Barnes v The State of Western Australia
[2014] WASCA 49
•28 FEBRUARY 2014
BARNES -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 49
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 49 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:139/2013 | 4 FEBRUARY 2014 | |
| Coram: | McLURE P PULLIN JA MAZZA JA | 28/02/14 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CAMERON ROBERT BARNES THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Appeal against total effective sentence of 6 years and 6 months' imprisonment Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(4)(a), 40(1)(e), s 41(4)(a) Sentencing Act 1995 (WA), s 6 |
Case References: | Giglia v The State of Western Australia [2010] WASCA 9 Italiano v The State of Western Australia [2012] WASCA 260 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Narkle v Hamilton [2008] WASCA 31 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BARNES -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 49 CORAM : McLURE P
- PULLIN JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEVENSON DCJ
File No : IND 475 of 2011
Catchwords:
Criminal law - Sentencing - Appeal against total effective sentence of 6 years and 6 months' imprisonment - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4)(a), 40(1)(e), s 41(4)(a)
Sentencing Act 1995 (WA), s 6
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr L M Levy SC
Respondent : Mr J A Scholz
Solicitors:
Appellant : David Manera
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Giglia v The State of Western Australia [2010] WASCA 9
Italiano v The State of Western Australia [2012] WASCA 260
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Narkle v Hamilton [2008] WASCA 31
1 McLURE P: I agree with Pullin JA that this appeal against sentence should be dismissed. The facts are detailed by Pullin JA. It is sufficient for my purposes to note the following.
2 On 12 August 2011 Eaton DCJ sentenced the appellant after trial to 6 years' immediate imprisonment for the offence of supplying methylamphetamine (54.6 g) to another committed on 31 July 2009 (the first offence). The sentence was ordered to commence on 20 June 2011.
3 On 8 September 2011, Stevenson DCJ sentenced the appellant after trial to 6 years and 6 months' immediate imprisonment for the offence of possessing methylamphetamine (51.23 g) with intent to sell or supply committed on 12 March 2010 (the second offence). The appellant was on bail for the first offence when he committed the second offence. Stevenson DCJ ordered that the sentence of 6 years and 6 months' imprisonment be served concurrently with the sentence for the first offence and commence on the same date as the first sentence (20 June 2011). Thus the appellant would serve an additional period of 6 months' imprisonment after the completion of the custodial and other part of the sentence for the first offence.
4 After being sentenced for the second offence, the appellant succeeded in an appeal against his conviction for the first offence: Italiano v The State of Western Australia [2012] WASCA 260. The conviction and sentence for the first offence were set aside on 6 December 2012. A retrial was ordered. Two or three days prior to the commencement of the retrial, the appellant pleaded guilty to the first offence. He was sentenced by Birmingham DCJ on 11 June 2013. Having regard to the appellant's plea of guilty and a finding that he had made significant steps towards rehabilitation, Birmingham DCJ imposed a sentence of 4 years 10 months' immediate imprisonment for the first offence to commence on 2 November 2011. He ordered that sentence to be served concurrently with the sentence of 6 years and 6 months' imprisonment for the second offence. Thus the head sentence for the second offence is 20 months longer than the head sentence imposed for the first offence.
5 This appeal can be disposed of without determining the issues of statutory construction relating to s 41(4) and s 40(1)(e) of the Criminal Appeals Act 2004 (WA). I will assume, without deciding, that this court is empowered to take into account the appellant's successful appeal against his conviction for the first offence and his resentencing by Birmingham DCJ for that offence.
6 As I understand it, the appellant makes two related claims. First, that it was Stevenson DCJ's intention that the appellant serve an additional period of only 6 months' imprisonment over and above the sentence imposed for the first offence regardless of the length of that term. Second, the length of the term of imprisonment for the second offence and the extent of the allowance for the time the appellant had spent in custody were fixed by reference to the length and the date of commencement of the first sentence. According to the appellant, the changes in the factual substratum on which he was sentenced for the second offence require a reduction in that sentence.
7 It is necessary to elaborate on the approach and reasoning of Stevenson DCJ. The primary sentencing issue identified by Stevenson DCJ was, having regard to the one transaction rule and the totality principle, the extent to which the sentence for the second offence should be served concurrently with the sentence for the first offence (ts 270).
8 The orthodox but not necessarily immutable practice is to fix an appropriate sentence for an offence before turning to issues of concurrence or cumulation with other sentences. However, the principle of totality can legitimately influence the length of an individual sentence: Johnson v The Queen (2004) 78 ALJR 616 [26]; Giglia v The State of Western Australia [2010] WASCA 9 [40]. For example, orders for cumulation may be associated with sentences that are lower in the sentencing range and orders for concurrency may be associated with sentences that are higher in the sentencing range.
9 The appellant had spent 293 days in custody in respect of the second offence. The respondent's position was that the appellant's sentence for the second offence could be backdated to 19 November 2010. The court has a discretion in relation to backdating: Sentencing Act 1995 (WA), s 87; Narkle v Hamilton [2008] WASCA 31.
10 Initially Stevenson DCJ said he would impose a sentence of 7 years' imprisonment which should be served partly concurrently with the sentence for the first offence. He relevantly continued:
The term of imprisonment that you are presently serving for the earlier offence commenced with effect on 20 June 2011. I direct that the 7-year term of imprisonment is to begin - I'm going to retract in part what I've said. As you know, I adjourned briefly to give reconsideration to my sentencing because I was informed today for the first time that you have served 293 days in custody in respect of this offending, and I want to achieve the sentence that I had in mind. So I'm going to retract what I've said already.
The sentence of imprisonment will be a period of imprisonment of 6 and a half years … [a]nd I direct that the sentence is to also commence from 20 June 2011 (ts 286 - 287).
