unless imprisonment for a term or terms equal to that of the suspended term would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.57
92 The effect of s 6(4), s 39(2) and (3), s 76(2) and s 81(2) of the Sentencing Act, in combination, is that a sentence of imprisonment (of any kind) cannot be imposed unless the seriousness of the offence is such that only a sentence of imprisonment can be justified or that the protection of the community requires it and, further, that a term of immediate imprisonment cannot be imposed unless the sentencing court is satisfied that suspended imprisonment, whether on conditions or not, is inappropriate.58
93 In determining whether a suspended imprisonment order may be imposed, a sentencing court must revisit all of the circumstances relevant to the decision to impose the term of imprisonment.59 A sentence should be suspended whenever all of the circumstances make it appropriate to do so. Even if a term of immediate imprisonment is generally the appropriate sentence for a particular offence, a sentencing court is not relieved of its obligation to assess whether, having regard to all of the relevant sentencing factors in the particular case, it is appropriate to suspend the term of imprisonment.60
94 In Rubin v The State of Western Australia, the Court of Appeal dealt with a ground of appeal alleging that it was not reasonably open to the sentencing court to decide that immediate imprisonment was the only appropriate sentencing option.61 Martin CJ (Hall J agreeing) said that a ground in those terms can only be made out 'if it is established that terms of imprisonment to be immediately served were not within the range reasonably open to the sentencing judge in the exercise of a sound discretionary judgment or, put another way, if it is established that suspended terms of imprisonment were the only type of sentence available within that range' [50]. That is so because there may be cases in which it will be reasonably open for a sentencing court to impose a term of suspended imprisonment or to impose a term of immediate imprisonment.62
95 Here, the circumstances of the offending display some low level drug dealing activity, eg, a licence plate switching device on the appellant's car, multiple clip seal bags, $920 in cash which could not be accounted for. The appellant's counsel at sentencing may have submitted that Mr Waters would only be prepared to accept his plea of guilty on a basis that if a good mate asked him for some, he would have shared it. But that statement must be viewed in the context of all the material facts of the offence to which the appellant had pleaded guilty and which were read aloud by the prosecutor at the sentencing hearing.
96 As to the personal circumstances of the appellant and, specifically, his participation in the Drug Court program, it may saliently be observed that the appellant had 'difficulties' in complying with some programming requirements placed on him by virtue of the PSO which was imposed in mid-March 2016, and that those difficulties in compliance were evident by at least early May 2016. The sentencing magistrate was clearly of the view that, even accepting Mr Waters had made some positive steps towards long-term employment and a reduction in the level of his drug use, those circumstances relevant to him were not sufficient to support either a lesser term than 12 months' imprisonment or the imposition of a suspended term of imprisonment.
97 As observed above, the Court of Appeal has said that ordinarily, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for a s 6(1) MDA offence and that the imposition of a suspended term of imprisonment for these offences is, as a matter of fact, exceptional. Consequently, I would conclude that it was reasonably open to the learned sentencing magistrate to take a view of the facts and circumstances that would deliver the safe conclusion that a suspended sentence was not appropriate in this case.
98 It is also clear from his sentencing remarks that his Honour had appropriately turned his mind both to the possibility of reducing the term of the imprisonment and then to whether a suspension of the term might be appropriate.
99 For the reasons given above, this ground cannot succeed and I would refuse leave to appeal in respect of ground 3.
Grounds of appeal 2 and 4
100 On its face, ground 2 alleges error in terms materially similar to ground 1, as regards an assertion of a failure by the sentencing magistrate to take into account, or to adequately have regard to, a factor relevant to sentencing. The same conceptual deficiencies, as regards the assertion of a 'weighting error' representing an independent ground which by itself cannot justify an appellate intervention, would therefore also apply in respect of that latter aspect of ground 2.
101 However, counsel for the appellant elaborated upon the gravamen for ground 2 by his verbal submissions, such that the overall argument upon ground 2 would appear, in effect, to also encapsulate aspects of ground 1 (the relevance of the appellant's medical conditions for sentencing) and all of ground 4. I proposed at the hearing of the appeal to deal with the recently proposed ground of appeal 4 as essentially a correlative to ground 2 and, as that foreshadowed approach was accepted, I proceed on that basis.
