De Jesus v The Queen
[2000] WASCA 128
•12 MAY 2000
DE JESUS -v- THE QUEEN [2000] WASCA 128
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 128 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:122/1999 | 4 FEBRUARY 2000 | |
| Coram: | PIDGEON J WALLWORK J MURRAY J | 12/05/00 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| PDF Version |
| Parties: | MANUEL FILISBERTO DE JESUS THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Allowance for time spent in custody before sentence The offence of possession of heroin with intent 8 years imprisonment upheld Eligibility for parole considered |
Legislation: | Sentencing Act 1995 (WA), s 87 |
Case References: | El-Ali v R, unreported; CCA SCt of WA; Library 940506; 14 September 1994 Jarvis v The Queen (1993) 20 WAR 201 Palmer v The Queen [1999] WASCA 253 R v Jones, unreported; SCt of WA; Library No 970210; 7 May 1997 Thompson v The Queen (1992) 8 WAR 387 Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 House v The King (1936) 55 CLR 499 La Rosa v R, unreported; CCA SCt of WA; Library No 960628; 31 October 1996 Quach v The Queen [1999] WASCA 210 R v Cottrell (1989) 42 A Crim R 31 R v Weng Keong Chan (1989) 38 A Crim R 337 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : DE JESUS -v- THE QUEEN [2000] WASCA 128 CORAM : PIDGEON J
- WALLWORK J
MURRAY J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Allowance for time spent in custody before sentence - The offence of possession of heroin with intent - 8 years imprisonment upheld - Eligibility for parole considered
Legislation:
Sentencing Act 1995 (WA), s 87
Result:
Leave to appeal refused
(Page 2)
Representation:
Counsel:
Applicant : Mr R W Cannon
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Gunning
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
El-Ali v R, unreported; CCA SCt of WA; Library 940506; 14 September 1994
Jarvis v The Queen (1993) 20 WAR 201
Palmer v The Queen [1999] WASCA 253
R v Jones, unreported; SCt of WA; Library No 970210; 7 May 1997
Thompson v The Queen (1992) 8 WAR 387
Case(s) also cited:
Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
House v The King (1936) 55 CLR 499
La Rosa v R, unreported; CCA SCt of WA; Library No 960628; 31 October 1996
Quach v The Queen [1999] WASCA 210
R v Cottrell (1989) 42 A Crim R 31
R v Weng Keong Chan (1989) 38 A Crim R 337
(Page 3)
1 PIDGEON J: I agree with the reasons of Murray J. I would for these reasons refuse leave to appeal.
2 WALLWORK J: On 25 May 1999 the applicant in this matter was sentenced to 4 years imprisonment for each of two offences. The sentences were ordered to be served cumulatively. There was no order that the applicant would be eligible for parole. He now applies for leave to appeal against the sentences.
3 The offences were firstly that on 30 April 1998 at Willagee the applicant and another had in their possession a quantity of heroin with intent to sell it to another and secondly that on the same date at Ardross, the applicant had in his possession a quantity of heroin with intent to sell or supply it to another. The applicant pleaded guilty to the charges.
4 The facts given to the learned Judge with respect to the first offence were that arrangements had been made by a co-accused for the purchase of heroin by a third person. That sale was to take place on 30 April 1998. It was to involve 43 grams of heroin at a price of $20,000. At about 4 pm on that afternoon, the co-accused met the buyer and was shown the money. A short time later, detectives approached the co-accused and the applicant whilst they were talking to the buyer. On observing the police, the applicant threw a plastic bag under the buyer's vehicle. It was later ascertained that that bag contained approximately 41.5 grams of heroin. Video records of interview were conducted with the applicant but he made no admissions in relation to that offence.
5 The second offence related to heroin found after the execution of a search warrant on the same day at the applicant's residence in Ardross. Whilst searching the rear yard the detectives located approximately 74 grams of heroin buried in a plastic container. The heroin was separated into 1 gram lots. There was a further 7 grams of heroin in the kitchen area of the house.
6 The learned Judge was informed that there had been no relevant time spent in custody by the applicant as he was then a sentenced prisoner with an earliest release date of 10 August 2000. The learned Judge was informed that the applicant had been on parole at the time of committing the offences and that he "owed" about 2000 days parole time. His Honour was informed that if the applicant served two years in the community on parole, then the 2000 days would be extinguished, but the fact was that the applicant had been unable to clear those days on previous releases. It was suggested if a finite sentence was imposed, it could run concurrent with
(Page 4)
- the breach of parole days so that effectively the applicant would extinguish the days which he owed the Parole Board. It was suggested to the court that it would be a rather futile exercise to add further parole days to those already "owed" by the applicant.
