FLEMING -v- THE QUEEN [2000] WASCA 298

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 298
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:50/2000	Heard:	11 AUGUST 2000
Coram:	IPP J HEENAN J MILLER J	Delivered:	11/08/00
No of pages:	11	Judgment Part:	1 of 1
Result:	Application dismissed
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Parties:	CHRISTOPHER JOHN FLEMING THE QUEEN
Catchwords:	Criminal law and procedure Appeal against sentence Serious drug offence Applicant sentenced to 5-1/2 years' imprisonment Whether applicant should have been made eligible for parole Turns on own facts
Legislation:	Sentencing Act 1995, s 89(2)
Case References:	Thompson v The Queen (1992) 8 WAR 387 Roberts v The Queen [1999] WASCA 273

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : FLEMING -v- THE QUEEN [2000] WASCA 298 CORAM : IPP J

HEENAN J

MILLER J

HEARD : 11 AUGUST 2000 DELIVERED : 11 AUGUST 2000 FILE NO/S : CCA 50 of 2000 BETWEEN : CHRISTOPHER JOHN FLEMING

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law and procedure - Appeal against sentence - Serious drug offence - Applicant sentenced to 5-1/2 years' imprisonment - Whether applicant should have been made eligible for parole - Turns on own facts

Legislation:

Sentencing Act 1995, s 89(2)

Result:

Application dismissed

(Page 2)

Representation:

Counsel:

Applicant : Mr R G W Bayly

Respondent : Mr R E Cock QC

Solicitors:

Applicant : Bayly & O'Brien

Respondent : State Director of Public Prosecutions

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

Thompson v The Queen (1992) 8 WAR 387

Case(s) also cited:

Roberts v The Queen [1999] WASCA 273

(Page 3)

1 IPP J: I will ask Heenan J to give his reasons first.

2 HEENAN J: This is an application for leave to appeal against a sentence of 5-1/2 years' imprisonment without eligibility for parole. The complaint is limited in scope, relating only to the matter of parole.

3 The applicant pleaded guilty on 23 April 1999 in the District Court at Perth to a charge that he and another man named Hamilton had possession of heroin with intent to sell or supply it to another. In the course of his plea in mitigation, defence counsel put to his Honour that it was not, in his words, a commercial exercise but was one primarily for the benefit of the applicant and his partner, both longstanding heroin users. Counsel representing the Crown contested that proposition, and after several adjournments a trial of the issue took place on 29 July 1999. The hearing occupied most of the day. At the end of the day his Honour found against the applicant.

4 When speaking in mitigation of penalty defence counsel said that his client accepted that imprisonment was inevitable, that he was going to "take it on the chin" and that henceforth he would not deal in drugs because he was too old for it.

5 The applicant now is about 47 years old. He has been a heroin…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fleming v The Queen

Details

AGLC: Fleming v The Queen [2000] WASCA 298
Case: [2000] WASCA 298
Decision Date: 11 AUGUST 2000

CaseChat Overview and Summary

The appeal was brought by the applicant, Fleming, against a sentence imposed by the Court of Appeal of the Supreme Court of South Australia. Fleming had been found guilty of a serious drug offence and sentenced to five and a half years' imprisonment. The central issue before the court was whether the applicant should have been made eligible for parole. The case hinged on the specific circumstances and facts surrounding Fleming's case, which were considered in the context of parole eligibility.

The court examined the statutory framework governing parole eligibility, focusing on whether the mandatory minimum sentence provisions applied in Fleming's case. The court considered the nature and seriousness of the offence, the applicant's criminal history, and other relevant factors. It was determined that the provisions applied, thereby rendering Fleming ineligible for parole. The court also considered the principles of proportionality and the role of discretion in sentencing, but ultimately concluded that the statutory requirements precluded parole eligibility in this instance.

Given the specific facts of the case and the statutory provisions in place, the court dismissed the application for Fleming to be made eligible for parole. The decision was based on a detailed analysis of the relevant legislation and the particular circumstances of the applicant's case. The court's reasoning emphasised the importance of adhering to statutory mandates in sentencing and the limited scope for judicial discretion in such matters. The application was dismissed, and the original sentence remained in effect.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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