Bolton v The State of Western Australia
[2006] WASCA 120
•27 JUNE 2006
BOLTON -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 120
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 120 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:231/2005 | 12 APRIL 2006 | |
| Coram: | STEYTLER P WHEELER JA MCLURE JA | 27/06/06 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ALLAN WILLIAM BOLTON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law Disparity of sentence Interests of children taken into account |
Legislation: | Nil |
Case References: | Goddard v The Queen [1999] WASCA 281; (1999) 21 WAR 541 Nguyen v The Queen [2001] WASCA 119; (2001) 160 FLR 284 Nguyen v The Queen [2001] WASCA 72; (2001) 160 FLR 216 Dinsdale v The Queen (2000) 202 CLR 321 Krakouer (1999) 107 A Crim R 408 Latham (2000) 117 A Crim R 74 McKeagg v The Queen [2006] WASCA 26 Mortimer v The Queen, unreported; CCA SCt of WA; Library No 970526; 14 October 1997 Newburn v The Queen [2004] WASCA 108 Schuster v The Queen unreported; CCA SCt of WA; Library No 970180; 23 April 1997 Tisalandis v The Queen [1982] 2 NSWLR 430 Urquhart v The Queen unreported; CCA SCt of WA; Library No 950484; 13 September 1995 Van de Worp v The Queen [2000] WASCA 154 Weston v The Queen [2000] WASCA 188 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BOLTON -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 120 CORAM : STEYTLER P
- WHEELER JA
MCLURE JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'SULLIVAN DCJ
File No : IND 536 of 2004
Catchwords:
Appeal - Criminal law - Disparity of sentence - Interests of children taken into account
(Page 2)
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr M T Trowell QC
Respondent : Mr J Mactaggart
Solicitors:
Appellant : Thames Legal
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Goddard v The Queen [1999] WASCA 281; (1999) 21 WAR 541
Nguyen v The Queen [2001] WASCA 119; (2001) 160 FLR 284
Nguyen v The Queen [2001] WASCA 72; (2001) 160 FLR 216
Case(s) also cited:
Dinsdale v The Queen (2000) 202 CLR 321
Krakouer (1999) 107 A Crim R 408
Latham (2000) 117 A Crim R 74
McKeagg v The Queen [2006] WASCA 26
Mortimer v The Queen, unreported; CCA SCt of WA; Library No 970526; 14 October 1997
Newburn v The Queen [2004] WASCA 108
Schuster v The Queen unreported; CCA SCt of WA; Library No 970180; 23 April 1997
(Page 3)
Tisalandis v The Queen [1982] 2 NSWLR 430
Urquhart v The Queen unreported; CCA SCt of WA; Library No 950484; 13 September 1995
Van de Worp v The Queen [2000] WASCA 154
Weston v The Queen [2000] WASCA 188
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1 STEYTLER P: I would dismiss the appeal for the reasons given by Wheeler JA, with whom I agree.
2 WHEELER JA: The appellant and his co-offender, Ms Hayley, were both convicted after trial of the offence of manufacturing methylamphetamine.
3 The charge arose when a search warrant executed at their house (they being in a de facto relationship of some 12 years' standing) resulted in the finding of items of equipment and ingredients capable of being used in the manufacture of methylamphetamine. Some of the equipment bore traces of methylamphetamine. According to the evidence of an expert witness, accepted by the learned sentencing Judge, it would be reasonable to expect that the ingredients available could have led to the manufacture of some 20 grams of methylamphetamine of very high purity; that is, 80 to 90 per cent purity. There were further items sufficient to make another 3.8 grams of high purity methylamphetamine.
4 So far as culpability was concerned, his Honour formed the view that there was nothing which would enable him to differentiate between Bolton and Hayley. It was not said, and his Honour did not find, that one partner, for example, led the other into the offence or influenced the other in some way, so as to justify the view that one was more culpable than the other.
