Beske v The State of Western Australia
[2006] WASCA 285
•15 DECEMBER 2006
BESKE -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 285
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 285 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:154/2006 | 15 DECEMBER 2006 | |
| Coram: | ROBERTS-SMITH JA | 14/12/06 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time to file appeal notice granted Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | TEDDY BESKE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law and procedure Application for leave to appeal against sentence One count of possession of methylamphetamine with intent to sell or supply 20 months' immediate imprisonment Grounds that suspended sentence should have been imposed Insufficient weight given to mitigating factors Weight given to aggravating factors not proved Incorrect sentencing process followed Whether reasonable prospect of succeeding on appeal |
Legislation: | Nil |
Case References: | Dinsdale v The Queen (2000) 202 CLR 321 Duong v The State of Western Australia [2006] WASCA 110 Samuels v Western Australia (2005) 30 WAR 473 Tulloh v The Queen (2004) 147 A Crim R 107 Langridge v The Queen (1996) 17 WAR 346 Pepper v Western Australia (2005) 30 WAR 447 R v Collins (1993) 67 A Crim R 104 R v Olbrich (1999) 199 CLR 270 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BESKE -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 285 CORAM : ROBERTS-SMITH JA HEARD : 15 DECEMBER 2006 DELIVERED : 15 DECEMBER 2006 FILE NO/S : CACR 154 of 2006 BETWEEN : TEDDY BESKE
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STAVRIANOU DCJ
File No : IND 185 of 2006
Catchwords:
Appeal - Criminal law and procedure - Application for leave to appeal against sentence - One count of possession of methylamphetamine with intent to sell or supply - 20 months' immediate imprisonment - Grounds that suspended sentence should have been imposed - Insufficient weight given to mitigating factors - Weight given to aggravating factors not proved - Incorrect sentencing process followed - Whether reasonable prospect of succeeding on appeal
(Page 2)
Legislation:
Nil
Result:
Application for extension of time to file appeal notice granted
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : No appearance
Solicitors:
Appellant : Thames Legal
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Dinsdale v The Queen (2000) 202 CLR 321
Duong v The State of Western Australia [2006] WASCA 110
Samuels v Western Australia (2005) 30 WAR 473
Tulloh v The Queen (2004) 147 A Crim R 107
Case(s) also cited:
Langridge v The Queen (1996) 17 WAR 346
Pepper v Western Australia (2005) 30 WAR 447
R v Collins (1993) 67 A Crim R 104
R v Olbrich (1999) 199 CLR 270
(Page 3)
1 ROBERTS-SMITH JA: The appellant was convicted following trial before his Honour Judge Stavrianou in the District Court, together with a jury, at Perth on one count of possessing a prohibited drug with intent to sell or supply. The drug was methylamphetamine. The appellant had 13.22 grams of 8 per cent purity. The evidence at trial was that was street-evel purity.
2 On 19 October 2006 the appellant was sentenced to a term of 20 months' immediate imprisonment, backdated to 9 September 2006. His appeal notice was filed on 27 November 2006. It was therefore out of time and an extension of time is sought.
3 That application is supported by the affidavit of Paul Lothar Ralf Meyer, made 27 November 2006. It is, I think, not necessary to recite the facts deposed to. The appeal notice was not very much out of time. The explanation is reasonable and there is no apparent prejudice to the respondent. I would grant the extension of time.
4 The appellant's case was filed on 29 November 2006. There are three grounds of appeal. They are:
"Ground 1
The learned sentencing Judge erred in not suspending the sentence as a result of failing to afford sufficient weight to mitigatory factors;
- (i) There was no reliance by the Respondent upon either an intention to sell or supply;
(ii) His Honour sentenced on the basis the Appellant trafficked in drugs.
Ground 2
The learned sentencing Judge erred when he found proved as an aggravating fact an issue that was not so established:
(Page 4)
- (i) His Honour found as an aggravating factor the Appellant's offending was part of a commercial venture;
(ii) There was no evidence before the sentencing court the Appellant was involved in any degree of illegal commercial activity.