102 The overall argument for the as combined grounds 2 and 4, as it emerges from the appellant's submissions, contains a number of propositions. As I understand them, these propositions are as indicated below.
103 First, the Drug Court achieved some better relevant level of insight into the complexity and severity of the appellant's medical conditions during the course of the appellant's participation in the Drug Court program.
104 Second, the appellant's medical conditions explain, or at least largely account for, the circumstances of the termination of the appellant's participation in the Drug Court program.
105 Third, the circumstances of the termination of the appellant's participation in the Drug Court program were a relevant sentencing consideration.
106 Fourth, the Drug Court had reached (before termination) a view that the appellant's medical conditions were sufficiently mitigating as to warrant a departure from the earlier indicated sentence.
107 Fifth, the sentencing magistrate:
(a) had been unware that the appellant's medical conditions explained his termination from the Drug Court program (ie he was inadequately informed); or alternatively
(b) was aware that the appellant's medical conditions explained his termination from the Drug Court program, but failed to take that consideration into account or did not give adequate weight to that consideration.
108 Sixth, the sentencing magistrate was either unware of the view of the Drug Court that the appellant's medical conditions warranted a departure from the indicated sentence or, alternatively, was aware of that view but did not take it properly into account.
109 Ultimately it may inferred, with reference to s 6 and s 8 of the Sentencing Act, that the appellant's case is that the sentencing magistrate either did not recognise the appellant's medical conditions as a relevant mitigating factor or, if he did so, then he did not give adequate weight to that factor.
110 An integral feature of the appellant's arguments appears to be that his medical conditions not only relevantly explain why the Drug Court chose to terminate his participation in the Drug Court program but, further, that the Drug Court gained some relevant positive insights into the mitigating nature of the appellant's medical conditions, which insights were either not communicated to the sentencing magistrate or were not properly taken into account by the sentencing magistrate. The appellant asserts that, at base, that the end outcome of a failure to consider the positive perspective of the appellant obtained by the Drug Court as to the mitigating nature of the appellant's medical conditions and associated circumstances presents in the end as either an error of law by the sentencing magistrate or as a miscarriage of justice.
111 It is clear from the sentencing remarks that the Chief Magistrate did consider the circumstances in which the appellant's participation in the Drug Court came to be terminated. Though his remarks are brief, his Honour refers to the history of the proceedings relating to the s 6(1)(a) MDA charge, including the plea of guilty at a relatively early stage and the subsequent referral of the appellant to the Drug Court. He refers to the Drug Court file which he clearly was familiar with and renders general comments about the appellant's 'difficulties in relation to matters' and there being 'further positive tests during the time', but also noting that there was some improvement.
112 The appellant does not assert any relevant error of fact as revealed or suggested by the sentencing remarks. Objectively, the remarks made by the sentencing magistrate in relation to the appellant's participation in the Drug Court, including the appellant's relatively 'short involvement' with the Drug Court, present as factually correct.
113 The appellant argues, however, that there is no express reference to the appellant's medical conditions in the sentencing remarks and submits that the only possible indirect reference to them could be through the word 'difficulties'. Counsel for the appellant submitted:
So does the use of the word 'difficulties' encapsulate the medical issues? We say it doesn't. The use of the word 'difficulties', we say, could be referring to a number of issues: his difficulties in staying drug-free, for example; his difficulties in not attending urinalysis; his difficulties with drug use that have been explained to his Honour during the course of the plea in mitigation. So we say that the use of the word 'difficulties' doesn't indicate that the learned magistrate took into account the medical conditions from which my client was suffering and that's really the gravamen of ground 2.63
114 It is implicit in that submission that a failure to refer to the appellant's medical conditions, either directly or indirectly through the word 'difficulties', would be indicative of a failure to consider a relevant sentencing consideration.
