Beasley v The State of Western Australia
[2012] WASCA 80
•5 APRIL 2012
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
CORAM: MARTIN CJ
BUSS JA
ALLANSON J
HEARD: 19 DECEMBER 2011
DELIVERED : 5 APRIL 2012
FILE NO/S: CACR 187 of 2010
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
Catchwords:
Criminal law - Jury directions - Directions as to appropriate use of intercepted telephone communications - Intercepted communications that went to counts on indictment not circumstantial evidence - To the extent that the prosecution's case was circumstantial, appropriate directions were given - Turns on own facts
Criminal law - Sentencing - Active mid-level distributor and user of methylamphetamine - Trial judge erred on facts in finding that a full eight ball was an ounce of methylamphetamine - Total effective sentence not altered - Turns on own facts
Legislation:
Evidence Act 1906 (WA), s 31A
Result:
Leave to appeal refused and appeal against conviction dismissed
Appeal against sentence allowed in part
Category: B
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):
Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49
Giglia v The State of Western Australia [2010] WASCA 9
McKeagg v The Queen [2006] WASCA 26; (2006) 162 A Crim R 51
Reid v The State of Western Australia [2012] WASCA 23
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Smith v The State of Western Australia [2010] WASCA 150
MARTIN CJ:
Summary
The appellant 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. He was sentenced to terms of imprisonment which resulted in a total effective sentence of 5 years imprisonment. He appeals against conviction and sentence. For the reasons which follow, the appeals against conviction should be dismissed. While the appeal against sentence should be allowed in part, the total effective sentence imposed by the trial judge should not be altered.
The appeal against conviction
The grounds of appeal against conviction are best considered in the context of a narrative history of the course taken at trial, commencing with the terms of the indictment.
The indictment
The appellant (who has only one name) was tried on an indictment containing four counts:
1.On 28 September 2007 at Geraldton Beasley attempted to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
2.Between 5 November 2007 and 30 November 2007 at Geraldton Beasley attempted to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
3.On 17 December 2007 at Geraldton Beasley offered to sell or supply a prohibited drug, namely methylamphetamine, to another.
4.On 15 February 2008 at Geraldton Beasley offered to sell or supply a prohibited drug, namely methylamphetamine, to another.
Judge's opening remarks
Following arraignment, the trial judge made some brief opening remarks to the jury, including observations in conventional terms with respect to the presumption of innocence, the burden of proof, the standard of proof, and the need to separately consider each count on the indictment. In that context, the trial judge observed that much of the evidence would be by way of telephone intercepts and SMS messages, and there would be issues with respect to the conclusions which the jury would derive from that evidence (ts 223).
The prosecution opening
After referring to the four counts on the indictment, the prosecutor advised the jury that a warrant had been obtained to monitor the appellant's telephone service between September 2007 and April 2008, during which 11,000 telephone calls and text messages were monitored. The jury were told that audio recordings of some of those calls would be played to them, and some text messages would also be placed in evidence.
The prosecutor told the jury that the first count relied upon an intercepted telephone conversation which took place on 28 September 2007 between the appellant and a person called Scotty (ts 225). A portion of the transcript of that call was read to the jury by the prosecutor, and it was put to them that with the assistance of the evidence to be given by Detective Langer, they would be invited to conclude that the appellant requested the supply of methylamphetamine. The jury were told that the prosecution would also rely upon evidence derived from the execution of two search warrants, one in February 2008 and another in March 2008, in the course of which drug paraphernalia with traces of methylamphetamine was found, as well as a recorded interview of the appellant by police. The jury were also told that the prosecution would rely upon telephone calls which were intercepted which were not related to specific counts on the indictment, but which provided background which they could use to judge the evidence on the specific counts.
In relation to count 2, the jury were told that reliance would be placed on seven telephone calls which were made during November 2007, and eight text messages. The prosecutor indicated that the jury would be invited to conclude from that material that the appellant had entered into a transaction with Mr Justin Lisle, known as 'Webby', and who was resident in Geelong, Victoria, for the purchase of a substantial quantity of methylamphetamine. The jury were then told that the prosecutor referred to particular portions of the intercepted telephone calls and text messages which were said to support that conclusion. The prosecution would also rely upon evidence to the effect that the appellant sent $9,250 in cash to Mr Lisle, and later deposited $4,000 into a bank account under Mr Lisle's control, and from which Mr Lisle withdrew about $3,500.
In relation to count 3, the jury were told that the State would rely upon an intercepted telephone conversation between the appellant and Ms Jodie Brown on 17 December 2007. Portions of the intercepted call were read to the jury, from which the prosecution invited the jury to infer that the appellant was offering to sell her methylamphetamine.
In relation to count 4, the jury were told that the State would rely on text messages passing between the appellant and his daughter in February 2008. Portions of the texts were read to the jury. They were told that they would be invited to infer that the reference to 'two eights' was an abbreviated reference to two eight balls, which is a reference to a quantity of methylamphetamine in the vernacular used by those who trade in that drug.
The prosecutor also advised the jury that they would be shown the recorded interview of the appellant by police, in which he gave explanations for the matters discussed in the recorded telephone conversations and the text messages, and for the remission of funds to Mr Lisle. The jury were told that they would be invited to reject the appellant's explanations, and to conclude, beyond reasonable doubt, that in relation to the first two counts, the appellant was attempting to acquire methylamphetamine, and in relation to the last two counts, that the appellant was offering to sell methylamphetamine.
Counsel for the appellant declined the opportunity to make any opening remarks to the jury.
The evidence
Only two witnesses gave evidence - a police officer, Detective Senior Constable Langer, who was called for the prosecution, and the appellant, who gave evidence in his own defence.
Detective Senior Constable Langer
Detective Langer gave evidence of his experience in the investigation of offences related to prohibited drugs, including methylamphetamine in particular. He gave evidence of the terminology used by those engaged in dealing in methylamphetamine, including the term 'eight ball' which is a quantity of 3.5 g. He referred also to the description of crystalline methylamphetamine by reference to its colour which was sometimes black.
Detective Langer gave evidence of the warrants that had been obtained to permit the monitoring of the appellant's telephone service, and of his role in monitoring the telephone calls that were made using that service. He asserted that he was able to identify the appellant's voice by reason of his experience in monitoring the calls made on the appellant's telephone.