11 Thus Stevenson DCJ reduced the head sentence from 7 years to 6 ½ years and backdated the sentence to 20 June 2011 to reflect the time the appellant had spent in custody in relation to the second offence. When regard is had to the time served and to be served for the second offence, the period of imprisonment was well in excess of the 6-month difference in the head sentences.
12 There can be no doubt that the sentencing disposition for the first offence (including its length and date of commencement) was relevant in the sentencing disposition for the second offence. However, there is no arguable foundation for a claim that the intention of Stevenson DCJ was that, regardless of the length of the sentence imposed for the first offence, the appellant should only ever serve an additional 6 months for the second offence. It is inconsistent with the discount given for the time spent in custody. In any event, the extent of any additional time in custody will be informed by the sentencing judge's assessment of where the existing sentence sits in the sentencing range. There is nothing in the sentencing reasons of Stevenson DCJ to suggest that the sentence for the second offence was increased for totality reasons.
13 Moreover, the subsequent events in this case are not such as to justify or require that a different sentence be imposed. See Criminal Appeals Act 2004 (WA), s 31(4)(a). The appellant had, by his own subsequent admission, committed the first offence. The original sentence of 6 years' imprisonment was appropriate in the circumstances in which it was imposed. The sentence for that offence was only reduced to 4 years and 10 months because of the appellant's subsequent conduct, being his late plea of guilty in his retrial and his significant steps towards rehabilitation, no doubt facilitated by the time spent in custody for the second offence. The sentence imposed by Stevenson DCJ for the second offence, when viewed from a standalone perspective, is an appropriate sentence. I agree with the orders proposed by Pullin JA.
14 PULLIN JA: The appellant was convicted after a trial before a District Court judge and jury of possessing a prohibited drug (methylamphetamine) with intent to sell or supply to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). He was sentenced to 6 years and 6 months' immediate imprisonment on 8 September 2011.
15 The appellant appeals against that sentence. The appellant filed his appeal notice on 25 June 2013. Leave to appeal was granted by Mazza JA on 6 September 2013. The appellant also required an extension of time to appeal. On 6 September 2013, Mazza JA referred the application for an extension of time to appeal to the hearing of the appeal.
16 As shall be seen, the event that prompted the application for leave to appeal was the resentencing of the appellant for an earlier conviction on 11 June 2013. There was no relevant delay between that event and the filing of the appeal notice on 25 June 2013. An extension of time to appeal should therefore be granted.
17 The single ground of appeal is that 'there has been a material change to the appellant's circumstances justifying a new sentence being imposed by the Court of Appeal'. The appellant says this court should resentence because of s 41(4)(a) of the Criminal Appeals Act 2004 (WA), which provides that this court, in 'deciding an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence … may take into account any matter, including any material change to the person's circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard'.
18 In particulars to the ground, the appellant sets out the following circumstances and says that they reveal the material change.
19 The particulars are:
(a) On 12 August 2011, his Honour Judge Eaton sentenced the appellant to a term of 6 years' imprisonment in relation to an offence of possessing methylamphetamine with intent to sell or supply to another. The sentence was backdated to commence on 20 June 2011 (the 'first sentence').
(b) On 8 September 2011, his Honour Judge Stevenson imposed the sentence of 6 years and 6 months' imprisonment upon the appellant for the offence referred to at the commencement of these reasons. That sentence was ordered to be served concurrently with the first sentence and was backdated to commence also on 20 June 2011 (the 'second sentence').
(c) When his Honour Judge Stevenson imposed the second sentence, it was his Honour's intention that the appellant serve an additional period of 6 months' imprisonment over and above the sentence imposed in relation to the first sentence.
(d) The appellant subsequently successfully appealed the conviction imposed in relation to the first sentence and a new trial was ordered.
(e) On 11 June 2013, the appellant was resentenced by his Honour Judge Birmingham to 4 years and 10 months' imprisonment in relation to the offence the subject of the first sentence.
20 What is contended is that, following the introduction of s 41(4)(a) of the Criminal Appeals Act (by the Criminal Law and Evidence Amendment Act 2008 (WA), assented to 12 March 2008), the court, in deciding an appeal that may require the court to vary a sentence imposed on a person for an offence, may take into account any material change to the person's circumstances between the time when the relevant sentence was imposed by the primary court and when the appeal is heard.
21 If the ground of appeal is to succeed, and before any examination of s 41(4)(a) is necessary, the point in par (c) to the particulars to the ground has to be established. The appellant contends that when the sentencing judge imposed the second sentence, it was his intention that the appellant serve an additional period of 6 months' imprisonment over and above the sentence imposed in relation to the first sentence.
22 If his Honour had done what the appellant suggests was his intention, his Honour would have fallen into error. Section 6(1) of the Sentencing Act 1995 (WA) requires a sentencing judge to impose a sentence commensurate with the seriousness of the offence for which the sentencing discretion is being exercised. Factors that must be taken into account by the sentencing judge when determining the seriousness of the offence are set out in s 6(2) of the Sentencing Act. His Honour did not say that he was sentencing or intending to sentence the appellant to whatever sentence was appropriate for the first offence plus 6 months. To sentence in that manner would have required his Honour to disregard the considerations that he was obliged to take into account as a result of s 6 of the Sentencing Act. His Honour did what the Sentencing Act required him to do. He set a sentence which was commensurate with the seriousness of the offence.
23 The ground of appeal therefore fails at the outset. As a result it is not necessary to consider the meaning of s 41(4)(a) of the Criminal Appeals Act. The appeal should be dismissed.
24 The orders should be:
1. Application for an extension of time granted.
2. Appeal dismissed.
25 MAZZA JA: I agree with McLure P.
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