115 Several points may be made in addressing this complex submission.
116 First, as was said in Nevermann v The Queen, the decision about what sentence to impose involves the exercise of a discretion based upon the relevant facts as found by the sentencing judicial officer and, consequently, the process of reasoning needs to be revealed.64 However, that does not mean that a sentencing court must exhaustively list and discuss all the factors that it considered.
117 Second, I would find that the word 'difficulties' is used by his Honour to refer to the circumstances of the appellant's ultimately unsuccessful participation in the Drug Court program and that his understanding of those circumstances necessarily includes some appreciation as to the significance of the appellant's medical conditions. I would conclude that, given the extensive verbal submissions made to him by counsel for the appellant only minutes before and the materials provided to him, the sentencing magistrate was relevantly aware of the medical conditions afflicting the appellant and necessarily took them into account in determining a sentence, noting what I have said earlier as regards the nature of the submissions made by the appellant's counsel at sentencing.
118 Third, as the appellant notes, the sentencing magistrate was obliged to take the circumstances of the appellant's participation in the Drug Court program into account, as s 33K of the Sentencing Act requires a court, in sentencing an offender who has been subject to a PSO, to take into account the offender's behaviour while subject to the PSO. However, it was for the sentencing magistrate to form his own view, based on the materials and evidence before him, as to the relevant facts relating to the appellant's conduct and to the circumstances generally of the appellant's termination from the Drug Court program, including as to the significance of the appellant's medical conditions. It is clear, however, that the sentencing magistrate did not consider the termination of the appellant's involvement in the Drug Court program as a consideration or circumstance that ought to count against the appellant, in terms of suggesting a penalty greater or more severe than the indicated sentence.
119 Certainly, a sentencing court may have reference to the expressed views of another judicial officer who has dealt with an offender. But it remains for a sentencing court to independently exercise the sentencing discretion. Thus, and as was accepted by the parties in this appeal, while a sentencing court dealing with an offender who failed to complete a Drug Court program may note what has been articulated earlier as the indicated sentence, that indicated sentence carries no statutory significance and is not to be seen as any binding disposition.65 In the same manner, a sentencing court may notice the expressed views of a judicial officer in the Drug Court as to an appropriate sentencing disposition for an offender, but is not bound by them.
120 Here, in effect, the appellant asserts that views expressed by the Drug Court magistrate became somehow a relevant consideration that the sentencing court had to consider and, further, that the sentencing remarks indicate that the sentencing magistrate did not do so.
121 Ultimately, the combined grounds 2 and 4 must fail, because they misconceive the nature of the exercise of the sentencing discretion under the Sentencing Act. It is axiomatic that the exercise of discretion must be in accord with the statutory sentencing principles set out in pt 2 of the Sentencing Act. Section 6(1) provides, as a fundamental principle for sentencing, that a sentence imposed on an offender must be commensurate with the seriousness of the offence.66 Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
122 As can be seen by the use of the phrase 'in the court's opinion', a sentencing court enjoys some latitude towards the factors that it may decide are relevantly mitigating and as to the weight to be given to any mitigating factor it identifies, provided that there remains an appropriate exercise of the sentencing discretion for that particular case.
123 There are a number of other provisions in the Sentencing Act that add further substance to the independence given to a sentencing court in the exercise the sentencing discretion, including: s 15 (in deciding on the proper sentence to be imposed, a court sentencing an offender may inform itself in any way it thinks fit); s 16(1) (power to adjourn sentencing to obtain further information or reports); and s 20 (power to order a pre-sentence report).
124 As noted earlier, many aspects of the practice and procedure of the Drug Court lack an express statutory basis. That includes, inter alia, the practice of nominating at an early point an indicated sentence to a participant in a Drug Court program, as also certain guidelines or procedures relating to the termination of a person's participation in a Drug Court program. In contrast, the imposition of a PSO with particular programming and supervision requirements on an offender by a Drug Court magistrate is sustained and regulated by an express statutory framework. The performance by an offender under that PSO, including compliance with the programming and supervision requirements imposed, is relevant to the sentencing of that offender. However, it is open for the sentencing court to form its own view of the relevant facts and circumstances as regards the behaviour of an offender under a PSO. There is no express requirement that a sentencing court have regard to particular views expressed by a Drug Court magistrate during the course of an earlier hearing.