The intercepted calls relating to count 1 were then played to the jury. Detective Langer identified the appellant as one of the speakers, and indicated which words were spoken by the appellant, and which by the person referred to as 'Scotty'.
In the course of the recorded conversation, Scotty asked 'do you want me to chase something up for you?' to which the appellant replied 'yeah'. Scotty said 'no worries, my man, and how much?' to which the appellant replied 'a full one, mate'. Scotty responded by saying 'no worries, mate. Look, I'll make a couple of calls now' and went on to say 'I'm not promising though, my man, I'm not promising anything'.
The intercepted conversations relating to count 2 were then played to the jury. Detective Langer identified the speakers as the appellant and Mr Lisle. In the course of one of the conversations, the appellant said 'I've got it all here, mate', and later said, 'if I can get a PO Box I can send it express'. Mr Lisle responded by saying it would be 'easier the other way' after which the appellant said, '[Y]eah, I know but I'm wary of it'.
In another conversation that was played to the jury relating to count 2, Mr Lisle referred to having used a club key but it 'was just empty'. Detective Langer interpolated to the jury that Mr Lisle was saying to the appellant that they had used a key belonging to the Rebels Outlaw Motorcycle Gang, Geelong Chapter, to check a post office box, but that there was nothing in there. In the course of the same conversation, the appellant referred to it being 'guaranteed overnight' and that it 'should be there tomorrow I guess' and 'there'll be a big smile on your dial tomorrow, mate'.
In another conversation between the appellant and Mr Lisle reference was made to 'probably half, three‑quarters' in the context of the appellant possibly coming 'over next week anyway'. Over objection, Detective Langer expressed the view that the parties to the conversation were referring to half the amount of drugs or three‑quarters of the amount of drugs that was expected to be delivered.
In another intercepted conversation between the appellant and Mr Lisle, the appellant said 'I could put four in for you'. In the course of the same conversation, Mr Lisle asked the appellant 'did you like the parcel?' to which he responded 'yeah, mate, yeah. I even watched the movie'.
Text messages relating to count 2 were also put in evidence through Detective Langer. They included a text to the appellant from Mr Lisle stating 'Justin Stoneman PO Box 691 [N]orth [G]eelong'. There was also a text from the appellant to Mr Lisle in terms '[a]ll good?' to which Mr Lisle responded '[j]ust got it, cheers', to which the appellant responded '[g]reat'. Another text from Mr Lisle to the appellant gave bank account details for Mr Lisle in respect of an account at the National Australia Bank.
The intercepted telephone call relating to count 3 was played to the jury. Detective Langer identified the speakers as the appellant and Ms Jodie Brown. In the course of the call, the appellant asked Ms Brown how she had gone the other night, to which she replied 'it was black' and later 'blue-black'. She went on to say that she 'wasn't very happy with it, but, um, ah, got rid of it anyway, you know?' Later in the conversation, Ms Brown said to the appellant 'I've got money on me, but, like, the bloke that I was, um, hunting for … he's, um, gone to Queensland now. He left last night. … he's been, like, um, he's been keeping me afloat, you know?' Later the appellant said 'so the question is, are you rich enough?' to which Ms Brown replied 'ah, a little bit, a little bit. … I wanna [sic] see what I'm buying first' to which the appellant responded 'what, you don't trust me?' The call concluded with the appellant saying 'I'll be there directly'.
Detective Langer was asked if he was aware of anything that's black or blue‑black. He responded that black refers to black amphetamine which, when it hit the market was thought to be good quality, but it was later discovered that it was not actually good quality.
In relation to count 4, two text messages were put before the jury. The first was from the appellant's daughter to the appellant in the following terms:
Dad, [B]ryan here wid me. He wants to no if u can put two eights away 4 him. His numba here txt him.
The appellant replied 'tell brotha, got one left, gotta B quik, I'm headn out bout 11'.
Detective Langer also gave evidence of the execution of a search warrant at the post office in Geraldton, where a parcel addressed to a 'J Stoneman' at the post office box in Geelong that had been referred to in the text received on the appellant's phone was located. It was found to contain $9,250 in cash. The envelope was opened and its contents were photographed and replaced in another package addressed the same way. The photographs were tendered in evidence.
Detective Langer also gave evidence to the effect that on the day that the appellant had spoken to Mr Lisle and said he would 'put four in', the appellant attended a branch of the National Australia Bank in Belmont and deposited $4,000 into the account of Mr Lisle. The relevant deposit slip was tendered in evidence, as was a withdrawal slip bearing the same date, in relation to the same account, showing the withdrawal of $3,500. Still photographs extracted from CCTV footage showed the appellant in the National Australia Bank branch in Belmont, and Mr Lisle in the branch of the National Australia Bank in Geelong, both on the day upon which the deposit and withdrawal were made.
Detective Langer was asked how he knew the photograph depicted Mr Lisle. He replied 'because I've seen photographs of him from the Victorian Gang Crime Squad' (ts 258).
Detective Langer also gave evidence that two photographs had been removed from the appellant's mobile telephone. They were tendered in evidence. One photograph depicts a large motorcycle in an indoor area, perhaps a lounge, in front of a large sign bearing the Rebels' insignia and motif. Another photograph depicts what appears to be a lounge or club area, also showing a Confederate flag, similar to the motif associated with the Rebels' signage in the first photograph.
Detective Langer also gave evidence of the execution of a search warrant on 23 February 2008. The warrant was first executed in respect of a vehicle being driven by the appellant near Dongara, and later at the appellant's place of residence in Geraldton. Detective Langer also gave evidence of the execution of another search warrant at the residence of the appellant in Geraldton on 7 March 2008. Certificates of analysis were tendered which showed that some of the materials found in the execution of the search warrants contained traces of methylamphetamine. Video recordings of the execution of the search warrants were shown, indicating the location of scales and clipseal plastic bags at the residence of the appellant. Traces of methylamphetamine were detected on the surface of the scales.
A video‑recorded interview of the appellant by police on 7 March 2008 was played to the jury. In the course of the interview, the appellant admitted to the purchase of drugs for his own use. When asked about the $9,250 which had been sent to Victoria, the appellant stated that it had been sent to enable Justin Stoneman to purchase a motorbike, and that it was a loan from him to Justin. He also stated that he had lent him another $4,000, which he had deposited in his bank account. When portions of the intercepted telephone calls were put to the appellant, he stated that he was talking to Justin about a DVD being sent to him, not drugs. The appellant also said that the money he had sent to Justin was part of $20,000 which he had borrowed from a friend.
