"C" v Hampson
[2005] WASC 227 (S)
"C" -v- HAMPSON & ORS [2005] WASC 227 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 227 (S) | |
| Case No: | SJA:1060/2005 | 10 OCTOBER, 14 NOVEMBER 2005 | |
| Coram: | SIMMONDS J | 28/10/05 | |
| 14/11/05 | |||
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Sentence reduced from 2 years to 21 months | ||
| B | |||
| PDF Version |
| Parties: | "C" CLINT JAMES HAMPSON ROBERT JAMES TALBOT LAWRENCE MELISSA AMY RIMMER CADE ANDREW EVANS PAUL ANTHONY WHITE |
Catchwords: | Criminal law and procedure Sentencing Offender sentenced to 2 years' imprisonment on pleas of guilty to property, fraud and traffic offences Reduction in sentence for offender's co-operation with police |
Legislation: | Sentencing Act 1995 (WA), s 8(5) |
Case References: | Barany v The Queen [2000] WASCA 240 C v Hampson & Ors [2005] WASC 227 Marker v The Queen [2002] WASCA 282 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 14 NOVEMBER 2005 FILE NO/S : SJA 1060 of 2005 BETWEEN : "C"
- Appellant
AND
CLINT JAMES HAMPSON
ROBERT JAMES TALBOT LAWRENCE
MELISSA AMY RIMMER
CADE ANDREW EVANS
PAUL ANTHONY WHITE
Respondents
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR F CULLEN SM
File No : PE 55283 of 2004, PE 55380 of 2004, PE 55381 of 2004, PE 13525 of 2005, PE 13526 of 2005, PE 13559 of 2005, PE 13561 of 2005, PE 13562 of 2005, PE 13563 of 2005, PE 13564 of 2005, PE 13565 of 2005, PE 13566 of 2005, PE 13567 of 2005, PE 15818 of 2005, PE 15819 of 2005, PE 15820 of 2005,
(Page 2)
- PE 15821 of 2005, PE 15822 of 2005, PE 15823 of 2005, PE 17252 of 2005
Catchwords:
Criminal law and procedure - Sentencing - Offender sentenced to 2 years' imprisonment on pleas of guilty to property, fraud and traffic offences - Reduction in sentence for offender's co-operation with police
Legislation:
Sentencing Act 1995 (WA), s 8(5)
Result:
Sentence reduced from 2 years to 21 months
Category: B
Representation:
Counsel:
Appellant : Mr A J Robson
Respondents : Mr P D Yovich
Solicitors:
Appellant : Legal Aid Western Australia
Respondents : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Barany v The Queen [2000] WASCA 240
C v Hampson & Ors [2005] WASC 227
Marker v The Queen [2002] WASCA 282
(Page 3)
Case(s) also cited:
Nil
(Page 4)
1 SIMMONDS J: These are the reasons for and content of my decision on sentence which is to be read with my previous decision in this matter, "C" v Hampson & Ors [2005] WASC 227. These proceedings are being held in open court, because of the final character of the sentencing they represent. The matter comes up before me subsequent to the delivery of my decision on the previous occasion, for the reasons that appear in the decision itself, and that were discussed with counsel at the time of the delivery of judgment on 28 October 2005.
2 On that occasion it was concluded on all sides that an opportunity should be provided to counsel for further information and submissions to be provided to me on the matter of the assistance that the appellant may have provided to authorities. This would be for the purposes of my making a final determination as to the appropriateness and extent of any reduction of sentence under the Sentencing Act 1995 (WA), s 8(5). That provision is set out in full in my judgment at [35] of my reasons delivered on 28 October 2005.
3 The background in this matter appears in my previous decision. It is sufficient to say that the appellant had appeared originally before the learned Magistrate, from whose decision the appeal to me had been taken, on no less than 37 charges relating to events over various dates from 30 April 2004 to 8 March 2005. The charges related to a range of offences, principally property related, of stealing, fraudulently obtaining property and the like, as well as driving without a licence and driving at a speed above the applicable limit.
4 The appeal before me was as to the sentence of imprisonment totalling 24 months. On 20 of the 37 charges the learned Magistrate had imposed a sentence that was not backdated, and in respect of which there was no eligibility for parole. For the reasons given in my previous decision I concluded that all three of the grounds of appeal had been made out, that is to say, that the Magistrate had not properly considered the question whether or not to provide for a reduction in sentence for assistance the appellant may have provided to authorities, he had erred in not backdating the sentence to the time at which the appellant had entered custody, and he had erred in the approach that he took to the matter of the making of a parole eligibility order.