125 Thus, even were I to accept, for the moment, the appellant's submission that the indicated sentence had been given by the Drug Court in circumstances where it did not have all the information, but then came later to recognise a change in circumstance and so to arrive at a view that the indicated sentence was no longer appropriate, those views obtained by the Drug Court were not binding upon the ultimate sentencing court. Nor can it be said that the sentencing court was under any obligation to inquire as to the views of a specific Drug Court magistrate as regards the circumstances of the appellant and the appropriateness of the indicated sentence. That is particularly so in circumstances where written transcripts are not routinely transcribed and kept on the Drug Court file.
126 It will also be remembered that in this case the sentencing of the appellant was referred to another magistrate so that the appellant would not feel that he had been 'prejudiced' by being sentenced by the Drug Court magistrate, in circumstances where her Honour had decided to terminate the appellant's participation in the Drug Court program. That course was designed to advantage the appellant, so that in the end it did not lie in him to complain that a fresh judicial mind, with some further objective distance as to the history and circumstances of his Drug Court participation, ought to have been brought to bear on his sentencing disposition.
127 For the reasons above, I would refuse leave to appeal for ground 2 and 4. I would also refuse leave to appeal on ground 1, having now dealt with the asserted relevance of the appellant's medical conditions as regards the circumstances of the appellant's termination from the Drug Court program.
128 Accordingly, the appeal is dismissed.
1The indicated sentence is the recommended sentence for a participant in a Drug Court program, should he or she fail to complete the Drug Court regime: see Ramsay v Trovarello [2009] WASC 146.
2Criminal Appeals Act 2004 (WA), s 10(3).
3Transcript of proceedings, Perth Magistrates Court, 20 June 2016, ts 2 - 3.
4Transcript of proceedings, Perth Magistrates Court, 20 June 2016, ts 3.
5 Transcript of proceedings, Perth Magistrates Court, 20 June 2016, ts 3-4.
6Transcript of proceedings, Perth Drug Court, 20 May 2016, ts 4.
7Transcript of proceedings, Perth Magistrates Court, 20 June 2016, ts 5.
8 Transcript of proceedings, Perth Drug Court, 20 May 2016, ts 2-3.
9 See page 21 of the Perth Drug Court Guidelines, Department of the Attorney General, 2013.
10Perejmibida v Skelcher [2002] WASCA 2 [4].
11 As to pre-sentence orders and the Drug Court, see observations by Heenan J in The State of Western Australia v O'Brien[2007] WASC 292 [57]-[61], [64]-[65].
12 See the definition of 'speciality court' under s 4(1) of the Sentencing Act read with reg 4A of the Sentencing Regulations 1996 (WA).
13 See also Ramsay v Trovarello[2009] WASC 146 [28]-[31].
14 Drug Court Guidelines, page 9.
15 Drug Court Guidelines, page 10.
16 Transcript of proceedings, Perth Magistrates Court, 20 June 2016, ts 4.
17 Transcript of proceedings, Perth Magistrates Court, 20 June 2016, ts 5.
18 Transcript of proceedings, Perth Magistrates Court, 20 June 2016, ts 4-5.
19 Transcript of proceedings, Perth Magistrates Court, 20 June 2016, ts 5.
20 Transcript of proceedings, Perth Magistrates Court, 20 June 2016, ts 7-8.
21Kelly v The State of Western Australia [2011] WASCA 273 [8].
22Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 330; Vagh v The State of Western Australia [2007] WASCA 17 [76].
23Trompler v The State of Western Australia [2008] WASCA 265 [32]; Morcom v The State of Western Australia [2013] WASCA 31 [33]; Trinh v The Queen [2013] WASCA 258 [22].
24Houghton v The State of Western Australia [2006] WASCA 143; (2006) 32 WAR 260 [24], [49]; Gulyas v The State of Western Australia [2007] WASCA 263.
25R v Vachalec [1981] 1 NSWLR 351, 353.