When portions of the intercepted call relating to count 1 were put to the appellant during the interview, he denied that he and Scotty were talking about drugs. He said they could have been talking about anything.
During the interview the appellant confirmed that 3.5 g of methylamphetamine was commonly referred to as an eight ball. However, when the text message from his daughter was put to him, he asserted that she was referring to some eight ball air‑fresheners that he had, of the kind that can be purchased at auto shops.
Detective Langer gave evidence to the effect that in November 2007, an ounce of relatively high grade methylamphetamine had a value of between $9,000 ‑ $10,000.
Intercepted telephone calls and text messages that were not directly related to any of the four counts on the indictment were then put into evidence. Before that evidence was led, the prosecutor said, in the presence of the jury, '[y]our Honour, I should make it clear that these telephone intercept products are not directly related to either of the - any of the four counts' (ts 298).
Detective Langer identified the appellant as a participant in the calls. In the first call, recorded on 21 October 2007, the person speaking to the appellant referred to coming up there 'to try and buy one for cash'. In another call, the appellant said 'I suppose you could do me up for one maybe - one maybe - one?' to which the other party replied 'a ball?'.
Evidence was also given of a text message sent to the appellant's telephone in terms '[y]ou still here, dad? Can you help me out for a full one before you go, please?'. Evidence was given of other text messages received on the appellant's telephone in the following terms 'hey cob u in town chasing halfa if pos', to which the appellant replied, 'out at moment, not looking good, sorry bro'.
Another text was received on the appellant's telephone in the terms 'we need two now if you've got it'. Another text received on the appellant's telephone was in terms '[g]ot one here. Other one not avail til next week. U gunna drop in 2day?', to which the appellant replied 'yeah I will bout 1ish'.
Detective Langer also gave evidence to the effect that enquiries revealed that there was no person with the name 'Justin Stoneman'.
In cross‑examination it was put to Detective Langer that the appellant had been under police surveillance from August 2007 until March 2008. Detective Langer denied that assertion, but accepted that the appellant was under surveillance when he visited Victoria.
Cross‑examination was also directed to the content of the intercepted telephone calls, and to the execution of the search warrants. In that context, cross‑examination was directed to saleable quantities of methylamphetamine described as a 'point' referring to 0.1 g. It was also put to Detective Langer that the expression 'black rock' was not an expression used in Western Australia to describe methylamphetamine, but this proposition was rejected. When asked to describe 'black rock', Detective Langer described it as having a dark brown appearance.
In the course of cross‑examination relating to the meaning properly given to the words used in the intercepted telephone call relating to count 1, Detective Langer expressed the view that the term 'a full one' was a reference to a full ball of methylamphetamine, which is 3.5 g.
Detective Langer was cross‑examined in relation to the photograph taken from the appellant's telephone depicting a motorbike in a building with the Rebels' flag to its rear.
Detective Langer was then taken through the intercepted telephone calls in detail. It was put to him that the terminology in the calls did not suggest or refer to drugs. Detective Langer refuted those suggestions.
The trial judge ruled, over objection, that evidence of a prior conviction of the appellant was admissible pursuant to s 31A of the Evidence Act 1906 (WA). Consistently with that ruling, the prosecutor presented to the jury as an agreed fact the conviction of the appellant of possession of 41.7 g of methylamphetamine with intent to sell or supply. That offence was committed on 25 April 2002. The jury were also advised that electronic scales, clipseal bags and a knife were found in the possession of the appellant in connection with the offence of which he was convicted.
The evidence of the appellant
The appellant gave evidence, in the course of which he admitted that he was a regular user of methylamphetamine. He denied that he had ever heard the expression 'black rock' used in connection with methylamphetamine.
In relation to count 1, the appellant asserted that when speaking to Scotty, when he referred to 'a full one', he was referring to a full carton of beer which Scotty was to buy and take to his place where they were to have a drink.
In relation to count 2, the appellant gave evidence to the effect that he knew Mr Lisle as Webby. He stated that he had known Webby when he lived in Geraldton, but that Webby had left Geraldton, separating from his wife and family and moving to Melbourne, where he stayed with his brother and became a member of the Rebels Motorcycle Club. He asserted that Webby asked him for help, so that he could buy a motorbike, which he needed to become a member of the Rebels. The appellant stated that he had lent Webby $13,000 for that purpose.
The appellant was asked by his counsel about his trip to Melbourne. He stated that he had travelled in his own name, and made no attempt to cover his movements.
In relation to count 3, the appellant attributed his conversation with Ms Brown to a transaction relating to a mobile telephone that he had sold to her.
In relation to count 4, the appellant repeated the assertions he had made in the course of the video record of interview with police, to the effect that the message from his daughter related to the purchase of eight ball air‑fresheners.
The appellant specifically denied that he was using code terms to describe drugs in the intercepted telephone conversations. He also stated that he assumed that his phone was being tapped.
The appellant gave evidence to the effect that the traces of methylamphetamine found during the search of his house were attributable to his own drug use. He told the jury that he used the scales to measure out his own dosage of methylamphetamine, which is why traces of the drug were found on the scales.
The appellant was asked about the photographs which were found on his mobile telephone. He stated that he had taken the photographs himself at the Rebels' clubhouse in Geelong. He stated that the first photograph depicted Webby's motorbike in the Rebels' clubroom at Geelong.
The appellant was cross‑examined at length in relation to the terminology used by him during the intercepted telephone conversations. He consistently maintained the position that the various references within those telephone calls which were said by the prosecution to carry a connotation of drug dealing were entirely innocent. That portion of the cross‑examination was protracted. After more than two hours of cross‑examination on that theme, the trial judge intervened and suggested that further cross‑examination to the effect that the appellant was referring to methylamphetamine in the course of the intercepted telephone conversations was unlikely to receive any different response from the appellant (ts 407). Thereafter, the prosecutor touched upon other subjects before returning to the words used in the intercepted telephone calls, albeit more briefly. Nevertheless, the appellant was questioned in detail in relation to the words used in the telephone call the subject of count 3, and the texts which were the subject of count 4, and in relation to the conversations and texts which were tendered in evidence not as going to any specific count, but as providing contextual information.
