Attenborough v The State of Western Australia

[2005] WASCA 132

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   ATTENBOROUGH -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 132

CORAM:   ROBERTS-SMITH JA

MCLURE JA
PULLIN JA

HEARD:   5 MAY 2005

DELIVERED          :   5 MAY 2005

PUBLISHED           :  13 JULY 2005

FILE NO/S:   CACR 4 of 2005

BETWEEN:   KYLIE MAREE ATTENBOROUGH

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :YEATS DCJ

File No  :IND 1932 of 2004

Catchwords:

Criminal law and procedure - Whether failure to comply with Sentencing Legislation Amendment and Repeal Act 2003 or s 8(4) of Sentencing Act 1995 - Approach to consideration of suspended sentence option - Turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA), s 6

Sentencing Act 1995 (WA), s 8(4)

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Result:

Leave to appeal granted
Appeal allowed
Sentence set aside; new sentence imposed

Category:    B

Representation:

Counsel:

Appellant:     Mr M R Gunning

Respondent:     Mr K P Bates & Ms M L Huntly

Solicitors:

Appellant:     Cannon Bowden & Co

Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Chivers v The State of Western Australia [2005] WASCA 97

Colledge v The Queen (2001) 33 MVR 262

Dinsdale v The Queen (2000) 202 CLR 321

Lowndes v The Queen (1999) 195 CLR 665

Markarian v The Queen (2005) 215 ALR 213; [2005] HCA 25

Miles v The Queen (1997) 17 WAR 518

R v Latham (2000) 117 A Crim R 74

Case(s) also cited:

Evans v The Queen [1999] WASCA 252

Langridge v The Queen (1996) 17 WAR 346

R v Bellissimo (1996) 84 A Crim R 465

R v Darwell (1997) 94 A Crim R 35

R v Olbrich (1999) 1999 CLR 270

Samuel v The State of Western Australia [2004] WASCA 154

Watson v The Queen [2000] WASCA 119

1. ROBERTS-SMITH JA:  I  have had the benefit of reading in draft the reasons to be published by McLure JA.  They reflect my own reasons for agreeing in the orders made on 5 May 2005.

2. Section 8(4) of the Sentencing Act 1995 (WA) does not require the actual reduction in sentence for a plea of guilty to be stated, but it does require the fact that a reduction has been made on that account (or on account of any particular mitigating factor) to be expressed. The statutory injunction is not to be disregarded. Nor is it in conflict with the High Court's exposition of the "instinctive synthesis" process of sentencing (although if it were, the statutory requirement would prevail), as the Court itself recognised in Markarian v The Queen (2005) 215 ALR 213; [2005] HCA 25 (18 May 2005) -

   "It is not useful to begin by asking a general question like was a 'staged sentencing process' followed. That is not useful because the expression 'staged sentencing process' may mean no more than that the reasoning adopted by the sentencer can be seen to have proceeded sequentially. Or it may mean only that some specific numerical or proportional allowance has been made by the sentencer in arriving at an ultimate sentence on some account such as assistance to authorities or a plea of guilty. Neither the conclusion that a sentencer has reasoned sequentially, nor the observation that a sentencer has quantified the allowance made, for example, on account of the offender's plea of guilty, or the offender's assistance to authorities, of itself, reveals error. Indeed provisions like s 21E of the Crimes Act 1914 (Cth) may require the sentencer, in some circumstances, to identify the amount by which a sentence has been reduced on some account."  (My emphasis.)

3. MCLURE JA: On 7 February 2005 the appellant was convicted in the Perth District Court of possession of 8.43 grams at 40 per cent purity MDMA with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). She was sentenced by Yeats DCJ to 20 months' imprisonment and made eligible for parole.

4. The appellant applied for leave to appeal against the sentence.  At the conclusion of the hearing, the Court ordered that leave to appeal be granted, the appeal be allowed, the sentence be set aside and in lieu thereof the appellant be sentenced to a term of imprisonment of 12 months suspended for 12 months.  These are my reasons for joining in the making of those orders.

1. The appellant contended in substance that the learned sentencing Judge erred in:

   (1)imposing a sentence that was manifestly excessive;

   (2)failing to reduce the sentence by one third as required by cl 2(1) of Sch 1 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("Amendment Act") which came into operation on 31 August 2003;

   (3)sentencing the appellant on the basis that she was dealing in drugs to an extent which went beyond the accepted facts.