Ground 3
The learned sentencing Judge followed an incorrect sentencing process and therefore erred in not suspending the sentence imposed;
- (i) The learned sentencing Judge first determined whether or not to suspend the sentence;
(ii) The learned sentencing Judge secondly determined the length of sentence."
5 Leave to appeal is required for each ground of appeal (s 27(1) of the Criminal Appeals Act 2004 (WA)). The court or a sentencing Judge must not grant leave unless persuaded the ground has a reasonable prospect of succeeding on the appeal (s 27(2)). The application of that test was explained in Samuels v Western Australia (2005) 30 WAR 473 at [50] to [60]. That is the approach I adopt here.
6 It is necessary at this point to refer to the facts and to his Honour's sentencing remarks. The appellant was seen by police, seated alone in a motor vehicle, at a railway station about 9 pm. He had methylamphetamine and a small quantity of cannabis in the car together with a fit pack. What happened was that three police officers were conducting routine patrols out of the Cottesloe police station and went to the Victoria Street railway station in Mosman Park, which was where they saw the appellant parked in his vehicle in a slip road near the station. They parked their vehicle close to that of the appellant and then approached it.
7 He was sitting alone in his vehicle in the driver's seat. As one of the officers approached he saw the appellant shuffling his hands around near the front of his jeans. The officer also saw a small butt of cannabis on the
(Page 5)
- shelf under the dashboard of the vehicle. The officers searched the appellant and inside his underpants a plastic clip-seal bag was found. Wound about that plastic clip-seal bag was a black hair elastic. The appellant subsequently agreed in a police video record of interview that the black hair tie was his.
8 Inside the clip-seal bag were four smaller clip-seal bags, each of which contained a powder which, on subsequent analysis, was found to be methylamphetamine with a total weight of 13.22 grams. The weight of the powder in each of the bags was 3.27 grams, 3.14 grams, 3.4 grams and 3.41 grams respectively. As I have indicated, the average purity of the drug was 8 per cent.
9 In the early hours of the following day police conducted a search of the appellant's home. That revealed some empty clip-seal bags wrapped in a syringe wrapper. Again on the video record of interview he told the police officers that he had been on a binge, a methylamphetamine binge, recently.
10 The appellant had been in custody prior to his sentencing on 19 October since 20 September this year. His Honour observed the appellant was a 42-year-old man born in 1964 in Denmark. He left school before the end of year 10 and then commenced an apprenticeship as an upholsterer. He did not complete that but nonetheless has worked as an upholsterer for most of his life. He stopped work full-time in December 2005 because he had become quite depressed over the pending charge.
11 He has had piece work since that time and was on trial on call as and when required as a labourer through an employment firm. His Honour noted the appellant had been married for 10 years and separated approximately 12 years earlier. He had a 22-year-old daughter and an 18-year-old son, both of whom had supported him during the trial.
12 His Honour noted further personal details about the antecedents and family circumstances of the appellant. He noted that he had been fined $100 for possession of a smoking implement in March 1998 and $2000 for possession of a prohibited drug on 9 November 1999. In May 2006 he had been convicted in relation to possession of the small quantity of cannabis which was found in his vehicle when the police apprehended him in Mosman Park. His Honour pointed out that the previous convictions did not aggravate this particular matter. He also noted the appellant had a history of drug problems and that he was a user of
(Page 6)
- methylamphetamine at the time this offence was committed. He had started using amphetamines following the break-up of his marriage.
13 He said there was no evidence in this case that the appellant had sold any methylamphetamine. He was not found with paraphernalia associated with the drug business but nonetheless the conviction was for sale or supply. His Honour went on to say:
"I accept and sentence you on the basis that this possession was not part of a large commercial venture on your behalf."
14 His Honour then referred to the decision of the Court of Appeal in Tulloh v The Queen (2004) 147 A Crim R 107 concerning sentences for possession of a prohibited drug with intent to sell or supply and the principles which his Honour thought should be drawn from that case.