7 The learned Judge was advised that the strength of the heroin ranged from 30 per cent to 63 per cent. It was suggested by counsel for the applicant that the sum for the purchase of the heroin was $15,000 and not $20,000. It was suggested that the applicant had been a courier and had been intending to take the heroin to the place where he was arrested and then take the money back to the other person. That was where his involvement was going to end. It was suggested that the applicant might have received a small amount of heroin for his own addiction. That it was a case of someone dealing in heroin to support his own habit as distinct from acting for pure financial gain.
8 A doctor's certificate was produced which showed that the applicant had attended the doctor's surgery in October, November and December 1997, prior to the offences in April 1998, seeking help to deal with his addiction to heroin. There was another certificate from a herbal clinic to the effect that the applicant had visited that clinic in March 1998 seeking help for heroin withdrawal. There was a certificate from a second doctor that the applicant had attended him in April 1998 prior to the offences, seeking help to get off heroin.
9 Counsel told the learned Judge that in 1985 the applicant had been convicted of a number of offences. He had remained in prison until 1993, during which time he had become addicted to heroin. After his release he was again convicted in 1996 in relation to amphetamine charges. He was released from prison in October 1997 but was still addicted to heroin. It was during that time that he went to see the two doctors. It was said that he had also attended a drug unit seeking assistance for his problem.
10 After these presently relevant offences had been committed, the applicant was released on bail on 15 May 1998. He was then returned to custody on a warrant for commitment from the Parole Board. His parole was suspended on 29 May 1998. On 10 August 1998 he was again released on parole but on 26 August 1998 he was returned to custody, after having been charged with further offences.
11 The applicant had remained in custody from 26 August 1998 until his sentencing plea was made on 21 May 1999. The alleged offences committed in August 1998 had been driving under suspension and possession of heroin. The applicant pleaded guilty to driving under
(Page 5)
- suspension. He was found not guilty of the charge of the possession of heroin in early January 1999. The learned Judge was told that after his return to custody on 26 August 1998 the parole had remained suspended. It was not cancelled.
12 It was submitted to the learned Judge in May 1999 that he had authority to backdate the sentence for the presently relevant drug offences. Also, that the pleas had been made before the trial date, although they were not early pleas. It was submitted that the fact that the applicant was an addict and that there had been an element of entrapment in the offences, should bring the length of the sentence down.
13 On the other hand it was submitted for the Crown that no time had been spent in custody with reference to the presently relevant matters which were before the learned Judge on 21 May 1999. This was because it was said that the applicant had been in custody since 26 August 1998 due to a suspension of his parole. It was also submitted for the prosecution that the value of the heroin of which the applicant had been in possession had been $20,000. The defence counsel had submitted that it was $15,000. It was said that in any event it was a significant amount of heroin. Further, there was the additional 74 grams of heroin which had been found at the house. It was submitted that the applicant had had a commercial intent with respect to the heroin.
14 With respect to the first count it was said for the prosecution that the applicant had been directly involved in the sale of the drug to an undercover officer. With respect to the heroin found at the house, there had been drug paraphernalia found during the search. That paraphernalia had included scales, balloons, etc. The buried heroin had been made up into 1 gram lots. It was submitted that that heroin was ready for sale. It was pointed out that the applicant had been on parole when he had committed the offences. Parole eligibility was opposed.
15 With respect to the alleged entrapment, the applicant's counsel stated that the submissions made in that regard were made on the basis that the initial approach had been made by a police officer. The submission was repeated that the applicant was to receive a payment in kind.
16 On 27 May 1999, the learned Judge told the applicant that following an undercover police operation he had firstly been caught red handed with 41.5 grams of heroin in his possession. The trafficable quantity was 2 grams. Later, following the execution of a search warrant at his home, a further 70 grams approximately of heroin had been discovered in 1 gram
(Page 6)
- lots. At the time he had been apprehended the applicant had been selling heroin for approximately $15,000. His Honour said it would be fair to describe the applicant as a person who had been dealing in heroin in a significant sense: "Perhaps what might be described as a mid-level range."
17 His Honour said that the applicant was 41 years of age, a mature offender with a lengthy criminal history who had spent substantial periods of his life in prison. The applicant had had at least eight experiences of imprisonment in the past. On 31 July 1996 he had been sentenced to 2 years imprisonment for possession of amphetamines. His Honour noted that the applicant had no previous convictions for possession or dealing in heroin. His Honour accepted that the applicant used heroin. His Honour took note of the fact that Dr Nelson had said that he had seen the applicant on four occasions in respect of heroin dependency and that Dr Troy had also seen him. Further that he had been interviewed at a herbal clinic in March 1998.