2. At the commencement of the appeal, the State conceded that the trial Judge erred by reversing the statutory process in concluding that a sentence of imprisonment was appropriate and only then considering whether it should be suspended.  The State also submitted that a suspended sentence was an appropriate disposition.

3. The appellant was in possession of 36 ecstasy tablets that she had purchased for the use of herself and her friends at her upcoming 21st birthday party.  Her friends had paid her in advance for the cost of the tablets ($30 each) purchased on their behalf.  The appellant did not profit as a result of her purchase of the drugs.  In the course of a search of the appellant's home, the police located the drugs the subject of the charge and $3835 in cash.

4. The appellant was 20 years old at the time of the offence.  She co‑operated with police, pleaded guilty on the fast‑track system, had no prior convictions, an excellent work record and strong support in the community.

5. In the course of sentencing the trial Judge said:

   "It seemed to me on the information that I had before me in terms of the money located in different places in the house and the quantity of these drugs that you are clearly dealing in them, you clearly were dealing in them in terms of your party that was coming up, and I do not accept the submission that you are not dealing in ecstasy.  Having made that finding then when I look at the question of how I should sentence you it seems to me first of all that this sentence - this amount of drugs is serious enough that a sentence of imprisonment is called for.  The main issue is whether that sentence should be - on this occasion whether I should suspend that period of imprisonment.

   The High Court has directed that in considering this issue I should again look at everything in your favour that I have spoken of before, the fact of your youth, the fact you have always worked, that this is your first offence, that - first serious offence - or first offence of any nature, the fact of your cooperation and your very early plea of guilty on the fast‑track.  … taking all of those matters into account I consider the quantity of ecstasy and the circumstances in which that was found to be so serious that a sentence of immediate imprisonment is called for.

   I normally would have sentenced you to 2 and a half years of imprisonment but I reduce that to 20 months' imprisonment.  Because of your early plea of guilty and because of the factors personal to yourself I order that you be eligible for parole."

6. The appellant relied on the final paragraph from the above passage in support of her contention that the sentencing Judge failed to reduce the sentence by one third as required by the Amendment Act.  The appellant contended that the transcript does not correctly record the flow of what her Honour said which was to the effect that she reduced the sentence to 20 months because of her early plea of guilty and the other factors personal to the appellant.  If that is correct, the sentencing Judge failed to reduce the sentence by a third and that constitutes an appealable error entitling this Court to intervene and resentence.  However, even if the transcription of her Honour's remarks correctly reflect her intention, that also reveals an appealable error.  A plea of guilty on the fast‑track system entitles a defendant to a discount of up to 30 ‑ 35 per cent from the otherwise appropriate sentence:  Miles v The Queen (1997) 17 WAR 518 at 521. Section 8(4) of the Sentencing Act 1995 provides:

   "If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court."

7. If the transcription is an accurate record of what the trial Judge said, she does not in her reasons expressly or impliedly indicate that she reduced the sentence for the fast‑track plea of guilty but rather took that into account in ordering eligibility for parole.  That approach reflects appealable error:  Chivers v The State of Western Australia [2005]

WASCA 97 at [17] - [19].  Accordingly, the reasons reflect an error, albeit of a different nature, on either interpretation of her Honour's reasons.  It was on that basis I was satisfied there was a relevant error that justified this Court's intervention in accordance with the principle in Lowndes v The Queen (1999) 195 CLR 665.

1. In the circumstances, it is unnecessary to deal with the remaining grounds of appeal.  However, it is appropriate to record that I am not persuaded her Honour erred in her approach to the question of whether suspension was appropriate.  That question requires careful consideration of the reasons of the High Court in Dinsdale v The Queen (2000) 202 CLR 321. It is sufficient to observe that the Court of Criminal Appeal has previously noted that after Dinsdale there is the possibility of some differences of understanding as to what is the correct approach when considering whether or not a suspended sentence is to be imposed:  R v Latham (2000) 117 A Crim R 74 per Parker J at [10]; Colledge v The Queen (2001) 33 MVR 262 per Murray J at [26].

2. Although the offence is serious, the circumstances of this case are at the low end of the scale of seriousness of offences of this kind.  I accept the State's submission that a term of immediate imprisonment is not the only appropriate disposition.  I concluded that a sentence of 12 months' imprisonment suspended for 12 months was appropriate in the circumstances because of the appellant's youth, the absence of a commercial motive or outcome, her clean record, her demonstrated remorse and the other factors personal to the appellant.

3. PULLIN JA:  I agree with McLure JA.