JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BEASLEY -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 80 (S) CORAM : MARTIN CJ HEARD : ON THE PAPERS DELIVERED : 29 AUGUST 2012 FILE NO/S : CACR 93 of 2011 BETWEEN : BEASLEY Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : WISBEY DCJ
Citation : THE STATE OF WESTERN AUSTRALIA v BEASLEY
File No : GER 37 of 2009
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Catchwords:
Criminal law - Sentencing - Correction of sentence - In the court's own motion - Sentencing Act 1995 (WA), s 37
Legislation:
Sentencing Act 1995 (WA), s 37, s 88(4), s 93, s 94(3)
Result:
Sentencing orders recalled
Appellant resentenced
Category: D
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr J Scholz
Solicitors:
Appellant : Thames Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):Beasley v The State of Western Australia [2012] WASCA 80Schaper v The State of Western Australia [2010] WASCA 178The State of Western Australia v Van Der Leer [2010] WASC 303The State of Western Australia v Wallam [2008] WASCA 117 (S)Traegar v Pires de Albuquerque (1997) 18 WAR 432
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Summary 1 The appellant, Beasley, was convicted after trial by judge and jury in the District Court on two charges of attempting to possess methylamphetamine with intent to sell or supply, and two charges of offering to sell or supply methylamphetamine. The appellant successfully appealed against his sentence on count 1 (see Beasley v The State of Western Australia[2012] WASCA 80). The Court of Appeal resentenced the appellant to 18 months imprisonment for that count, but did not interfere with the sentences imposed for counts 2 to 4. In restructuring the appellant's sentence, the Court of Appeal inadvertently contravened s 88(4) of the Sentencing Act 1995 (WA) (Sentencing Act). The court, of its own motion and after giving the parties an opportunity to be heard, has exercised its discretion under s 37 of the Sentencing Act to recall the sentencing orders made on 5 April 2012. The court imposes a sentence of 12 months imprisonment in respect of count 1. The court upholds the sentences imposed on counts 2, 3 and 4. The sentences on count 3 (18 months) and count 4 (18 months) are to be served concurrently with each other and concurrently with the sentence on count 2 (4 years). The new sentence on count 1 (12 months) is to be served cumulatively upon the sentence on count 2 (4 years). The total effective sentence imposed on the appellant is still 5 years imprisonment, reflecting the overall criminality of the appellant's conduct. The appellant remains eligible for parole. The sentences on counts 2, 3 and 4 are to be taken to have taken effect on 20 October 2010, being the date on which the appellant was taken into custody for the offences in question.
Background
2 The appellant, Beasley, was convicted after trial by judge and jury in the District Court at Geraldton on two charges of attempting to possess methylamphetamine with intent to sell or supply, and two charges of offering to sell or supply methylamphetamine. The trial judge sentenced the appellant to 4 years imprisonment in respect of each of counts 1 and 2, and 18 months imprisonment in respect of each of counts 3 and 4. He further directed that the term imposed on count 2 be partly concurrent with count 1, so that it commenced after the appellant had served one year on count 1, and that counts 3 and 4 be served concurrently with count 1, giving a total effective sentence of 5 years imprisonment. The trial judge ordered that the appellant be eligible for parole.
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3 Beasley appealed to the Court of Appeal against both conviction and sentence. On 5 April 2012, the Court of Appeal published its reasons. The court dismissed the appellant's appeal against conviction, but allowed the appellant's appeal against the sentence imposed on count 1, on the basis that the trial judge made a material error of fact in his findings concerning the quantity of drug involved in count 1. Each member of the court agreed that the sentence imposed by the trial judge for count 1 should be set aside and, instead, a sentence of 18 months immediate imprisonment should be imposed (Beasley v The State of Western Australia, [95] (Martin CJ, Allanson J agreeing), [127] - [128] (Buss JA)). However, the court did not interfere with the sentences imposed with respect to counts 2, 3 and 4, and was of the view that the total effective sentence imposed by the trial judge of 5 years was a just and appropriate measure of the total criminality of the appellant's offending (Beasley v The State of Western Australia, [94] (Martin CJ, Allanson J agreeing), [127] - [128] (Buss JA)).
