Donaldson v. The State of Western Australia - (09 Aug 2018)

Mere fact that a sentence is outside the range does not necessarily establish that exercise of sentencing discretion in particular case miscarried

Criminal

Present is an appeal against sentence. The Appellant was convicted, on his plea of guilty, on a single count in an indictment which alleged that, on 18th February, 2016, at Middle Swan, he had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to Section 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act).

A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The limits of the guidance afforded by comparable cases are flexible rather than rigid. A sentencing range is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.

When present Court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this Court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range. The discretion conferred on sentencing judges is, of course, of fundamental importance. Present Court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.

The absence of aggravating factors is not mitigatory. The Appellant's prior criminal record demonstrated that, he was not a person of prior good character. His offending was not an aberration. The Appellant's steps towards rehabilitation were commendable, but not exceptional. No special leniency was warranted. The Appellant had a prior criminal record including prior convictions for possession of prohibited drugs (multiple offences), possession of drug paraphernalia and supplying a prohibited drug. The fact that the previous sentences did not achieve the purpose for which they were imposed did not aggravate the seriousness of his current offending.

The principal sentencing factors were appropriate punishment and personal and general deterrence. The sentence of 2 years 3 months' immediate imprisonment is broadly consistent with reasonably comparable cases. After evaluating the sentence, in the context of the maximum penalty, the facts and circumstances of the offending, the standards of sentencing customarily observed, the place which the Appellant's offending occupies on the relevant scale of seriousness of offences of this kind and all mitigating factors, sentence was not unreasonable or plainly unjust. The existence of error is unable to be inferred from the sentencing outcome. Appeal dismissed.

Tags : CONVICTION SENTENCE QUANTUM