Prosecution closing address
The prosecutor's closing address focused on the question of whether the jury was satisfied to the requisite standard that the communications recorded in the intercepted telephone calls and texts related to drug dealing, given the innocent explanations for the terminology used in those calls proffered by the appellant. Reference was also made to the appellant's prior conviction, the evidence of the transfer of funds to Mr Lisle in Victoria, and the seizure of paraphernalia often associated with drug dealing at the residence of the appellant, upon which traces of methylamphetamine were found.
Defence closing address
Counsel for the appellant focused initially on the fact that there was no explicit reference to a prohibited drug in any of the intercepted telephone calls or texts. He put to the jury that they should reject the State's suggestion that the appellant was talking in code in the course of the intercepted communications. He also put to the jury that it was highly unlikely that if, as the State suggested, the appellant's purpose in visiting the Rebels' clubhouse in Geelong was associated with drug dealing, that the appellant would have travelled to Melbourne under his own name and visited the clubhouse openly. In that context, counsel referred to the surveillance of the appellant by police.
Counsel for the appellant then went through each of the counts, addressing the particular words used in the intercepted communications relating to those counts. He drew the attention of the jury to particular words used, and reiterated the construction of the conversation which had been given by the appellant in evidence.
The judge's direction to the jury
In the course of his introductory remarks to the jury, the trial judge observed:
In this case, of course, much of the evidence was intercept material or product and one of your important duties is going to be to analyse that material to determine what it says, that is what in fact was said in the course of the telephone call or the SMS, and determine what inferences can be drawn, what conclusions can be drawn from those comments from intercept material (ts 475).
The trial judge gave conventional directions to the jury with respect to the burden and standard of proof, and the need for the jury to assess each count separately. He also gave directions with respect to the use which the jury could make of the appellant's prior conviction, in terms which are not challenged (ts 477 ‑ 479).
After giving general directions with respect to the elements of the offences charged, the trial judge gave specific directions with respect to each count. He drew the attention of the jury to the particular words in the intercepted material which were of greatest relevance to each count. In that context, he summarised for the jury the respective positions of the State and the appellant in relation to the proper construction to be placed upon the words used.
The trial judge also gave general directions to the jury with respect to circumstantial evidence, and the drawing of inferences, in conventional terms (ts 484).
The grounds of appeal
Ground 1
Ground 1 is in the following terms:
1.The learned trial judge erred both in law and fact, and there was a miscarriage of justice, when he failed to direct the jury they needed to be satisfied beyond reasonable doubt of a primary fact, namely that in the telephone intercept product relied upon by the prosecution at trial, the [a]ppellant was referring to drugs, as that primary fact formed an indispensible link in the jury's reasoning toward an inference of guilt.
The argument advanced in support of this ground presupposes that the evidence of the intercepted telephone communications was circumstantial evidence, to which the principles enunciated in Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 apply. On that assumption it is said that a conclusion that the appellant was referring to drugs in the intercepted material was an indispensable link in the jury's reasoning towards a conclusion of guilt, with the result that the jury should have been expressly directed that they must be satisfied of that circumstance beyond reasonable doubt.
There are a number of reasons why this ground must be dismissed. First, '[c]ircumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts' (Shepherd, 579 (Dawson J)). Although there were circumstantial aspects of the prosecution case against the appellant, including his prior conviction, the location of drug‑dealing paraphernalia and small quantities of methylamphetamine at his home, and the intercepted material which did not bear directly upon any of the counts in the indictment, the intercepted material which went directly to the counts on the indictment was not of that character. The intercepted material was direct evidence of conversations which were said to constitute the acts of attempting to possess a prohibited drug, the subject of counts 1 and 2 of the indictment, and the acts of offering to sell a prohibited drug which were the subject of counts 3 and 4 on the indictment. It would have been wrong for the trial judge to characterise the evidence of those conversations as circumstantial evidence, and confusing to the jury to give them a direction in accordance with Shepherd's case in respect of that evidence.
Second, as I have noted, both in his prefatory remarks at the commencement of the trial, and his direction to the jury prior to their retirement, the trial judge emphasised to the jury that an important issue in the case was their assessment of what in fact was being said in the course of the intercepted telephone communications. That point can hardly have been lost on the jury, as the question of what the words used in those communications properly meant was the focal point of much of the trial.
It was the focus of the opening address of the prosecutor, the evidence led on behalf of the State, the cross‑examination of the State's only witness, the evidence‑in‑chief of the appellant, the protracted cross‑examination of the appellant, the closing addresses of both counsel, and of the directions given to the jury by the trial judge. In that context it would have been otiose, and arguably demeaning for the trial judge to remind the jury of the blindingly obvious, which was that they had to be satisfied beyond reasonable doubt that the appellant was referring to prohibited drugs in the intercepted communications before they could convict. That much was patently evident from the general scheme of the directions given by the trial judge, in which he referred to the importance of ascertaining what in fact was being said in the intercepted communications, and in his directions to the jury identifying the elements of each count which had to be proven by the State beyond reasonable doubt.
Third, to the extent that the prosecution case against the appellant was circumstantial, the trial judge gave directions with respect to the drawing of inferences from circumstantial evidence in entirely conventional terms. In that context, after reminding the jury that before the accused could be found guilty, the State must establish its case beyond reasonable doubt, the trial judge directed the jury in these terms:
You must examine any inference or conclusion that you're reaching. Ask yourself whether there are any other explanations that commonsense and human experience tell you are not fanciful, because an inference of guilt cannot be drawn from the surrounding circumstances unless such circumstances as you find to exist or prevail exclude any reasonable hypothesis consistent with innocence, but when that's all boiled down, it simply comes down to this: you must be satisfied beyond reasonable doubt of the guilt of the accused person before you can return a verdict of guilty (ts 485).
In the circumstances of this case, a direction in those terms was all that was required.
Ground 2
Ground 2 is in the following terms:
2.The learned trial judge erred both in law and in fact, and there was a miscarriage of justice, when he allowed material whose [sic] prejudicial effect far outweighed its probative value to be placed before the jury;
Particulars
2.1The prosecution adduced evidence the appellant sent money to persons linked to the Rebels Outlaw Motorcycle Gang;
2.2The prosecution adduced evidence the appellant sent money to someone in Victoria to purchase drugs who was later identified to police in Geraldton by the Victorian Gang Crime Squad.