18 His Honour said that in view of the number of days which the applicant owed the Parole Board, he would not accept that he had been in custody only with respect to the offences he was about to sentence him for. His Honour said he had not been asked to conduct a trial of the issue concerning whether the applicant had been in the possession of the drug "as a mere courier":
"… but it seems to me that even if your role was as you say, which I very much doubt considering the way you appear and come across on the video, it does not change the fact that you had this heroin in your possession and that you intended to sell it to others and of course, in respect of the 41 grams, you were apprehended in the act of doing precisely that. As a passing observation I would also say that you were very unconvincing on those points in your video explanation but I don't think it really makes a great deal of difference".
19 His Honour said he thought the time had passed when the applicant was a realistic proposition so far as parole goes, given his age and his history. His Honour referred to the decision of El-Ali v R, unreported; CCA SCt of WA; Library 940506; 14 September 1994, where he said a person was convicted on his plea of possession of 198 grams of heroin, containing 139 grams of pure heroin. His Honour compared the applicant's possession of heroin "of the order of 110 or so grams" containing something like 60 grams of pure heroin. He pointed out that Mr El-Ali had pleaded guilty on the fast track system and had ultimately
(Page 7)
- received 8 years imprisonment. Mr El-Ali had had little, if anything, in the way of prior convictions, as opposed to the applicant.
20 His Honour said that in the applicant's case a starting point would be in the order of 10 to 11 years imprisonment. He took into account the pleas of guilty prior to the trial. He sentenced the applicant to two sentences of 4 years imprisonment to be served cumulatively. His Honour declined to make an order for eligibility for parole. He directed that the aggregate sentence commence from 25 May 1999.
21 After the applicant had been sentenced, his counsel wrote to the learned Judge and said that he had been misinformed that the applicant had been on parole in respect of offences for the possession of amphetamines at the time of the commission of the presently relevant offences. The fact was that the parole had been for sexual offences which had been committed in the mid-1980s. The applicant had been sentenced for the amphetamine offences with no order for parole. After he had been charged with the present offences, he had been returned to custody on 29 May 1998. His parole had been cancelled until he had been re-released on 10 August 1998. That parole had then been suspended on 25 August 1998 after he had been charged with the possession of heroin and driving under suspension.
22 It was submitted for the applicant that he had spent 347 days in custody relative to the offences for which he had been sentenced, being 73 days between 29 May 1998 and 10 August 1998 and 274 days after the suspension of parole on 25 August 1998.
23 The learned Judge was later told that the applicant had been released on a new parole order on 10 August 1998 and that that meant that contrary to the information provided earlier, the applicant did not "owe" 2000 days to the Parole Board because he had not breached that new parole order. He had been serving a period of suspension after his return to prison on 26 August 1998 which would last for 2 years and which would be consumed within the 8 year sentence the applicant had received on 25 May 1999.
24 A letter dated 7 October 1999 from the Sentence Information Unit states that on 10 August 1998 the applicant had been released on a new parole order which had been "executed" on 27 August 1998, giving an earliest release date of 10 August 2000. On 25 May 1999, a total of 8 years imprisonment without parole eligibility had been imposed for the presently relevant offences which had been committed in April 1998. The
(Page 8)
- applicant had therefore not breached the parole order issued on 10 August 1998. It was said:
"Please note a parole breach cannot be effected on a previous release order if a new parole order in relation to the same offences has been issued. Mr De Jesus currently therefore does not have any breach of parole days owing. The 8 year sentence with remission provides for release on 6 October 2004. Therefore the 8 year non-parole term currently being served 'overrides' his parole suspension term expiring 10 August 2000 which is the effective sentence for release date calculation."
26 In addition to the matters put to the learned sentencing Judge, it was submitted to this Court that when counsel for the applicant had told the sentencing Judge that he was not asking that the applicant be considered for parole eligibility, he had been acting on incorrect information, that being that the applicant owed approximately 2000 days to the Parole Board. It was submitted that at the present time due to the fact that the applicant had been released on a new parole order on 10 August 1998 for a period of 2 years, he would not be subject to parole when he was released after the expiration of the present aggregate term of 8 years imprisonment.
27 The correct parole situation is that after the applicant had been released on the fresh parole order on 10 August 1998, that order was suspended on 27 August 1998 due to the fact that the applicant had been remanded in custody on 26 August 1998 on charges of driving without a licence and possessing heroin. Those offences were allegedly committed on 20 August 1998.