5 I was able in my decision to indicate the sentences and their combination at which I would arrive, in the absence of further opportunity to consider the assistance the appellant had provided to authorities. I also indicated that the sentence, whatever it was, whether what was (in effect)
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- the original sentence, upheld after that further opportunity, or any reduced sentence, should be backdated as indicated in the judgment, and that the appellant should be eligible for parole in respect of that sentence.
6 At the hearing today I had the opportunity to hear from the detective who had been involved with the appellant in respect of his original charges and to whom the appellant had indicated his preparedness to provide assistance to authorities (including providing both forms of actual assistance, to which I will refer shortly), and who provided some information to the learned Magistrate at the hearing before him. What the detective said then that is probably most material is set out in my previous decision at [28].
7 I also heard from the appellant, and I had the benefit of an agreed statement of material facts. However, it was a statement that did need to be supplemented, as was put to me by counsel for the respondent, by reference to material from the police officer in question and from the appellant.
8 Finally, I had the benefit of most helpful submissions from both counsel.
9 The applicable law in relation to the disposition of the matters before me at the hearing today, as to process, appears most usefully, in my view, in the judgment of Murray J in Marker v The Queen [2002] WASCA 282, a judgment with whom the other members of the court, it seems to me, substantially agreed. I refer particularly to [20] – [22] of that judgment. There his Honour reminds sentencing officers in the position in which I find myself of Sentencing Act s 15, having to do with the information that can be drawn upon when determining the proper sentence to be imposed, and reminding sentencing officers that the strict rules of evidence do not apply. As well in that judgment at that place his Honour reminds sentencing officers such as myself in this position that mitigating factors, which I would insert relate to any reduction in sentence on account of assistance to the authorities, must be established, if challenged, by the offender or on his behalf on the balance of probabilities.
10 The challenge of course has to do with a challenge being made to the position as to reduction put to me by counsel for the appellant. The challenge was provided in terms of the need for a close examination of what was being relied upon as well as placing that in a larger context. I will explain both in a moment.
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11 As to the law as to what I should do with what the process provides me, this is set out in my judgment delivered on 28 October last at [36] - [42].
12 By virtue of the helpful submissions of counsel today, to which I have referred, it became evident that the issue before me that I needed to consider, in the light of the material being put to me from the police officer in question and from the appellant, was not the lack of genuineness in what assistance the appellant had provided to authorities. This is subject to a point that I will return to below, because there was one matter of genuineness to which my attention was particularly drawn.
13 The issue is rather, subject to that qualification, whether the information is such as could significantly assist the authorities. This is a matter of importance, whether in evaluating genuineness, or as a separate factor, that emerges from the authorities that I refer to at [40] of my previous reasons. It seems to me that this is clear enough as well from Sentencing Act s 8(5), which makes it plain, I think, that assistance could be provided to law enforcement authorities and yet no reduction in sentence be allowed for. There is, in other words, something more to assistance than simply providing something that is recognisably such. At the same time, the assistance need not have borne tangible fruit. This is clear from the authorities to which I have previously referred.
14 This then brings me to the information that was before me and what I have concluded from that information. The information that I have before me, putting together both what the police officer in question indicated, and what the appellant indicated, is that the forms of assistance and the response to those forms were as follows. There was the provision of a brief description and an address of a man from whom the appellant indicated to the police officer in question, the appellant had received certain stolen cards. There was also the provision to that police officer of information, in the form of a description and a first name and nickname, about a man (it was not clear to me whether it was the same man or a different man – I do not think, in the final analysis, that it is material for my purposes which is the case) who was supplying amphetamines from a house, the same house it seems or at least a house for which an address had been provided, an address to which police took the appellant for preliminary purposes where the appellant had stayed at some point in the past for a couple of days.
15 The police response to this information, some three or four weeks later, was, on a search warrant, to visit the house. There were people
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- present in the house at that time. The search turned up some drug paraphernalia, at least in the form of syringes with some traces on them that the police might have examined more closely but for the discovery of a powdery substance, apparently of about 40 grams, in a container of some sort found in a sports bag in a commonly used bedroom in the house.
