Atkinson v The State of Western Australia
[2008] WASCA 88
•16 APRIL 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ATKINSON -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 88
CORAM: STEYTLER P
McLURE JA
MILLER JA
HEARD: 16 APRIL 2008
DELIVERED : 16 APRIL 2008
PUBLISHED : 24 APRIL 2008
FILE NO/S: CACR 127 of 2007
BETWEEN: TREFOR DAVID ATKINSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'SULLIVAN DCJ
File No :IND 1153 of 2004
Catchwords:
Criminal law - Appeal against sentence - Offence of incitement to commit an offence - Applicability of one transaction rule - Impediments to assessing total criminality of the offending - Parity
Legislation:
Misuse of Drugs Act 1961 (WA), s 33(3)
Result:
Appeal allowed
Category: A
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr J Mactaggart
Solicitors:
Appellant: Hammond Worthington
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Haines [2001] SASC 347; (2001) 125 A Crim R 126
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
Roffey v The State of Western Australia [2007] WASCA 246
Walgar v The State of Western Australia [2007] WASCA 241
STEYTLER P: I have read the reasons of McLure JA. I agree with them. They reflect my own reasons for joining in the decision of the court to grant an extension of time, grant leave to appeal, allow the appeal, set aside the order for cumulation and order that the sentences imposed by the sentencing judge be served concurrently.
McLURE JA: The appellant was convicted of two counts of inciting Kevin Smith to commit an offence, namely the sale of a prohibited drug to another contrary to s 33(3) of the Misuse of Drugs Act 1961 (the Act).
The appellant was sentenced on 24 April 2007 by O'Sullivan J to a term of immediate imprisonment of 2 years and 1 month on each count. The sentencing judge ordered the sentences to be served cumulatively resulting in a total effective sentence of 4 years and 2 months. At the conclusion of the hearing of the appeal, the court granted an extension of time within which to appeal and leave to appeal, allowed the appeal, set aside the order for cumulation and ordered that the sentences be served concurrently. These are my reasons for joining in the making of those orders.
The appellant relied on two grounds of appeal being that the sentencing judge erred in ordering total cumulation of the sentences and that the total sentence infringed the parity principle.
The appellant required an extension of time within which to apply for leave to appeal. The appeal was filed on 5 October 2007. There is no adequate explanation for the delay up to September 2007. In those circumstances, an extension of time should be refused unless such a course would result in a miscarriage of justice.
The appellant was originally charged with one count of conspiracy together with Smith to sell or supply a prohibited drug to another. The appellant had pleaded not guilty to that charge. Just prior to the commencement of the trial the parties negotiated and the appellant indicated he would plead guilty to incitement charges. It was said the factual basis of those charges were broadly agreed. They were based on the content of intercepted telephone conversations between the appellant and Smith.
It is necessary to refer to the detail of the charges which provide:
(1)Between 30 July 2003 and 20 November 2003 at Victoria Park and elsewhere in the State of Western Australia, [the appellant] incited
Kevin Ross Smith to commit an offence, namely the sale of a prohibited drug to another.
(2)Between 20 November 2003 and 9 December 2003 at Victoria Park and elsewhere in the State of Western Australia, [the appellant] incited Kevin Ross Smith to commit an offence, namely the sale of the prohibited drug to another.
The charges are vague and ambiguous. However, they were formulated with input from the appellant's legal advisers and were intended to accommodate acts of incitement of sales generally. That is, no particular act of incitement relates to any particular sale. No issue was to be taken with duplicity.
As a result of the way the parties presented their cases, the trial judge's findings are also of unusual generality. The sentencing judge said:
It was said on [the appellant's] behalf that you were dealing with Smith in an effort to collect debts owed by him to a number of creditors, and the conversations or a number of them were to be understood as relating to that.
The difficulty I have with that submission is that the conversations said to be susceptible of that explanation were not specified and neither were the creditors on behalf of whom [the appellant] were said to be acting. I have no doubt that Kevin Smith did experience financial difficulties after buying into the business of the Foundry Hotel and that that might well have played a part in motivating him to offend as he did, but having examined the conversations upon which the state relies, it is quite clear that they relate in a large degree to drug matters and they evidence offending by you in a way which can only be described as significant.
The language that [the appellant] used in dealing with Smith appears on occasions to have been quite coded, but it does seem that you not only urged Smith to engage in the selling of drugs but you also threatened him on occasions with physical as well as financial harm if he did not promptly [comply]with your requirements.
And later:
In my opinion … it is clear that in the last half of 2003 [the appellant] engaged in actively promoting the distribution of drugs for profit by encouraging and inciting Kevin Smith to sell the drugs.
There is no challenge to those findings. However, it should be clarified that the appellant did not himself threaten to harm Smith but warned Smith of the potential for violence from others to whom the money was to be paid.
Section 33(3) of the Act provides:
A person who incites another person to commit, or becomes an accessory after the fact to, an offence (the 'principal offence') commits ‑
(a)if the principal offence is a crime, the crime;
(b) …
but is liable on conviction ‑
(c)to a fine not exceeding half the fine; and
(d)to imprisonment for a term not exceeding half of the term,
to which a person who commits the principal offence is liable.
As far as I am aware, this court has not considered the scope of this offence. As is apparent from the reduced penalty, the offence of incitement applies where a person is not a party to an offence pursuant to s 7 and s 8 of the Criminal Code (WA).