28 The heroin charge was dismissed in the Fremantle Court of Petty Sessions on 12 January 1999. This Court has been advised that as there was no confirmed accommodation for his release on 11 February 1999 the Parole Board did not approve the applicant's release on parole at that meeting. On 11 March 1999 the Board again deferred the release of the applicant due to concerns over an incident in the prison when the applicant had allegedly attempted self-harm whilst under the influence of an illegal substance. No further action was taken by the Parole Board
(Page 9)
- prior to the imposition of the terms of imprisonment which are now appealed against. Those terms were imposed on 25 May 1999.
29 Since he was arrested on 30 April 1998, the only offence which has been committed by the applicant was driving without a motor driver's licence. The applicant was fined the sum of $2000 for that offence. Due to the fact that the offences concerning which the applicant now appeals were committed prior to the granting of the parole order on 10 August 1998, the Parole Board was of the opinion that cancellation of that parole order was not justified. That view was confirmed at a meeting of the Board on 24 February 2000. The parole order of 10 August 1998 remains effective.
30 On 6 January 1999, the Secretary of the Parole Board advised the applicant's solicitor that the parole order of 10 August 1998 is due to expire on 10 August 2000. The letter also advises that the order was suspended on 27 August 1998 by the Fremantle Community Based Services Manager because of the driving charge and the possession of heroin charge which latter offence was allegedly committed on 20 August 1998. The Secretary of the Parole Board advised that the Board had decided that in view of the breach of 10 August 1998 parole order by the conviction for driving without a motor driver's licence when the applicant was fined $2000 on 29 September 1998 and the serious nature of the outstanding court matters, the suspension of the order was to remain.
31 On 7 October 1999 the Sentence Information Unit advised that because the present relevant heroin offences were committed in April 1998 and did not breach the parole order of 10 August 1998, the applicant did not have any breach of parole days owing. Further, that the presently relevant 8 year sentence, with remissions, has a release date of 6 October 2004. Therefore the 8 year non-parole term currently being served "overrides his parole suspension term expiring 10 August 2000 and is the effective date for release date calculations". Later advice provided on 26 October 1999 was to the effect that due to the suspension of the 10 August 1998 parole order, the applicant was required to complete the remainder of the parole period in prison providing for an expiry date of 10 August 2000. It was further advised that the 8 year sentence for the heroin offences having no parole eligibility provided for a release date of 6 October 2004: "This term is therefore the overriding release date." It was also stated that the parole order of 10 August 1998 could not be cancelled due to the fact that the applicant had not committed the presently relevant heroin offences whilst subject to that parole order. It was said:
(Page 10)
- "To again cancel the order would create a 'double jeopardy' type situation. This has been the standard practice for as long as anyone can remember."
32 The situation therefore, so far as the prison management authorities are concerned, appears to be that the release date for the applicant is 6 October 2004. The facsimile dated 26 October says:
"The 8 year sentence for the heroin offences has no parole eligibility and after remission provides for a release date of 6 October 2004. This term is therefore the overriding release date."
33 The first ground of the present application for leave to appeal against sentence is:
"The learned sentencing Judge erred in that the sentence was manifestly excessive having regard to:
(a) the absence of any profit motive on the part of the applicant;
(b) the fact that the applicant was a heroin addict who was involved in the offences to support his own addiction;
(c) the starting point of 11 years was manifestly excessive having regard to the quantity of the drugs involved."
34 The learned Judge found that the applicant had been apprehended in the act of selling a quantity of heroin for a sum of approximately $15,000. The learned Judge accepted that the applicant was a heroin user. His Honour came to the conclusion that the applicant had heroin in his possession and that he had intended to sell it to others and that in respect of the 41 grams he was apprehended in the act of doing precisely that. Those findings were open on the admitted facts.
35 His Honour compared the decided case of El-Ali (supra) and the amounts involved in that case with the applicant's case. He compared the fast-track plea in El-Ali's case and El-Ali's lack of prior convictions to the situation of the applicant. He then sentenced the applicant to 4 years imprisonment on each charge, making an aggregate total of 8 years imprisonment.
36 In my view, even if the applicant was selling the heroin to support his own addiction, in the light of previously decided cases including
(Page 11)
- El-Ali (supra) and considering that the illegal drug involved was heroin which has obviously badly damaged the applicant and most other people who use it, it could not be said that the aggregate 8 year sentence was excessive. The courts have repeatedly commented upon the damage which is being inflicted on this community arising from the illegal sale of heroin.