In argument advanced in support of this ground, it is conceded that no objection to the evidence identified in the ground was taken by experienced counsel at trial. Nevertheless, it is submitted that the trial judge should have performed his duty to ensure a fair trial by excluding the evidence of his own initiative, because the prejudicial effect of the evidence outweighed its probative value.
The dealings between the appellant and Mr Lisle were at the heart of count 2 on the indictment. It would have been impossible for the prosecution case to have been presented with respect to that count without identifying Mr Lisle. Further, in one of the intercepted communications, reference was made by Mr Lisle to a 'club key' which it was necessary for the State to explain. That explanation necessitated evidence being led with respect to Mr Lisle's connection with the Rebels Motorcycle Club.
Further, in order to identify Mr Lisle as the person who had withdrawn $3,500 on the day the amount of $4,000 had been deposited in a bank account by the appellant, it was necessary to identify the person depicted in the photograph taken from CCTV footage at the National Australia Bank branch in Geelong. That evidence was given by Detective Langer, and the basis of his identification of Mr Lisle was a necessary component of that evidence.
Viewed from the perspective of the terms in which this ground is couched, the probative value of the material the subject of the ground was high. By comparison, it is difficult to see that the material to which objection is now taken had any prejudicial effect (other than the prejudice which every accused person suffers when evidence probative of their guilt is adduced). The appellant had stated in the video record of interview with police that he lent $13,000 to 'Justin' to enable him to purchase a motorbike. Accordingly, the identification of Mr Lisle, and his association with a motorcycle club was consistent with that version of events. In that context, it is significant to note that during his evidence‑in‑chief, the appellant identified the motorbike depicted in one of the photographs taken from his phone as being a photograph of Mr Lisle's motorbike in the Rebels' clubhouse in Geelong (ts 354, 410). Further, evidence was led from the appellant by his own counsel to the effect that he had made no attempt to conceal his travel to Victoria, or his visit to the Rebels' clubhouse, in support of the appellant's assertion that his association with Mr Lisle was innocent.
In these circumstances, it is impossible to conclude that the evidence led by the State on these subjects was generally prejudicial to the appellant. Further and in any event, it is clearly open to infer that no objection was taken to the evidence by defence counsel in aid of a strategic forensic purpose, being the purpose of using the evidence to corroborate the innocent explanation given by the appellant for his dealings with Mr Lisle.
The reference made by Detective Langer to Mr Lisle having been identified in photographic material provided to him by the Victorian Gang Crime Squad could have had a prejudicial aspect, by suggesting to the jury that Mr Lisle was a person under surveillance. However, that reference was made in a brief portion of the evidence, and no later reference was made either in the evidence, or in the addresses of counsel or the judge's direction to the jury to the surveillance of Mr Lisle. However, extensive reference was made to the surveillance of the appellant by his own counsel during the course of the evidence and in the course of his closing address. Those references were made in the context of arguments to the effect that it was improbable that the appellant would have openly travelled to the Rebels' clubhouse if he were engaged in a drug‑dealing transaction, at a time when it was likely that both he and the clubhouse would be under surveillance. In that context, it is difficult to see how a suggestion that Mr Lisle was under surveillance can have occasioned any material prejudice to the appellant.
Ground 2 is without substance and must be dismissed.
Ground 3
Ground 3 is in the following terms:
3.The learned trial judge erred both in law and fact, and there was a miscarriage of justice, when he failed to adequately, or at all, direct the jury as to the use they could make of telephone intercept product adduced by the State that was not related to any of the four counts contained on the indictment.
The argument advanced in support of this ground is similar in many respects to the argument advanced in support of ground 1. In particular it is asserted that it was necessary for the trial judge to direct the jury that the evidence could only be used if they were satisfied beyond reasonable doubt that references were being made to prohibited drugs in those communications. It is also submitted that it was necessary for the trial judge to specifically direct the jury that this evidence was not directly related to the four counts on the indictment.
Unlike the evidence the subject of ground 1, the evidence the subject of this ground is properly characterised as circumstantial evidence. However, for the reasons I have given in relation to ground 1, in the context of this trial, the jury can have been in no doubt whatsoever that the issue which they had to determine in relation to this evidence, was whether the communications contained references to dealing in prohibited drugs. That was the focus of the evidence‑in‑chief led from Detective Langer, and of his cross‑examination by counsel for the appellant. It was also the focus of the evidence given by the appellant, and of his cross‑examination. In those circumstances, a statement of the blindingly obvious by the trial judge was unnecessary.
I turn now to the submission that it was necessary for the trial judge to expressly direct the jury that this evidence did not go directly to any of the four counts on the indictment. In this context it is significant to note that the prosecutor expressly opened the case to the jury on that basis, and drew the attention of the jury to the different character of this evidence when it was adduced through Detective Langer. Similar observations were made by the prosecutor in his closing remarks, when he prefaced his references to this material by telling the jury that it added 'colour and background' (ts 456). Further, each of the prosecutor, defence counsel and trial judge specifically directed the attention of the jury to the particular communications which were relevant to each count on the indictment in the course of their closing remarks. In that context, it would have been obvious to the jury that the other communications, which are the subject of this ground, were circumstantial rather than direct evidence. No express direction to that effect was necessary. Nor could it be credibly suggested that the omission of a direction to that effect gave rise to a miscarriage of justice, given the conventional directions which the jury received on the topics of circumstantial evidence and the drawing of inferences.
Conclusion - appeal against conviction
Leave to appeal has been granted on grounds 1 and 3 of the appeal against conviction, and the question of leave with respect to ground 2 referred to the court hearing the appeal. I would refuse the grant of leave in respect of ground 2, and dismiss grounds 1 and 3 for the reasons I have given.
Appeal against sentence
The appellant seeks an extension of time within which to bring his appeal against sentence, which was lodged approximately seven months out of time. It is unnecessary to consider the reasons for the delay in bringing the appeal against sentence, as the State properly concedes that the sentence imposed in respect of count 1 was affected by error. Because the resentencing of the appellant on count 1 requires a consideration of the interplay between the sentence properly imposed on that count, and the sentences imposed on the other counts, an extension of time to enable the appellant to appeal generally against the sentences imposed should be granted in the interests of justice.