At common law it was an offence to solicit or incite any person to commit an indictable offence. A person who incites is one who counsels, commands or advises the commission of an offence and that person is guilty even though the person incited does not commit any offence: Haines [2001] SASC 347; (2001) 125 A Crim R 126 [32] ‑ [34]. That statement is consistent with the proper construction of s 33(3) of the Act.
On the other hand, if a person incited an offence and that offence was actually committed by the person incited, the offender would ordinarily be a party to the offence under s 7(d) of the Code which relates to a person who counsels or procures another person to commit an offence. The appellant has not been convicted as a party to the offence of selling prohibited drugs. He cannot be sentenced on that basis. The prosecution did not establish any connection between a particular act of incitement and a particular sale.
The maximum penalty for the offence of selling and supplying a prohibited drug is 25 years (s 34(1)(a)). Thus, the maximum penalty for inciting such an offence is 12 1/2 years. Notwithstanding that s 33(3) deems incitement to constitute the offence incited, it must, having regard to the reduced penalty, be characterised as significantly less serious. The maximum penalty for conspiring with another to sell or supply a prohibited drug is 20 years (s 34(1)(b)).
Smith pleaded guilty to five counts of selling or supplying methylamphetamine. The offences and the sentences imposed are as follows.
Date of the offence
Amount of Drug (gm)
Sentence
23 September 2003
3.5
21 months
6 October 2003
0.1
16 months
7 October 2003
14.1
21 months
21 October 2003
32.44
28 months
30 November 2003
27.3
28 months
The sentencing judge ordered that the two sentences of 28 months be served cumulatively and the balance of the sentences be served concurrently. Thus, Smith's total effective sentence was 56 months (4 years 8 months).
The appellant, Smith and a third person, Michael John Heaton were sentenced at the same time by the same sentencing judge. Heaton was found guilty after trial of one count of selling or supplying a prohibited drug, which related to the sale on 30 November 2003 for which Smith was also convicted. Heaton was sentenced to 3 years and 4 months for the offence.
Ground 1
On the subject of the one transaction rule, I repeat what I said in Walgar v The State of Western Australia [2007] WASCA 241 [9]:
The scope of the one transaction rule and its relationship with the totality principle have been considered by this court and its predecessor on a number of occasions including in R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [25] - [28]; Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585 [20] - [24]; and Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 [84] - [87]. It is unnecessary to repeat the detail of what was said in those cases. In summary, multiple offences will be part of one transaction if the offender was truly engaged upon one multifaceted course of criminal conduct or if all the offences taken together constitute a single invasion of the same legally protected interest. If the offences are part of one transaction, it is a general rule (or what has been described as a good working rule) that any terms of imprisonment are made concurrent. However, a sentencing judge must in each case consider whether the application of the general rule would result in an appropriate measure of the total criminality involved in the conduct.
The last sentence is a reference to the first limb of the totality principle. The first limb of that principle is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [23] ‑ [26].
The sentencing judge did not make findings as to the specific acts of incitement for which the appellant was convicted. This was largely due to the generality of the submissions advanced by both the prosecution and the defence who presented the facts as being part of a course of conduct. In those circumstances, the only appropriate conclusion is that the conduct the subject of the two counts was part of one multifaceted course of conduct to which the one transaction rule applies. Before applying the general rule leading to total concurrency (which would result in a total effective sentence in this case of 2 years and 1 month) it is necessary to consider whether a total sentence of 2 years and 1 month would bear a proper relationship to the overall criminality of the appellant's conduct.
As previously noted, the sentencing judge made no findings as to the specific acts of incitement. It is unclear whether the trial judge accepted that there were multiple separate acts of incitement the subject of count 1. The prosecution relied only on one act of incitement in relation to count 2. The evidence on which it relied as constituting the incitement was disputed by the defence who nonetheless conceded there was an act of incitement in the relevant period without identifying what it was. The sentencing judge could not and did not resolve the conundrum. In this unsatisfactory state of affairs the appellant should be given the benefit of the difficulty in assessing the total criminality of the appellant's conduct. I was satisfied that the sentencing judge erred in ordering cumulation. The respondent conceded that the sentencing judge had so erred.
Ground 2 - Parity
It is not strictly necessary to determine this ground. However, it raises an important issues of principle on which I wish to comment.
There is no dispute about the parity principle. Equal justice requires that, as between co‑offenders, there should not be a marked disparity which gives rise to a justifiable sense of grievance: Lowe v The Queen (1984) 154 CLR 606, 617 ‑ 618; Postiglione v The Queen (1997) 189 CLR 295, 301. For a sense of grievance to be justifiable, the difference between the sentences must be manifestly excessive (Lowe at 624 (Dawson J)). If there are factors which support different treatment as between co‑offenders, whether because of different degrees of culpability or differences in their circumstances, then, it will be appropriate to treat them differently (Postiglione at 301 (Dawson & Gaudron JJ)). If a difference in sentence is a reasonable consequence of different factors, there can be no justifiable sense of grievance.
Of primary significance in this case is that the appellant was convicted of incitement which is significantly less serious than the offence of selling and supplying a prohibited drug of which Smith and Heaton were convicted. The appellant cannot be sentenced as if he was a party to the offences committed by Smith or that he had conspired with Smith and the Smith offences were the overt acts of that conspiracy. Moreover, there is no finding by the sentencing judge as to what, if any, other drug offences Smith had committed in the relevant period which may be attributed in some general non‑specific way to the incitement. The difference in the seriousness of the offending should have been reflected in the sentences imposed on the appellant. It is unnecessary to say anything further on this subject in view of the success on ground 1.
MILLER JA: I agree with McLure JA.
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