Benedetti v State of Western Australia
[2004] WASCA 278
•8 NOVEMBER 2004
BENEDETTI -v- STATE OF WESTERN AUSTRALIA [2004] WASCA 278
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 278 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:132/2004 | 8 NOVEMBER 2004 | |
| Coram: | MURRAY J MCKECHNIE J SIMMONDS J | 8/11/04 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Time extended, Leave to appeal granted, Appeal allowed, Sentence of 4 years quashed, Sentence of 2 years 8 months passed | ||
| B | |||
| PDF Version |
| Parties: | MARK BRIAN BENEDETTI STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Sentencing Trafficking in methylamphetamine Small quantity Apparent omission to reduce term by one-third under new sentencing regime Turns on own facts |
Legislation: | Sentencing Legislation Amendment and Repeal Act 2003 (WA), Sch 1, cl 2 |
Case References: | Schlenka v WA [2004] WASCA 142 R v McDonald [2000] WASCA 336 R v Jensen (1991) 52 A Crim R 279 Lowndes v R (1999) 195 CLR 665 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : BENEDETTI -v- STATE OF WESTERN AUSTRALIA [2004] WASCA 278 CORAM : MURRAY J
- MCKECHNIE J
SIMMONDS J
- Applicant
AND
STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : H H JACKSON DCJ
Citation : R -v- CAMPBELL & ANOR
File No : IND 1949 of 2002, IND 675 of 2003
(Page 2)
Catchwords:
Criminal law and procedure - Sentencing - Trafficking in methylamphetamine - Small quantity - Apparent omission to reduce term by one-third under new sentencing regime - Turns on own facts
Legislation:
Sentencing Legislation Amendment and Repeal Act 2003 (WA), Sch 1, cl 2
Result:
Time extended
Leave to appeal granted
Appeal allowed
Sentence of 4 years quashed
Sentence of 2 years 8 months passed
Category: B
Representation:
Counsel:
Applicant : Mr M L Tudori
Respondent : Mr R E Cock QC & Ms N A Lockwood
Solicitors:
Applicant : Michael Tudori
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Schlenka v WA [2004] WASCA 142
Case(s) also cited:
R v McDonald [2000] WASCA 336
(Page 3)
R v Jensen (1991) 52 A Crim R 279
Lowndes v R (1999) 195 CLR 665
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1 MURRAY J: This applicant was presented in the District Court on an indictment charging one count of possession of methylamphetamine with intent to sell or supply. The matter went to a jury trial together with a co-offender, a Ms Campbell, who was also sentenced on the same date as the applicant, but whose fate needs no further discussion in the context of these proceedings. The matter came before the trial judge for sentencing on 15 December 2003 and the facts were simple.
2 The applicant and his co-offender, she being behind the wheel of the vehicle, were found in a motor car in the early hours of the morning by police officers. They searched the offenders and the vehicle, finding what his Honour described as a wide range of the indicia of drug dealing, items such as mobile phones, apparently a number of them - and trade must have been brilliant because it seems that in the time that the officers were conducting their search, the telephones rang no less than nine times. However that may be, there were scales, bags, the drug itself, a quantity of money and a police scanner in the motor car.
3 His Honour said that the quantity of the drug involved was in the order of 14 grams. His Honour does not refer to the concentration, but to papers found in the applicant's bag which showed, as his Honour found, that the applicant had been involved earlier in drug dealing transactions and indeed, as his Honour noted, was on bail for such a transaction at the time when this offence occurred.
4 There was an extensive criminal history, escalating in seriousness, to which his Honour referred. It showed an entrenched pattern of drug offending, and that there were other matters for which terms of imprisonment had been imposed, which in part remained to be served. His Honour the trial judge then made the central observation relevant for sentencing purposes when he expressed his conclusion that the applicant had no respect whatever for other people, their property, or for the laws of the land.
5 His Honour concluded that a term of imprisonment to be served immediately should be imposed. He expressly referred to the matter in totality terms by saying that he should not impose a crushing term and clearly what his Honour had in mind was the sentences otherwise imposed upon the applicant, which he would have to serve, and his Honour's conclusion that the term that he should now impose was to be served cumulatively on the term presently being served.