26 See, eg, Russell v The State of Western Australia [No 2] [2010] WASCA 159; Dimanopoulos v The State of Western Australia [2011] WASCA 62; The State of Western Australia v Auckram [2013] WASCA 256; (2013) 229 A Crim R 397; De Faria v The State of Western Australia [2013] WASCA 116; Truslove v The State of Western Australia [2015] WASCA 1.
27 See, eg, Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442; Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; Krijestorac v The State of Western Australia [2010] WASCA 35; Wheeler v The Queen [No 2] [2010] WASCA 105; Smith v The State of Western Australia [2010] WASCA 176; The State of Western Australia v Khasay [2014] WASCA 58.
28Milenkovski v The State of Western Australia [2014] WASCA 48 [104].
29Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [68].
30 See s 7 and s 95A of the Prisons Act 1981 (WA).
31Smith v The State of Western Australia [2010] WASCA 176 [28].
32Criminal Appeals Act,s 39(1).
33Criminal Appeals Act, s 39(2).
34Baron v Walsh [2014] WASCA 124 [81].
35 Transcript of proceedings, Supreme Court, 11 November 2016, ts 12-13.
36 Transcript of proceedings, Supreme Court, 11 November 2016, ts 23.
37 Transcript of proceedings, Supreme Court, 11 November 2016, ts 44.
38 See ts 7 and 14 in transcript of proceedings, Supreme Court, 11 November 2016.
39 Transcript of proceedings, Perth Drug Court, 20 May 2016, ts 4-5.
40 Transcript of proceedings, Perth Drug Court, 20 May 2016, ts 4.
41Colwell v The State of Western Australia [No 2][2012] WASCA 196.
42Yiu v The State of Western Australia [2016] WASCA 172 [13].
43House v The King (1936) 55 CLR 499, 505.
44Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6].
45Mitchell v Purvis [2016] WASC 351 [44] (Hall J).
46Howlett v Hesp [2012] WASC 351 [34] (Hall J).
47Yiu v The State of Western Australia [2016] WASCA 172 [14].
48 MDA, s34(1)(a).
49Wiltshire v Mafi [2010] WASCA 111.
50Maric v The State of Western Australia [2015] WASCA 190 [18].
51The State of Western Australia v Atherton [2009] WASCA 148 [125].
52 See, eg, Cartwright vThe State of Western Australia [2010] WASCA 4 [8]-[10]; The State of Western Australia v Johnson [2010] WASCA 187 [21], [23]; Riley v Smirk [2011] WASCA 200 [31] - [32]; The State of Western Australia v Berlingeri [2011] WASCA 242; Ness v The State of Western Australia [No 2] [2013] WASCA 56 [23]-[29], [36]; Crichton v The State of Western Australia [No 2] [2014] WASCA 37; The State of Western Australia v Baldini [2015] WASCA 39 [23] - [27]; Apkarian v The State of Western Australia [2015] WASCA 67; Fenton v The State of Western Australia [2015] WASCA 255 [18] - [19]; HNA v The State of Western Australia [2016] WASCA 165 [34] - [35], [44] - [45].
53The State of Western Australia v Atherton [2009] WASCA 148.
54 See generally [21]-[27] in Maric v The State of Western Australia [2015] WASCA 190.
55Sumption v Gaunt [2013] WASC 258; The State of Western Australia v Thompson [2014] WASCA 108
56The State of Western Australia v McCarthy [2014] WASCA 210 [50] - [57].
57Sentencing Act,s 76(2), s 81(2).
58Cartwright v The State of Western Australia [2010] WASCA 4 [8].
59Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84] and [85].
60Collins v The State of Western Australia [2007] WASCA 108 [21].
61Rubin v The State of Western Australia [2016] WASCA 2.
62Fogg v The State of Western Australia [2011] WASCA 11 [6] - [10] (McLure P, Mazza JA agreeing).
63Transcript of proceedings, Supreme Court, 11 November 2016, ts 32
64Nevermann v The Queen (1989) 43 A Crim R 347, 349 (Malcolm CJ).
65Ramsay v Trovarello [2009] WASC 146 [123].
66Kere Kere v The State of Western Australia [2016] WASCA 189 [33]
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