37 Ground 1 is not made out.
38 Ground 2 is that the learned Judge erred in finding that the time spent in custody by the applicant prior to sentencing was not related to the offences for which the applicant was sentenced, which error led to the sentences not being back-dated or otherwise adjusted to take into account the period of pre-sentence custody.
39 The relevant law is contained in s 87 of the Act which provides that:
"If when an offender is being sentenced to imprisonment for an offence -
(a) he or she has previously spent time in custody in respect of that offence and for no other reason; and
(b) …
- the court may order that "…the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence."
40 It is clear from the history related above that before the fresh parole order of 10 August 1998 was made the applicant was being kept in custody for another reason than in respect of the relevant offences. That other reason was the breach of the parole order for earlier prison sentences. However after the applicant was released from prison on the fresh parole order of 10 August 1998, that order was suspended on 27 August 1998 because of the driving charge and the alleged possession of heroin charge which heroin charge was later dismissed on 12 January 1999. The applicant was therefore in custody from 27 August 1998 until he was fined $2000 on 29 September 1998 on the driving charge, due to his breach of the parole order of 10 August 1998 by his commission of the driving offence. Thereafter his parole order remained suspended for reasons connected with the dismissed heroin charge and other matters such as "no confirmed accommodation for his release" (Parole Board decision 11 February 1999) and "attempted self-harm" (Parole Board decision 11 March 1999).
(Page 12)
41 As the possession of heroin charge was dismissed on 12 January 1999, and as it may be assumed that the applicant would have been released on bail and parole shortly after he was fined for the driving charge on 29 September 1998 (if not before that time) but for the possession of heroin charge which was dismissed, in my view it should be held that the applicant, in the light of subsequent events, "spent time in custody in respect of" the presently relevant offences "and for no other reason", after 29 September 1998. The 8 year aggregate sentence could therefore have been ordered to commence from 30 September 1998. Ground 2 should therefore be upheld to that extent.
42 Ground 3 is:
"Alternatively the learned sentencing Judge failed to have sufficient regard to the totality principle in that the applicant had spent almost 12 months in custody prior to sentencing and should have reduced the head sentence to reflect the fact that the total amount of time in custody was excessive and crushing."
43 After the applicant was charged with the present relevant offences, his then existing parole order was suspended on 4 May 1998 due to his failure to notify a change of address and his being charged with the present relevant offences which were committed on 30 April 1998 whilst he was on parole. The parole order was cancelled on 29 May 1998, for amongst other reasons, the applicant's "further admittance to his supervising officer of continued heroin use due to his addiction." He was later released on the fresh parole order on 10 August 1998.
44 As stated above, that parole order was suspended on 27 August 1998 due to his being remanded in custody on the charges of driving without a motor driver's licence and possessing heroin. The latter charge was later dismissed on 12 January 1999. The credit of the relevant time referred to in ground 3 has been dealt with under ground 2. Therefore ground 3 of the grounds of appeal is sustained to the degree referred to under ground 2 above.
45 Ground 4 is:
"The applicant was denied the opportunity to be properly considered for parole as a result of incorrect information being conveyed to the learned sentencing Judge
Particulars
(Page 13)
- (a) the learned sentencing Judge was advised by Community Based Corrections that the applicant owed around 2000 days to the Parole Board and for that reason it would be futile to add to that period by making him eligible for parole when in fact the applicant owed around 470 days;
(b) in reliance on that information counsel for the applicant did not make any submission in support of parole and declined to seek a pre-sentence report;
(c) the learned sentencing Judge agreed that the present sentence should not add to the applicant's parole days;
(d) as a result of the incorrect information accepted by the court at the time of sentencing, no submission was made and no consideration was given as to whether there was anything in the materials pointing to the appropriateness of parole."
46 It is correct that the wrong information was given to the learned sentencing Judge as to the correct position with respect to parole. His Honour said:
"As I have mentioned, you presently owe the Parole Board I am told somewhere in the order of 2000 days or 5 years. Obviously there is a difference between those two periods but whatever it is, it is a very, very long time no matter what I do … Of course, looking back you are unable to remain offence free whilst on parole and you break the law in very serious ways, not just in what could be described as nuisance ways. I am not going to make any - my sentence cumulative and I really think the time has passed when you really are a realistic proposition so far as parole goes at all given your age and given your history."
47 As the wrong information was given to the learned Judge concerning the time alleged to be owing on parole, this Court should reconsider the question of parole.
48 Professors Fox and Freiberg in their 1999 edition of "Sentencing - State and Federal Law in Victoria" state at 761:
"Since parole serves to mitigate punishment, as well as providing an opportunity for rehabilitation, favourable matters may be adduced to counterbalance the adverse ones. A
(Page 14)
- non-parole period can thus be justified on the grounds of mitigation alone."