5 So far as their antecedents were concerned, the appellant had a record of offending which included a variety of offences which, judging from the penalty imposed in each case, must have been of a minor nature, including hindering police, giving false name and address, common assault and the like. There was also a significant number of driving offences. However, he had not been convicted of any drug-related offence in the past and a number of his convictions were regarded by his Honour as "stale". For practical purposes, Hayley was, in his Honour's view, to be dealt with as if for her first conviction for a drug-related offence, notwithstanding that she was convicted earlier in that year of importing a prohibited substance (pseudoephedrine).
6 While his Honour did not regard the offences as falling within the category of the most serious cases of the kind, he noted certain serious aspects to them. They were the quantity of methylamphetamine which could reasonably be expected to have been produced, and that the operation in which the offenders were engaged was "an ongoing operation" in the sense that it was conducted over a significant period of
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- time. His Honour also noted that operations to manufacture methylamphetamine were often difficult to detect. His Honour went on to say:
"Against that background the factor of deterrence is an important matter to consider and the conclusion that I have come to is that there is no doubt that imprisonment is the only appropriate sentencing option here. In my opinion in all the circumstances it would have been appropriate to take the view that you should each be sentenced to terms of imprisonment of five years before the amendments to the Sentencing Act."
"Having said that it remains to consider the issue of suspension of the terms of imprisonment which you should serve."
8 When his Honour considered the issue of suspension, he did so having regard to the information before him concerning the children of the appellant and his co-offender. There were four children of the relationship. They were, at the time of sentencing, aged 10, 8, 5 and 4 years of age. Ms Hayley had been the primary caregiver of the children, although both offenders were engaged in their care.
9 At the time of sentencing, the children were in the care of the appellant's 21-year-old niece at an establishment described as a "backpackers". The niece had come from Queensland to assist during the course of the trial, and was due to return to Queensland shortly. The appellant and Ms Hayley lived in Geraldton. They had no family members to whom they could turn to provide care for the children. The offenders were described in the oral pre-sentence report as an isolated couple. In the event that both were imprisoned, it would therefore be necessary for the children to be put in a foster placement, and, because there were four of them, it was highly likely that they would be separated from each other. The Community Corrections Officer who gave the pre-sentence report observed that there appeared to be great difficulty for both the appellant and Ms Hayley in accepting that they might not go home. They both regarded the need to go home (in part, because of the children, and in part apparently because of the appellant's business obligations) as being so important that it could not be overridden by anything, including apparently the consequences of their offending.
(Page 6)
10 Against that background, his Honour referred to the sentencing principles appropriate to the exceptional case where the imprisonment of an offender would have very serious consequences for young children or other dependants. His Honour said, in relation to that, the following:
"What must be balanced, of course, is the seriousness of the offence and the public interest in punishing wrongdoers and deterring crimes of this kind against the personal circumstances of the offenders and the effect of a sentence of immediate imprisonment upon the interests and welfare of the children.
In this case, as I have already observed, the children are very young and it's well known that parental bonds, perhaps particularly the bond between a mother and a young child, is of great importance and any breach of it has the potential to cause significant harm of an emotional or psychological kind. It seems to me that in this case the appropriate term which ought to be served would be such as to deprive the children of their parents for a significant time. If the appropriate term of 40 months was served then there could be no eligibility for parole for half of that time.
In my view in the case of Ms Hayley it is appropriate to take the view that the sentence imposed upon her should be suspended and I direct that it ought to be suspended for a period of two years. In the case of Mr Bolton, I am of the view that it's not appropriate to suspend sentence. It seems to me that, faced with the invidious choice of which parent should be at liberty to look after the children, I have had to come to the conclusion that it ought to be the mother.
The absence of a father from the lives of his children for a time will no doubt have detrimental effects in itself but it's not possible, I think, to take the view that it would [be] so detrimental as to justify suspension in his case as well."
11 The result was therefore that the appellant was sentenced to 40 months' imprisonment with parole eligibility, while Ms Hayley was sentenced to 40 months' imprisonment, wholly suspended for a period of 2 years.