The sentences imposed
In the course of his observations, the trial judge set out the findings of fact which he made for sentencing purposes. In relation to count 1, he expressed the view that he was satisfied that the description 'full one' referred to an ounce of methylamphetamine. In relation to count 2, he found that the money sent by the appellant to Mr Lisle was to facilitate the acquisition of at least an ounce of methylamphetamine of a reasonably high level of purity. The trial judge made no finding with respect to the quantity which the appellant offered to supply to Ms Jodie Brown, other than to find that the offer was in respect of 'good quality methylamphetamine' (ts 503). In relation to count 4, the trial judge found that the appellant offered to supply an eight ball, or 3.5 g of methylamphetamine.
The trial judge further found that the evidence put before the jury made it clear that the appellant was actively involved in the acquisition and dissemination of illicit drugs within the community, and was to be sentenced on the basis of 'an active mid‑level distributor and user of the substance' (ts 504).
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 of count 1, and that counts 3 and 4 be served concurrently with count 1, giving an effective head sentence of 5 years imprisonment. The trial judge ordered that the appellant be eligible for parole.
The ground of appeal
There is only one ground of appeal against sentence. That ground alleges that the sentencing judge erred in relation to the facts which he found with respect to the quantity and/or purity of the drug involved in respect of each of counts 1, 2 and 3.
As I have noted, the State properly concedes that the trial judge did err in relation to the findings he made with respect to the quantity of drug involved in count 1. The evidence of Detective Langer was that 'a full one', being the quantity referred to in the conversation which gave rise to count 1, was a reference to a full eight ball, or 3.5 g of methylamphetamine (ts 332). That amount is significantly less than the amount of 1 ounce, which was the amount found by the trial judge for the purposes of the sentence imposed on count 1.
There was ample evidence to sustain the finding of the trial judge in relation to count 2, to the effect that the appellant had attempted to acquire 1 ounce of reasonably high purity methylamphetamine. The evidence established that the appellant had paid Mr Lisle $13,250. The evidence of Detective Langer was that an ounce of reasonably high purity methylamphetamine had a value of $9,000 to $10,000 in November 2007 (ts 297), which is when the offence the subject of count 2 was committed. Accordingly, the amount paid by the appellant to Mr Lisle enabled it to be safely concluded, beyond reasonable doubt, that the quantity which he attempted to acquire was at least 1 ounce of reasonably high purity methylamphetamine.
In relation to count 3, as I have noted, the trial judge made no finding with respect to the quantity the subject of that count. He did find that the appellant had offered to supply good quality methylamphetamine, but that finding was amply sustained by the evidence of the terms of the conversation between the appellant and Ms Jodie Brown, in which the appellant responded affirmatively to a question by Ms Brown as to whether the drug to be supplied was good quality.
Accordingly, the ground of appeal is not made out with respect to the sentences imposed on counts 2 and 3, and there is no challenge to the sentence imposed on count 4. However, the ground of appeal is made out with respect to the sentence imposed on count 1. As the quantity of drug involved in relation to count 1 was significantly less than the quantity found by the trial judge, it would not be appropriate to affirm the sentence imposed notwithstanding the significant error made, and the appellant must be resentenced by this court in relation to count 1.
There is no ground of appeal to the effect that the sentences imposed by the sentencing judge in respect of counts 2, 3 or 4 were outside the range appropriate to the facts found by him, or that the head sentence of 5 years imprisonment was manifestly excessive, nor is there any basis upon which it could be concluded that those sentences were outside the range, or the head sentence so excessive as to manifest error. At the time of sentence, the appellant was a man of mature years (45), with a prior conviction for dealing in a substantial quantity of methylamphetamine, who had shown no remorse or contrition for his conduct, and who was not entitled to any discount arising from a plea of guilty. The general finding made by the trial judge to the effect that the appellant was actively involved in the acquisition and dissemination of illicit drugs within the community, and was to be sentenced as an active mid-level distributor and user of methylamphetamine remains accurate, notwithstanding the error made with respect to the quantity involved with count 1.
The actions giving rise to each count were quite separate and distinct, and could not conceivably have attracted the operation of concurrent sentences on the basis that they were part of a single transaction. Accordingly, the extent to which the sentencing judge directed that the sentences he imposed be served concurrently must reflect his view of the operation of the totality principle, and his view that a head sentence of 5 years imprisonment properly reflected the overall criminality manifested by the offences.
The trial judge imposed a sentence of 18 months imprisonment with respect to count 4, which involved an identical quantity of drug to that involved in count 1. The sentence imposed with respect to count 4 is well within the range of sentences imposed for comparable offences of that character, and could not be said to reflect anything other than the sound exercise of the sentencing discretion. It can reasonably be inferred that if the trial judge had not erred with respect to the quantity involved in count 1, he would have imposed a similar sentence in respect of that count to that which he imposed in relation to counts 3 and 4. A sentence of 18 months imprisonment in respect of count 1 would be consistent with the sentences imposed in respect of counts 3 and 4, and represents a sound exercise of the sentencing discretion. Accordingly, the sentence imposed on the appellant with respect to count 1 should be quashed, and a sentence of 18 months imprisonment imposed instead.
A question arises as to whether the head sentence imposed by the sentencing judge should be disturbed, by altering the direction which he made, to the effect that the sentence imposed with respect to count 2 be served partly concurrent with count 1, by commencing 12 months after the commencement of count 1. In my view, the head sentence of 5 years imprisonment properly reflects the overall criminality of the appellant, as an active mid‑level distributor and user of methylamphetamine, with a prior conviction for dealing in that drug, who had shown no remorse or contrition, and who was not entitled to any discount for a guilty plea. Accordingly, the effective head sentence imposed by the sentencing judge should not be disturbed, notwithstanding the factual error which he made in relation to count 1.
Conclusion
The appeal against sentence should be allowed in part and the sentence imposed in respect of count 1 quashed and in lieu thereof a sentence of 18 months imprisonment imposed. However, the sentences imposed upon the appellant with respect to counts 2, 3 and 4 should not be altered, with the result that the effective head sentence of 5 years imprisonment imposed upon the appellant is not altered.