49 Further, pursuant to s 89(2)(d) of the Sentencing Act 1995 (WA), matters which are to be taken into account in arriving at the decision whether to make a parole eligibility order are:
"Circumstances relevant to the offender or which, in the court's opinion, might be relevant to the offender at the time when the offender would be eligible for release on parole if a parole eligibility order were made…."
50 Having in mind that the applicant is a heroin addict who prior to committing the present offences had attempted to obtain treatment for his addiction, and also taking into account the lengthy periods which he has served in prison up to this time, and in the hope that the applicant will make every effort to contain his addiction and avoid further offences which would result in him being returned to prison, in my view, it is in the community's interest that he be given encouragement to obey the law. For those reasons I would order that the applicant is to be eligible for parole with respect to the aggregate 8 year sentence from which he is now appealing.
51 The orders would therefore be that leave to appeal is granted, and the appeal is allowed to the extent that the aggregate 8 year sentence is to commence from 30 September 1998. The applicant is ordered to be eligible for parole with respect to that sentence.
52 MURRAY J: This application for leave to appeal against sentence arises in unusual circumstances. I am grateful to have had available to me in draft form the reasons published by Wallwork J. That relieves me of the need to discuss the facts of the case at any length, and enables me to say that there is much in his Honour's reasons with which I agree.
53 As to ground 1, I respectfully agree that neither sentence of itself, nor the two together, having regard to the order for their cumulative service, may be regarded as manifestly excessive. As has been seen the first offence of possession of heroin with intent to sell or supply was concerned with the applicant's participation in a substantial proposed sale of heroin of which at the time the applicant was in possession. It is clear, as the sentencing Judge found, that although by reason of the applicant's apprehension he did not in fact profit financially from the proposed transaction, he would have done so because he was involved in the sale for the purpose of supporting his heroin addiction. The substantial
(Page 15)
- quantity and proposed price, the significant level of purity, and the fact that the heroin was in rock form suggested that the proposed transaction was by way of wholesale, the intention being that the purchaser would further cut the purity of the drug for its resale on the streets.
54 Again, the heroin found later on that same day, 30 April 1998, upon the execution of a search warrant at the applicant's home in Ardross, was a substantial quantity of a significant degree of purity, prepackaged in 1 gram lots, buried in the backyard of the property and accompanied by scales and other paraphernalia indicative of organised drug dealing. In addition, a separate portion of the material was found in the house and was accepted to be for the applicant's personal use.
55 In the final analysis it was established that to support his own addiction the applicant was prepared to involve himself in an organised process of drug trafficking with the capacity to introduce substantial quantities of the drug into the community for personal gain. The two possessions were quite distinct and separate transactions and the sentences were appropriately ordered to be served cumulatively. Substantial punishment was required for the purposes of both particular and general deterrence in an effort to secure some degree of protection for those vulnerable members of the community who are harmed by exposure to this pernicious trade. I would not uphold ground 1.
56 Grounds 2 and 3 are expressed in the alternative and they may be taken together. They are concerned with the making of an allowance for the time spent in custody prior to the imposition of sentence on 25 May 1999, the date from which the sentencing Judge ordered that the sentences he imposed, aggregating a term of 8 years imprisonment, should run. The matter was discussed during the sentencing proceedings. For the applicant it was submitted that the sentences should be backdated. The prosecution opposed that submission on the ground that the time spent in custody was part of the service of sentences previously imposed. The Judge agreed with that submission, taking the view that the applicant had not been incarcerated for any period in respect of these matters given the time remaining to be served in respect of the previous sentences.
57 The relevant provision of the Sentencing Act 1995 (WA) is s 87 which is in the following terms:
"If when an offender is being sentenced to imprisonment for an offence -
(Page 16)
- (a) he or she has previously spent time in custody in respect of that offence and for no other reason; and
(b) the sentencing court decides that that time should be taken into account,
the court may take that time into account -
(c) if it imposes a fixed term, by reducing that term by an appropriate period; or
(d) by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence."
- Ground 2 really focuses upon the provisions of par (d) and ground 3 seems to me to focus upon the procedure described in par (c), introducing in support of that proposal an argument based on the totality principle as discussed by this Court in Jarvis v The Queen (1993) 20 WAR 201.
58 Wallwork J has concluded that ground 2 should be upheld and to the extent required by that conclusion, ground 3 should be upheld also. I respectfully disagree, although subject to a reservation which may be dealt with under the heading of ground 3. To explain my point of view I need to review the chronology of the sentences imposed on the applicant so far as they are relevant.