16 The contents of the container were analysed by the police and proved not to be an illicit substance, as a result of which further analysis on other material found at the house was not performed. It is also important to note that there was no paraphernalia associated with production or supply of drugs found at the house.
17 The second form of assistance was in the form of an undertaking to assist that was registered by the police, a registration that was subsequently cancelled when the appellant was not released to bail or in any other form enabled to re-enter the community.
18 The final form of assistance was information that the appellant provided from prison sometime subsequently to the other forms of assistance. It concerned another prisoner "looking at" a heroin importation transaction. That other prisoner was named. He was in fact a person known to the police for his involvement in drug related activity. The information led the police to check his known associates, but they were so numerous that it was not possible to proceed further on that front.
19 The police, as a second form of reaction to this information, asked the appellant to pursue inquiries, if the appellant was able to, of the named person, to secure more detailed information, such as timing or flight arrival or similar details. However, the appellant was unable to act on this because of the transfer of the person concerned to another prison.
20 There was, as I said, no question at least as to the genuineness of the information undertaken to be provided, by which I would understand undertaken at the point of registration to be provided. I am a little less certain as to the concession made with respect to the information concerning the other prisoner.
21 However, a question was at least raised as to the genuineness of the information supplied as to the alleged drug supplier, because of the relatively limited character of the information and what it failed to yield. However, I am not able to conclude that the information so provided has not been established as genuine, recognising upon whom the burden of proof falls and the standard of proof in question. The burden of proof
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- of course falls on the appellant and it is at the balance of probabilities. I note for the purpose of this finding the seriousness with which the authorities took the information, including driving the appellant to the scene, obtaining and executing a search warrant, analysing what they found, and, before that analysis had produced its results, supporting the early release of the appellant before the learned Magistrate, whether to bail, or on a community based order as a final sentencing disposition.
22 The issues then, as I have indicated, arises of whether the threshold that information or assistance must meet before it can be considered as appropriately reducing the sentence otherwise applicable, that the assistance could be of significance in assisting authorities, has been met.
23 Here in determining this question it is relevant for me to consider what the police did. I have already referred to this in relation to the drug provider. I have also referred to the registration as subsequently cancelled and I have also referred to what the police did when the appellant supplied the information he did while in prison.
24 I note that the fact that a person may find himself in conditions that prevent him offering better than the information or other assistance he was able to provide does not lower the threshold. The threshold, as it seems to me, is an objective one.
25 Nor is it conclusive that the police decide to act on the information. Much depends, in my view, on such matters as what the police did, what the police found, even if what they found ultimately turns out to be of no assistance, and the position that the police take in the proceedings themselves.
26 Here it is significant for me that action was indeed taken by the authorities in at least four forms in relation to assistance the appellant provided or indicated he would provide to them. Those forms were obtaining, and I would include within this executing, a search warrant; examining or performing analysis of what they found, which included not only the powdery substance but also certain drug paraphernalia, even if that did not lead itself to analysis; the support that they offered the appellant, indeed that they volunteered at the hearing before the learned Magistrate, although that support was on incomplete information and was not followed up in a similar vein before me; and continued dealing with the appellant subsequently while the appellant was in custody.
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27 I conclude from all of this, not without some difficulty, that the threshold has been met in this case and that some reduction in sentence could, indeed should, be appropriately made.
28 It was put to me by counsel for the appellant that 25 per cent might be the appropriate figure, although 50 per cent was also to be found in the authorities.
29 It seems to me that neither is appropriate in this case. This is not one where the assistance bore fruit, even to the extent of the launching of proceedings. It is also not a case like Barany v The Queen [2000] WASCA 240, where there was a 25 per cent reduction upheld on appeal as within the range for the appropriate exercise of discretion. There the assistance was direct involvement in a particular transaction the subject of an ongoing inquiry, where there was a strong element of immediate risk to the person providing that form of assistance from those seeking to complete that transaction without being detected.
30 The reduction that in all the circumstances it seems to me to be appropriate to apply here is one of three months of the overall sentence. This would mean that the overall sentence would be reduced from 24 months to 21 months. The way this is to be achieved is by the reduction of that sentence of 12 months for fraudulent obtaining which is to be served cumulatively, that is on complaint PE 13565/05, from 12 months to 9 months.
31 The other sentences and the combination of all the sentences would remain the same. As my original decision indicated, the 21 months needs to be backdated to the date when the appellant entered custody. The appellant is also eligible for parole in respect of the sentence, as indicated in that decision.
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