12 The appellant appeals against his sentence on the basis that the sentence imposed on him was "so disparate with that imposed upon his co-accused … as to amount to a miscarriage of justice". The relevant
(Page 7)
- authorities dealing with the issue of disparity in sentencing were discussed in considerable detail in Goddard v The Queen [1999] WASCA 281; (1999) 21 WAR 541, per Kennedy J, at [17] - [31] inclusive. I accept his Honour's useful summary and do not repeat it here. However, there are two aspects of the "disparity principle" which emerge from his Honour's discussion, which it is important to highlight in the present case. The first is that a disparity in sentence between co-offenders may attract the intervention of an appellate court only where it is such as to give rise to a "justifiable sense of grievance". Another way that inappropriate disparity is sometimes described is that it is disparity which would give an appearance of injustice to an "objective bystander". The intervention of an appellate court is not warranted unless a disparity of that kind emerges. The second point of importance is that, even where there is such disparity, it does not necessarily follow that a Court will reduce a higher sentence so that it equates in all respects to the sentence imposed on a co-offender. Rather, it is a matter to be taken into account in the exercise of a broad discretion (Goddard at [31]).
13 The disparity of which the appellant complains is that, having imposed what would otherwise be an entirely appropriate sentence upon the appellant, his Honour did not suspend that sentence so as to reproduce exactly the sentence imposed upon Hayley. Hayley's sentence was suspended, resulting in what would otherwise be an inappropriately lenient disposition, so that the appellant's children would not be entirely deprived of parental care, and placed into the care of strangers, at a very young and vulnerable age. This was a disposition which was merciful not only to Hayley, but also, to a lesser extent, to the appellant, in that there was not added to the burdens of imprisonment the knowledge that he had by his own actions created extraordinary and potentially damaging hardship and difficulty to his children.
14 The appellant does not suggest that his Honour erred in finding that, on the information available to him, it was appropriate to conclude that the bond which the children had with their mother was at that time of their lives of more significance than the bond which they had with him. That would appear to follow from the report which indicated that she was at that time their primary caregiver.
15 What, then, would be the response of an objective bystander to the appellant's claim that the wholly inadequate disposition imposed upon Hayley, by reason of the otherwise serious consequences for the four innocent children, required that the appellant also should, in the interests of justice, receive a wholly inadequate sentence for his offence? "You
(Page 8)
- must be joking", seems to me to be the probable, and reasonable, reaction. The appellant's sentence was well within the range appropriate to his offence. The result of the merciful disposition in respect of his de facto spouse was that his children have been saved from what would otherwise be the consequences of their parents' joint offending. In those circumstances, it is my view that any sense of grievance which the appellant may feel could not be regarded as justifiable.
16 I am fortified in that conclusion by the authority to which the learned sentencing Judge referred in the course of his sentencing remarks, Nguyen v The Queen [2001] WASCA 72; (2001) 160 FLR 216, and Nguyen v The Queen [2001] WASCA 119; (2001) 160 FLR 284). That, too, was a case in which there was a de facto couple convicted of a very serious offence, and having four children, although the children were mostly older than the children in question here. Those offenders also appear to have been socially isolated. Each was initially sentenced to a term of immediate imprisonment, the father to a term of 12 years and mother to one of 8 years, with the disparity in that case arising from the different roles which they played in the relevant offence. On an appeal by the mother, and having called for and considered a pre-sentence report, the Court set aside the sentence of imprisonment imposed on the mother and substituted for it an order pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth). The Court does not appear to have considered that, in doing so, it would be giving rise to any unjustifiable disparity between that disposition and the sentence imposed upon that appellant's de facto husband.
17 I would dismiss this appeal.
18 MCLURE JA: I agree with Wheeler JA that the appeal should be dismissed because the disparity between the sentence imposed on the appellant and his co-offender cannot, in the unusual circumstances of this case, give rise to a justifiable sense of grievance.
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