59 The applicant has a very long criminal history dating back to 1974 when he was 16, but for present purposes, relying on advice provided to the Court by the respondent following the argument, only the following matters need be mentioned. On 30 August 1985 the applicant was sentenced to 3 years imprisonment by the District Court for assaults occasioning bodily harm and the offence now known as unlawful detention. On 26 May 1986 he received a cumulative sentence of 3 months imprisonment for attempting to corrupt a witness. On 23 December 1986 for unlawful detention and rape, as the offence was then called, he was sentenced to an aggregate cumulative term of 6 years imprisonment with a minimum term of 3 years being fixed. On 12 February 1987 for offences of indecent assault, unlawful detention and rape, he was sentenced to a further cumulative aggregate term of 6 years imprisonment and again a minimum term of 3 years was fixed. He exacerbated the position further when on 9 December 1988 for 6 offences
(Page 17)
- of unlawful detention arising out of a riot in the prison, he was sentenced to a further cumulative term of 18 months imprisonment.
60 To that point therefore, in accordance with the law as it was then framed, the applicant was subject to a total of 16 years and 9 months imprisonment, but would become eligible for parole after serving first the sentences without minimum terms (less remissions) and then the total minimum term of 6 years. He was first released on parole on 4 August 1993 having by then served nearly 8 years imprisonment and, I assume, having completely discharged the service of the cumulative sentences imposed without parole eligibility on 26 May 1986 and 9 December 1988.
61 The parole order was made under the Offenders Community Corrections Act 1963, s 40 in respect of the balance of the aggregate of 12 years imprisonment imposed on 23 December 1986 and 12 February 1987, a period of something under 6 years. However, by reason of the provisions of s 41(2) of the 1963 Act and the table to that subsection, the parole period would have been 2 years.
62 That period was served, but on 31 July 1996 the applicant was sentenced in the District Court to an aggregate term of 2 years and 3 months imprisonment cumulative upon the previous sentences, without parole eligibility, for offences of possession of amphetamine with intent to sell or supply and possession of cannabis. The offences were committed during the parole period and therefore under the law as it was then framed, imprisonment having been imposed, those offences constituted a breach of parole and resulted in the applicant's arrest and return to prison, not only to serve those sentences, but also to serve, unless again released on parole, the balance of the terms previously imposed with respect to which minimum terms had been fixed.
63 I am not sure of the accuracy of the mathematics involved, but the Court was advised, in the jargon of those who calculate the relevant periods and keep the statistics, that "2,718 breach of parole days were owed". That is a period of something under 7-1/2 years and I am not sure how it is derived, but the terminology may mislead unless it is appreciated that what is being referred to is the unserved balance of sentences of imprisonment in respect of which minimum terms or non-parole periods have been served. On 2 August 1996 a further 3 months imprisonment cumulative was imposed for the unlawful possession of an unlicensed firearm.
(Page 18)
64 The applicant was therefore again in prison until he completed the service of those sentences, including remissions, so as to enable him to be granted work release on 2 October 1997 and then, on 1 April 1998, a further parole order for a period of 2 years. However, the applicant lasted no time at all until, as has been seen, on 30 April 1998 he committed the offences the subject of his application for leave to appeal. When he was charged his parole was suspended and he was returned to prison on warrant on 16 May 1998. Shortly afterwards the parole order was cancelled by the Parole Board and so, before his conviction of the offences in question in May 1999, the applicant again continued the service of the unexpired portion of the terms imposed in 1986.
65 The Parole Board cancelled the parole order, we are informed, because the applicant had failed during the previous parole period to notify a change of address, because he had been charged with the present offences, although not convicted, and because he admitted to his parole officer that he was using heroin, to which drug he is addicted. He remained in prison until 10 August 1998 when the applicant was released on another parole order, again for a period of 2 years.
66 It is first with respect to this period between 16 May and 10 August 1998 that the question arises whether the Sentencing Act, s 87 may apply so as to enable the sentences imposed on 25 May 1999 to be reduced or backdated. In my opinion it is clear that neither course could be taken under the section. Certainly a reason why the Parole Board cancelled the parole order was that the applicant had been charged with the offences for which he was later sentenced on 25 May 1999, but the time spent in prison during this period was not time served on remand in respect of the present matters. It was not the case under s 87(a) that the applicant during this period "spent time in custody in respect of that offence and for no other reason".