15 He noted that having regard to the predominance of considerations of general and personal deterrence in relation to serious drug offences, personal circumstances would in any event generally be given very little weight and that the sentence to be imposed must be in proportion to the seriousness of the offending.
16 His Honour acknowledged that although the quantity involved here was 13.22 grams where Parliament had prescribed a limit of 2 grams, the weight and purity of the prohibited drug are not determinative. He referred to the submission that the sentence imposed upon the appellant should be suspended, with program requirements. However, he ultimately concluded that in view of the seriousness of the offence an immediate term of imprisonment was the only appropriate sentence. He said he had also considered the decision of the High Court in Dinsdale v The Queen (2000) 202 CLR 321 but had decided that he could not suspend the term and must order the term to be served immediately. He then proceeded to impose the sentence which I have mentioned.
Ground 1
17 The first particular advanced in support of this ground is patently untenable. The jury found the appellant guilty of the offence of possessing methylamphetamine with intent to sell or supply. That was the offence for which he was being sentenced. It was not a question of the respondent not relying on that intent. The respondent necessarily did rely upon it. Nor does the second particular have any merit. I do not consider his Honour's sentencing remarks can properly be construed as indicating
(Page 7)
- more than that the appellant was a person who had the drug in four separate amounts for the purpose of selling or supplying to others.
18 His Honour's reference to "large commercial venture" was to say he accepted the appellant's possession was not part of a large commercial venture. Ground 1 as particularised has no reasonable prospect of success on appeal. Leave to appeal is refused in respect of it.
Ground 2
19 This ground lacks merit for the reasons I have just expressed. I consider it highly unlikely that the Court of Appeal would be persuaded the sentencing Judge found it proved that the appellant's offending was part of a commercial venture, if what is meant by that is more than the sale or supply of those particular amounts of methylamphetamine to others. I would accordingly refuse leave to appeal on ground 2.
Ground 3
20 The appellant submits that the correct approach to the issue whether or not to suspend a sentence is first to discuss and arrive at what would be the appropriate term of imprisonment before discussing whether to suspend the sentence (Duong v The State of Western Australia [2006] WASCA 110 at [41]). The submission is that it is clear from Dinsdale that if the sentencing Judge concludes that an appropriate sentence of imprisonment is 16 months or less, then he or she must then take the second step of considering whether to suspend the sentence (see again Duong per Pullin JA at [40]).
21 Those submissions correctly state the law but the assertion upon which this ground depends is that his Honour took a legally incorrect approach and in my view that cannot be demonstrated. I appreciate that in his sentencing remarks his Honour referred first to his conclusion that an immediate term of imprisonment was the only appropriate sentence and then went on to refer to Dinsdale and his decision not to suspend the term. However, sentencing remarks are not to be read as an exercise in statutory construction.
22 What is required of a sentencing Judge is to have regard to all relevant considerations and all relevant sentencing options. The Sentencing Act 1995 (WA) itself required the term of imprisonment to be determined first. That must be so because suspended imprisonment is not to be imposed unless imprisonment for a term equal to that suspended
(Page 8)
- would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances (s 76(2) of the Sentencing Act).
23 Further, as a term or aggregate of more than five years cannot be suspended (s 76(1)), it is necessary for a sentencing Judge to know first how long the term or aggregate of terms would be in these circumstances.
24 I do not consider the Court of Appeal is likely to be brought to the conclusion that the sentencing Judge made an error of law as particularised. Leave to appeal must be refused on this ground.
25 Leave to appeal being refused on all three grounds in the appellant's case, the appeal is deemed to be dismissed (s 27(3) of the Criminal Appeals Act).
26 I would accordingly make the following orders:
(1) the application for extension of time is granted; time will be extended to 27 November 2006;
(2) leave to appeal will be refused on all three grounds;
(3) the appeal will be dismissed pursuant to s 27(3) of the Criminal Appeals Act 2004 (WA).
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