Crichton v The State of Western Australia

[2013] WASCA 196

CRICHTON -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 196

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 196
Court:	THE COURT OF APPEAL (WA)	Published:	26/08/2013
Case No:	CACR:156/2013	Heard:	16 AUGUST 2013
Coram:	MAZZA JA	Delivered:	16/08/13
No of pages:	5	Judgment Part:	1 of 1
Result:	Application granted
Category:	B
PDF Version

Parties:	RACHEL JADE CRICHTON THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Application for bail pending an appeal against sentencing Exceptional reasons
Legislation:	Nil
Case References:	Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 KWLD v The State of Western Australia [No 2] [2013] WASCA 129 Ness v The State of Western Australia [2012] WASCA 273

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CRICHTON -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 196 CORAM : MAZZA JA HEARD : 16 AUGUST 2013 DELIVERED : 16 AUGUST 2013 PUBLISHED : 26 AUGUST 2013 FILE NO/S : CACR 156 of 2013 BETWEEN : RACHEL JADE CRICHTON

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : CHIEF JUDGE MARTINO

File No : IND CAR 2 of 2013

Catchwords:

Criminal law - Application for bail pending an appeal against sentencing - Exceptional reasons

Legislation:

Nil

Result:

Application granted

Category: B

Representation:

Counsel:

Appellant : Mr P G Giudice
Respondent : Mr L M Fox

Solicitors:

Appellant : George Giudice Law Chambers
Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
KWLD v The State of Western Australia [No 2] [2013] WASCA 129
Ness v The State of Western Australia [2012] WASCA 273

MAZZA JA:

(These reasons were delivered orally and have been edited from the transcript)

1 This is an application for bail pending appeal against sentence pursuant to cl 4A(C) of sch 1 of the Bail Act 1982 (WA), or, alternatively, an urgent appeal order. The appellant must demonstrate that there are exceptional reasons why she should be granted bail. The relevant principles applicable to an application for bail pending appeal were explained by me recently in KWLD v The State of Western Australia [No 2] [2013] WASCA 129. Those principles do not need to be repeated here. They are well known and uncontroversial.

2 The appellant was sentenced in the District Court on 6 August 2013 to 9 months' imprisonment upon her fast-track plea of guilty to one count of possession of heroin with intent to sell or supply it to another.

3 The bare facts are these. On 12 November 2012, police executed a search warrant at the appellant's place of work in Carnarvon. There they found a total of 1.38 g of heroin, the purity of which is not known. A plastic bag was located containing 1.18 g of heroin, and the balance of 0.2 g, was divided into five separate smaller bags. The appellant cooperated with police during the search.

4 She was interviewed by police. She admitted that all the heroin was hers. She said that she was a heroin user and had obtained the drug on a recent trip to Fremantle.

5 The learned sentencing judge accepted that the appellant had purchased the drug for her own use. However, when she returned to Carnarvon and after being put under some pressure, particularly by a woman named Zoe, she formed the intention to sell the drugs in the five separate smaller plastic bags to others. In effect, his Honour's finding was that, of the 1.38 g of the drug, the appellant intended to traffic in 0.2 g.

6 At the time of her sentencing, she was 36 years of age. She has a short criminal history with only one prior drug offence, being an offence of possession of a prohibited drug for which she was given a small fine. Her personal life has been very difficult. It was described by the learned sentencing judge as a life of considerable hardship. He noted that the appellant had been the victim of serious crimes that commenced when she was a young child and, as a result, she had encountered difficulties and had become vulnerable to drugs, particularly heroin.

7 The appellant pleaded guilty at the earliest opportunity. The pre-sentence report noted that she was prepared to engage in drug rehabilitation programs and that she was suitable for community based programs. The learned sentencing judge noted all of these matters. He concluded that personal deterrence was not a factor of much relevance, but general deterrence was. He considered, but ultimately rejected, the imposition of a suspended imprisonment order. He did so on the basis that general deterrence made such an order inappropriate.

8 There are two grounds of appeal in the appellant's case, but they amount to the same thing. The appellant's claim is that the sentence was manifestly excessive, in that the wrong type of sentence was imposed: see Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54. The submissions before the learned sentencing judge were focused on the recent decision of this court in Ness v The State of Western Australia [2012] WASCA 273. In that case, by a majority, this court upheld a sentence of 12 months' imprisonment imposed on an offender who pleaded guilty to possessing 0.03 g of heroin with intent to sell or supply it to another.

9 As recognised by the prosecutor in the Court below, there are differences between Ness and the present case which appear to favour the appellant, but that is not the determinative issue in this appeal. For the ground to succeed, the appellant must demonstrate that the sentence imposed was plainly unjust or unreasonable.

10 Mr Giudice, on behalf of the appellant, has submitted that the present case was an unusual one. The factors which he said justify this characterisation are:

(1) the small amount of the drug, being the 0.2 g which the appellant intended to sell or supply to another;

(2) the finding that the appellant had not formed the intention to sell the drug until she had returned to Carnarvon from Fremantle;

(3) that she only formed the intention after she was placed under pressure by the person known as Zoe; and

(4) the lack of commerciality.

11 Mr Fox, on behalf of the respondent, has submitted that in light of the sentencing decisions of this court, notwithstanding the small quantity of heroin and, notwithstanding the general circumstances of the case, the only appropriate sentence was an immediate custodial term, and it is not strongly arguable that his Honour erred in imposing such a sentence.

12 This court has consistently said that in serious cases of drug dealing, ordinarily a term of immediate imprisonment must be imposed, but, of course, each case must be considered on its own facts and circumstances.

13 It is early days so far as this appeal is concerned. I have the benefit of the appellant's case and the transcript of the sentencing proceedings, but I have not had the benefit of all the other documents that were put before the sentencing judge or the respondent's considered submissions. Any impression I have as to the merit of this appeal is very much a tentative one, and is in no way binding and should not be seen as indicating how the appeal will ultimately be resolved.

14 A factor which is relevant in this case is that if bail is not granted in light of the short length of the sentence, even with an urgent appeal order, the appellant will have served a substantial period of the custodial term of that sentence. If the appeal was to succeed, it seems to me that the appeal would, in those circumstances, be largely, if not completely, nugatory.

15 That matter, combined with my initial impression as to the prospects of success of this appeal, leads me to the view that exceptional circumstances have been established as required under cl 4A, and I am prepared to grant bail. I point out that there has been nothing said which would indicate that the appellant is a flight risk or otherwise unsuitable for a grant of bail.