67 It is not the reason or reasons which cause the defendant to be taken into custody which are critical to the operation of the section. It is the reason why he or she "spent time in custody" which is decisive. In this case that was the service of sentences previously imposed as well as the fact that, having been charged with the offences presently before the Court, the applicant had presumably been remanded in custody, or was unable to obtain his release on bail because upon the suspension and subsequent cancellation of his parole he was required to resume the service of the sentences to which that order related.
(Page 19)
68 Thereafter, having been released on parole on 10 August 1998, that parole order was suspended on 27 August 1998 for the reason that the applicant had been arrested and charged with driving a motor vehicle without the appropriate motor driver's licence and with possession of heroin. Later, on 29 September 1998, he was convicted of the traffic offence and fined $2,000 in a Court of Petty Sessions, and on 12 January 1999 he was acquitted of the charge of possession of heroin. However, his parole order having been suspended, the applicant then remained in custody until, on 21 May 1999, he pleaded guilty to the indictment charging the offences presently before the Court, and on 25 May 1999 he was sentenced to the aggregate term of 8 years imprisonment as from that date.
69 Again, during the whole of this period, while the applicant continued to be remanded in custody in respect of various offences with which he had been charged but of which he had not been convicted, he was a sentenced prisoner and was serving the sentences earlier imposed. Again therefore, during this period, it could not be said that he was spending time in custody in respect of the presently relevant offences "and for no other reason". In my opinion s 87 has no application to this case.
70 However, between 13 January and 25 May 1999, it might be argued that had the applicant not been remanded in custody in respect of the present matters, he remained eligible for parole and a parole order might again have been made. If that was a proper conclusion it would have been a matter relevant to fixing the finite sentences to be imposed upon the applicant's ultimate conviction of the offences of possession of heroin with intent to sell or supply it to another.
71 The evidence, however, is to the contrary. We were advised that, having been informed that the traffic offence had resulted in the imposition of a fine and that the applicant had been acquitted of the charge of possession of heroin, the Parole Board considered whether the suspension order should be lifted or a new parole order made. For reasons concerned with the lack of accommodation for the applicant and therefore the lack of the availability of electronic monitoring in the community, and because there were also concerns over an allegation that the applicant had attempted to harm himself whilst under the influence of a prohibited substance in prison, the Board decided to take no further action in respect of parole pending the sentencing for the two charges now before the Court.
(Page 20)
72 In other words, the decision taken with respect to parole related to matters relevant to the question of the applicant's release other than the fact that he was not only a sentenced prisoner, but also on remand with respect to the matters now before this Court. Further, in my opinion, to call in aid the totality principle as is done in ground 3, does not in the present circumstances assist this Court to draw the conclusion that the sentencing process miscarried at first instance because "the total amount of time in custody was excessive and crushing."
73 What I have written above is in my opinion consistent with the decision of this Court in Palmer v The Queen [1999] WASCA 253; 1 September 1999 per Malcolm CJ (with whom Wallwork J agreed) at par [22] and par [23] and per Murray J at par [37] - par [45]. In that case the Court also noted the earlier decision to the same effect of Scott J in R v Jones, unreported; SCt of WA; Library No 970210; 7 May 1997. I need not repeat in these reasons what was decided in those cases. The proposition which is the qualification to my views about ground 3to which I have previously referred, is that in a case where no discount or credit can be given under s 87 for time spent in custody, it may nonetheless be the case that the sentencing Judge may have regard to such time in fixing the sentence which would be appropriately proportionate to the offence in question.
74 I turn then finally to ground 4 which is concerned with the question of eligibility for parole. Again I regret that I find myself of a different view to that expressed by Wallwork J. The sentencing Judge did consider the question of eligibility for parole and he decided, as he put it shortly, that "the time has passed when you really are a realistic proposition so far as parole goes at all, given your age and given your history." As has been noted, the term of 8 years imposed by his Honour was concurrent with the unserved balance of previous terms, commencing on 25 May 1999. Whether, when those sentences less remissions were served there would remain any part of the previously imposed sentences in respect of which a parole order might be made is not to the point.
75 In my opinion his Honour cannot be said to have erred in the decision he made about eligibility for parole. Having regard to the matters and the history to which I have referred, there was nothing in this case to suggest that eligibility for parole would be appropriate. The applicant had previously had the opportunity of parole on a number of occasions. He had demonstrated his incapacity to benefit from such an order. He had consistently breached parole and there was no indication that as at the time that he was sentenced anything had changed in that
(Page 21)
- regard. Relying on Thompson v The Queen (1992) 8 WAR 387, 395 - 6, I would not uphold this ground.
76 In my opinion for the above reasons I would refuse leave to appeal.
0
5
1