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6 His Honour then went on to refer to what is described as the new sentencing provisions. He did so in the context that he wished to impress upon the applicant that if he continued with the type of lawless behaviour which he was presently exhibiting, the time would shortly come when eligibility for parole would be refused. His Honour said that under the new sentencing provisions he thought the court was presented with a greater discretion and freedom in relation to that decision and that indeed because of the applicant's antecedents and the seriousness of the offence, he might now decline eligibility for parole.
7 His Honour decided not to do so, and then immediately went on to impose the term which is the subject of the current application, a term of 4 years imprisonment with eligibility for parole, to be served cumulatively on the present term.
8 This appeal by application for leave is brought out of time. As I say, the sentence was imposed on 15 December and the application for leave with its accompanying application for an extension of time was brought on 27 July 2004, so on my count it was about six and a half months after the expiry of the period of 21 days permitted for the making of an application for leave to appeal.
9 There is an affidavit which seeks to explain that in terms of confusion on the applicant's part as to what had or had not been done by those representing him, and by his efforts to obtain legal aid. It probably ought to be said that, in my view, none of the material relied upon in that regard would justify the delay and time would not be extended were it not for the view which I would come to that the application for leave to appeal against sentence ought to be granted, the appeal allowed and the sentence adjusted in a way to which I will shortly come.
10 The grounds of the application for leave to appeal against sentence refer specifically to his Honour's failure to apply the transitional provisions associated with the enactment of the Sentencing Legislation Amendment and Repeal Act 2003. Alternatively, it is said that if it is to be considered that those provisions were properly applied, then the totality principle was insufficiently served and the sentence, having regard to its cumulative service upon previous terms, was manifestly excessive.
11 I have mentioned that the matter involved the possession of methylamphetamines with intent to sell or supply and that the sentence was one of 4 years imprisonment. It may observed that although reference to like cases is often of limited utility and can mislead, there is
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- recently the decision of this Court in Schlenka v WA[2004] WASCA 142, particularly at [14] of the judgment of the Court, which shows that this sentence would exceed what one would anticipate would be within the range of appropriate sentencing for this drug, although its seriousness is clearly acknowledged by the courts, possessed in the quantity and circumstances in this case.
12 I would be driven to the conclusion that his Honour erred in this case by failing to have regard directly to the need to apply the transitional provisions associated with the enactment of the Sentencing Legislation Amendment and Repeal Act 2003. Under Sch 1 of that amending Act, the transitional provisions are set out. Item 2 of those provisions provides that if the Court which is sentencing the offender to imprisonment, proposes to impose a fixed term, with or without parole eligibility, it must impose a fixed term that is two-thirds of the fixed term that it would have imposed had the old provisions been in operation at the time of sentencing.
13 It is a provision which was particularly material in a case of this kind where the offence was committed at a time when the old sentencing regime applied; in other words, before 31 August 2003, but the sentencing occurred after that date. Had it been applied, the term of 4 years imprisonment would have been reduced to one of 2 years and 8 months imprisonment. That would have been a term of the order of severity which one would expect in the circumstances of this case.
14 In my opinion, for those reasons, the extension of time necessary to permit the application for leave to appeal to be heard should be granted, leave to appeal should be granted, the appeal should be allowed, and the sentence of 4 years imprisonment imposed by the learned trial Judge should be quashed. In lieu of that sentence should be imposed a sentence of 2 years and 8 months imprisonment to be served cumulatively upon previous terms and with eligibility for parole. Those are the orders which I would make.
15 I would prefer, for myself, to leave for another day, when the occasion requires it to be argued more fully, the potential to have effected that result by an application at first instance under s 37 of the Sentencing Act 1995 (WA).
16 McKECHNIE J: I agree with the orders proposed by the presiding judge for the reasons he gives.
17 SIMMONDS J: I likewise agree with those orders, for those reasons.
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