May v. The State Of Western Australia - (01 Jul 2019)

Seriousness of offence must be determined by taking into account statutory penalty for offence, circumstances of commission of the offence, any aggravating factors and mitigating factors

Criminal

In present case, the Appellant attempted to possess a prohibited drug, namely cocaine, with intent to sell or supply it to another. On 17 December 2018, he was sentenced to 15 months' immediate imprisonment with eligibility for parole. The Appellant filed appeal against sentence and alleged that, the sentence imposed was manifestly excessive. Further, that, the learned sentencing judge made a material express error of fact.

Section 6 of the Sentencing Act, 1995 requires that, a sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of the Appellant's offence must be determined by taking into account the statutory penalty for the offence, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors. 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 a sentence of imprisonment can be justified, or the protection of the community requires it.

Before a sentencing judge can impose a sentence of immediate imprisonment, he or she must be positively satisfied that suspended imprisonment of any type is not an appropriate sentencing option.

Cocaine is a dangerous drug in the same echelon as other drugs such as methylamphetamine, MDMA and heroin. The sentencing principles relating to the trafficking of drugs of this type are well established. They were recently restated by Mazza and Mitchell JJA in The State of Western Australia v Egeland. This court has made it plain that, generally, as a matter of fact, a term of immediate imprisonment is the only appropriate sentencing option for serious drug offences. The incentives, financial and otherwise, to participate in the illicit drug distribution network must be counterbalanced by a clear and certain understanding that such involvement will ordinarily result in a penalty of immediate imprisonment. Accordingly, the imposition of a sentence other than immediate imprisonment for an offence of the kind under consideration in this appeal is, as a matter of fact, exceptional. However, even if a term of immediate imprisonment is generally the appropriate penalty, a sentencing judge is not relieved of their obligation to determine the appropriate penalty in the particular case.

It is relevant that, Appellant intended to distribute cocaine, an illicit and dangerous drug, to others. A distribution of this kind still puts at risk the health and wellbeing of those who are given the drug. The offence committed by the Appellant was serious. When all of the circumstances are taken into account, including those personal to the Appellant, and the relevant principles are applied, the only appropriate disposition in present case is the imposition of a term of imprisonment. A term of 15 months' imprisonment is appropriate. Appeal dismissed.

Tags : POSSESSION PROHIBITED DRUG SENTENCE LEGALITY