BUSS JA: The appellant appeals to this court against conviction and sentence. He was convicted, after a trial in the District Court before Wisbey DCJ and a jury, on four counts in an indictment.
Counts 1 and 2 alleged that, on different dates, the appellant attempted to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the Act) read with s 33(1) of the Act. Counts 3 and 4 alleged that, on different dates, the appellant offered to sell or supply a prohibited drug, namely methylamphetamine, to another, contrary to s 6(1)(c) of the Act.
The trial judge sentenced the appellant to 4 years' imprisonment on each of counts 1 and 2, and 18 months' imprisonment on each of counts 3 and 4. His Honour ordered that the sentence for count 2 commence after the appellant had served 1 year of the sentence for count 1, and that the sentences for counts 3 and 4 be served concurrently with each other and concurrently with count 1. The total effective sentence was therefore 5 years' imprisonment. A parole eligibility order was made.
The relevant facts and circumstances are set out in the reasons of Martin CJ, with whom Allanson J has already expressed his agreement. I will not repeat them except to the extent necessary to explain my reasons.
The appeal against conviction
I agree with Martin CJ, for the reasons he gives, that leave to appeal should be refused on ground 2 of the appeal against conviction, and that the appeal against conviction should be dismissed.
The appeal against sentence
The sole ground of appeal against sentence alleges:
The learned sentencing Judge erred when, with regard to Counts 1, 2 and 3 on the Indictment, he made findings of fact as to the quantity and/or purity of the drug involved in each count that were not reasonably open to the requisite standard on the facts and evidence produced at trial.
The sole order wanted by the appellant is this:
The sentence of five years' immediate imprisonment be set aside and the Appellant be resentenced according to law.
Section 31(4)(a) of the Criminal Appeals Act 2004 (WA) provides that this court may allow an appeal against sentence if, in its opinion, a different sentence should have been imposed. By s 31(3), unless under s 31(4) this court allows the appeal, it must dismiss the appeal.
I agree with Martin CJ, for the reasons he gives, that the trial judge made a material error of fact when he sentenced the appellant for count 1 and, to that extent, the ground of appeal has been made out.
The material error of fact was that the trial judge sentenced the appellant for count 1 on the basis that the quantity of methylamphetamine which he sought to possess was 28 g (ts 502 ‑ 503), instead of the correct quantity of 3.5 g.
I agree with Martin CJ, for the reasons he gives, that the ground of appeal, to the extent it relates to the sentences for counts 2 and 3, fails.
The trial judge's material error of fact in relation to count 1 enlivens this court's jurisdiction to intervene by setting aside the individual sentence for count 1 and the total effective sentence of 5 years' imprisonment. The individual sentence should be set aside if this court is of the opinion that a different individual sentence should have been imposed. Similarly, the total effective sentence should be set aside if this court is of the opinion that a different total effective sentence should have been imposed.
As to the individual sentence for count 1, I am of the opinion that a different sentence should have been imposed. The quantity of the prohibited drug was a matter of importance in the sentencing process. His Honour's material error of fact resulted in a sentence that exceeded the upper limit of the permissible range. The sentence for count 1 must therefore be set aside.
This court has the information necessary to resentence the appellant for count 1. The sentencing discretion is to be exercised afresh. What sentence the trial judge would or might have imposed for count 1, if he had not made the material error of fact, is irrelevant.
The maximum penalty for the offence of possession of a prohibited drug with intent to sell or supply it to another, contrary s 6(1)(a) of the Act, is 25 years' imprisonment or a fine of $100,000 or both. See s 34(1)(a) of the Act.
Since the enactment of the Misuse of Drugs Amendment Act 2004 (WA), this maximum penalty has also applied to the offence of attempting to possess a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the Act. Previously, the maximum penalty for this offence had been 12 years 6 months' imprisonment or a fine of $50,000 or both.
In McKeagg v The Queen [2006] WASCA 26; (2006) 162 A Crim R 51, it was suggested that the 'conventional approach' is to treat an attempt as being less serious than a completed offence, notwithstanding that the Parliament has enacted that the maximum available penalty for an attempt is identical to the maximum available penalty for the completed offence. See the reasons of Roberts-Smith JA [21] and Murray AJA (Pullin JA agreeing) [55].
However, the culpability of an offender (including an offender who has been convicted of an attempt as distinct from the completed offence, including an attempt to possess a prohibited drug with intent to sell or supply it to another, contrary to s 6(1)(a) read with s 33(1) of the Act), and the extent to which he or she should be punished, must be determined by reference to all the facts and circumstances of the particular offending and the offender. For example, ordinarily there will be no material difference in culpability between an attempt and a completed offence involving drug dealing where the intervention of law enforcement agencies to replace a prohibited drug with an inert substance prevents the commission of the completed offence. See Reid v The State of Western Australia [2012] WASCA 23 [45] (Buss JA, McLure P agreeing).
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. Matters personal to an offender will almost always be given reduced weight.
When considering the sentencing standards that are usually observed in relation to offences of the kind committed by the appellant, it is necessary to have regard to a range of comparable cases. Nevertheless, each case turns on its own particular facts and circumstances. Sentencing ranges can provide only general guidance. The guidance afforded by comparable cases is flexible rather than rigid.
In Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49, Miller AJA reviewed the sentencing authorities in relation to cases involving the possession of quantities of methylamphetamine with intent to sell or supply to another. His Honour said, relevantly:
In cases involving smaller quantities of methylamphetamine (between 3 g and 65 g), sentences (where appropriate converted in accordance with the post-transitional provisions) have ranged from between 2 and 5 years. Most cases involved pleas of guilty. Examples from the last 10 years are:
•Vodanovic v The Queen (unreported, Court of Criminal Appeal, WA, No 151 of 1995; Library No 960056, 9 February 1996) (24.5 g of 2% purity ‑ 2 years);
•Bellissimo v The Queen (1996) 84 A Crim R 465 (20.8 g of 6% purity ‑ 3 years 10 months);
•Leonard v The Queen (unreported, Court of Criminal Appeal, WA, No 166 of 1998, 29 March 1999) (sale of 22.4 g of 8.5% purity amphetamines ‑ 3 years 4 months);
•Nelis v The Queen [2000] WASCA 194 (three counts of selling and/or possession, including 54.75 g of unknown purity ‑ 4 years 8 months);
•Marchesano v The Queen (2000) 116 A Crim R 237 (41.1 g of 20% purity and 1.36 g of 20% purity ‑ 2 years 4 months);
•Watt v The Queen [2000] WASCA 354 (6.74 g of between 18-22% purity ‑ 2 years 8 months);
•R v Weston [2000] WASCA 389 (41.77 g of unknown purity ‑ 1 year 8 months, suspended for 2 years);
•Mishal v The Queen [2001] WASCA 328 (20 g of 2% purity ‑ 2 years);
•R v Hafner [2002] WASCA 211 (attempted sale or supply of 21.2 g of 36% purity ‑ 4 years);
•Vogel v The Queen [2002] WASCA 261 (3.8 g of 11% purity and 2.86 g of 37% purity ‑ 2 years);
•Marker v The Queen (2002) 135 A Crim R 55 (two counts, one of 53.9 g of 41% purity and one of 0.1 gram of 59.3% purity respectively ‑ 4 years 5 months);
•Hiron v The Queen [2003] WASCA 310 (over 120 g of varying purity in three counts leading to a total term of 4 years 8 months’ imprisonment);
•Hollingsworth v The Queen [2004] WASCA 73 (9.2 g of between 3-5% purity ‑ 2 years, but concurrent with other offences and cumulative on sale of 29 g of methylamphetamine, making a total of 5 years);
•Schlenka v The Queen [2004] WASCA 142 (12.7 g of 47% purity ‑ 1 year 8 months' imprisonment);
•Samuel v Western Australia [2004] WASCA 154 (6.25 g of 25% purity ‑ 2 years, suspended for 2 years);
•Le v The Queen (2004) 147 A Crim R 269 (two counts involving methylamphetamine of respectively 6.94 g of 81% purity and 27.9 g of 83% purity ‑ 2 years 1 month and 4 years 2 months cumulative);
•Wong v Western Australia [2004] WASCA 286 (26 g of 6% purity ‑ 2 years 6 months, but cumulative with other sentences);
•Colangelo v Western Australia [2004] WASCA 294 (53.32 g of varying purity ‑ 4 years, but cumulative with other sentences);
•Olomi v Western Australia [2004] WASCA 304 (64.48 g with purity unknown ‑ 2 years 8 months, cumulative on other sentences, but concurrent with a parole term);
•Pepper v Western Australia (2005) 30 WAR 447 (3.5 g of 56-62% purity ‑ 2 years, cumulatively with other sentences); and
•Samuels v Western Australia (No 2) [2006] WASCA 222 (23.5 g of 34% purity ‑ 5 years) [41].
See also Smith v The State of Western Australia [2010] WASCA 150.
The review of sentencing dispositions undertaken by Miller JA in Bosworth, and his Honour's observations about the range of sentences revealed by his review, do not establish a sentencing matrix. They do not fix an upper or lower limit.
The appellant is not youthful. His date of birth is 8 March 1965. He was aged 42 years at the time of the offending and was 45 when sentenced by the trial judge. He is now 47 years old.
The appellant is not a person of prior good character. He does not have good antecedents. The appellant has numerous prior convictions, most of them for drug related offences. In particular, in 2003 he was convicted of possessing 41.1 g of methylamphetamine with intent to sell or supply it to another. This offence was committed in 2002. He was sentenced to 2 years 8 months' immediate imprisonment.
There is no finding by the trial judge as to the degree of purity of the 3.5 g of methylamphetamine which the appellant attempted to possess in relation to count 1. In the circumstances, the only reasonable inference, for sentencing purposes, is that he sought 3.5 g of methylamphetamine at street level purity, being about 10%.
The trial judge found that the appellant was an active mid‑level distributor, and user, of methylamphetamine (trial ts 504). That finding was not challenged. He should be resentenced on that basis.
The appellant pleaded not guilty to count 1 and went to trial. This does not, of course, aggravate the seriousness of his offending. However, it does demonstrate an absence of remorse and an unwillingness to accept
responsibility. The appellant does not have the benefit of the mitigation that a plea of guilty would have brought.
Personal and general deterrence are significant sentencing factors.
In my opinion, after having regard to all of the relevant facts and circumstances and all relevant sentencing considerations, the appellant should be resentenced on count 1 to 18 months' immediate imprisonment.
As to the total effective sentence of 5 years' imprisonment, the first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, having regard to all relevant circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate).
The severity or leniency of an individual sentence is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA, McLure P & Pullin JA agreeing).
In my opinion, the total effective sentence of 5 years' imprisonment imposed on the appellant (with 3 years to be served before eligibility for parole) was a just and appropriate measure of the appellant's total criminality after taking into account the maximum available penalties, the seriousness of the offences, the dearth of mitigating factors and the comparable cases. Despite the material error of fact made by the trial judge in relation to count 1, I would not interfere with the total effective sentence.
Accordingly, I agree with Martin CJ that an extension of time to appeal against sentence should be granted and that the appeal against sentence should be allowed in part. 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. I agree with the other orders proposed by Martin CJ in relation to the appeal against sentence. The new sentence 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.
ALLANSON J: I agree with Martin CJ.
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
BUSS JA
ALLANSON J
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
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 80
Schaper v The State of Western Australia [2010] WASCA 178
The State of Western Australia v Van Der Leer [2010] WASC 303
The State of Western Australia v Wallam [2008] WASCA 117 (S)
Traegar v Pires de Albuquerque (1997) 18 WAR 432
JUDGMENT OF THE COURT:
Summary
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
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.
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)).
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
Section 88 of the Sentencing Act provides that:
88.Concurrent, cumulative or partly cumulative terms
…
(3)If at the time an offender is sentenced to a fixed term -
(a)the offender is serving or has yet to serve another fixed term imposed previously; or
(b)the offender is then also sentenced to serve another fixed term,
the sentencing court may order that -
(c)the fixed term is to be served cumulatively on the other fixed term; or
(d)the fixed term is to be served partly concurrently with the other fixed term.
(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.
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; …
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.
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.
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.
In its submissions dated 26 July 2012, the respondent contended the appropriate way of resolving this issue would be to reduce the sentence 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
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.
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;
7.the sentences on counts 2, 3 and 4 are to be taken to have taken effect on 20 October 2010; and
8.the appellant remains eligible for parole.
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