4 Accordingly, while the court reduced the term of imprisonment to be served on count 1 to 18 months, it maintained the direction of the trial judge to the effect that the sentence of 4 years for count 2 should not be commenced until the appellant had served one year of count 1.
Correction of Sentence
5 Section 88 of the Sentencing Act provides that:
(Page 5) (4) If under subsection (3)(d) a court orders that a term is to be served partly concurrently with another fixed term, the court must specify the period of the other fixed term that is to be served before the partly concurrent term is to begin, but that period must not extend beyond the earliest date on which the offender could be released (whether on parole or not) in relation to the other fixed term.
6 Further, s 93 of the Sentencing Act provides that: (1) Subject to section 94, a prisoner serving a parole term is eligible to be released on parole - (a) if the term served is 4 years or less - when he or she has served one-half of the term; …
7 Moreover, s 94(3) provides that a parole term imposed at the same time as another parole term is to be aggregated with that other term for the purposes of s 94(1) unless it is to be served partly concurrently with that other term. 8 After the Court of Appeal reduced the appellant's sentence on count 1 to 18 months, he was eligible for parole in respect of that sentence after 9 months in accordance with s 93. Therefore, the direction that the appellant not commence his sentence of 4 years for count 2 until he had served 12 months of his sentence for count 1 contravened s 84(4) of the Sentencing Act.
9 Section 37(1) of the Sentencing Act gives the court the power to 'recall' an order whereby it sentenced an offender 'in a manner that is not in accordance with [the] Act' and to 'impose a sentence that is'. The power is a discretionary one: Traegar v Pires de Albuquerque (1997) 18 WAR 432; The State of Western Australia v Wallam [2008] WASCA 117 (S), [32] (McLure J), [59] (Murray AJA and Miller JA agreeing); The State of Western Australia v Van Der Leer [2010] WASC 303, [15] (Simmonds J). The court's inadvertent contravention of s 88(4) of the Sentencing Act enlivens the court's discretion under s 37 of the Sentencing Act to recall the order imposing the sentence, and impose a sentence that is in accordance with the Act. Pursuant to s 37(2) of the Act, the court must give the parties the opportunity to be heard. The court, in a letter dated 22 May 2012, extended this opportunity to be heard to the parties. Both parties agreed to the matter being dealt with on the papers following the exchange of written submissions.
10 In its submissions dated 26 July 2012, the respondent contended the appropriate way of resolving this issue would be to reduce the sentence
(Page 6) imposed in respect of count 1 to 12 months imprisonment, and direct the sentence imposed in respect of count 2 be cumulative on the sentence imposed on count 1. On 17 August 2012, the appellant, through his solicitors, agreed with the submissions made by the respondent.
Resentencing 11 The court is of the opinion that reducing the sentence imposed in respect of count 1 to 12 months imprisonment (solely for the purposes of achieving a just outcome on totality: see Schaper v The State of Western Australia [2010] WASCA 178 [75] and the cases there cited), and directing that this new sentence be cumulative on the sentence of 4 years imprisonment imposed in respect of count 2, is the correct and preferable means by which to correct the sentences imposed on the appellant. The court upholds the sentences imposed on counts 2, 3 and 4. The sentences on counts 3 and 4 are to be served concurrently with each other and concurrently with the sentence on count 2. This adjustment to sentence reflects the court's finding that the total effective sentence of 5 years imprisonment was proportionate to the overall criminality notwithstanding the factual error made by the trial judge in relation to count 1. The sentences for counts 2, 3 and 4 should be taken to have taken effect on 20 October 2010, being the date on which the appellant was taken into custody for these offences.
12 It is therefore ordered that:
1. the sentencing orders made by the Court of Appeal on 5 April 2012 be recalled; 2. the appellant be sentenced to 12 months imprisonment in relation to count 1;
3. the appellant be sentenced to 4 years imprisonment in relation to count 2;
4. the appellant be sentenced to 18 months imprisonment on each of counts 3 and 4;
5. the sentences on counts 3 and 4 are to be served concurrently with each other and concurrently with the sentence on count 2;
6. the new sentence on count 1 is to be served cumulatively upon the sentence on count 2;
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