Fleming v The Queen
[2000] WASCA 298
•11 AUGUST 2000
FLEMING -v- THE QUEEN [2000] WASCA 298
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 298 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:50/2000 | 11 AUGUST 2000 | |
| Coram: | IPP J HEENAN J MILLER J | 11/08/00 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| 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
- 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
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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
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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 addict for approximately half of his life and his partner, who is the mother of their 11-year-old child, has been a heroin addict for about 20 years. Although he has a fairly long history of appearances before the courts, for drug and other offences, he has served only two terms of imprisonment. Otherwise, he has been released on parole and on probation and has been subject to community service orders. It is now 14 years or so since he was dealt with for breach of parole, and the papers indicate that he completed his periods on probation without breach and performed the community service required of him. To that extent community supervision has been successful in his case. But if one takes the view that its main purpose is to rehabilitate an offender, then it has failed: instead of being rehabilitated the applicant resumed his heroin habit about four years prior to his being dealt with by his Honour, supporting his use of the drug by supplying it to others.
6 The present offence involved the applicant's obtaining a large quantity of heroin in Sydney and arranging for it to be brought to Perth. Then he and Hamilton travelled by truck from Sydney to Adelaide. From Adelaide they flew to Perth, Hamilton carrying the heroin on his person. The applicant believed, it seems, that the authorities were less likely to
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- apprehend the other man and had agreed to pay him $3,000 for acting as courier. As it happened, both were arrested shortly after they arrived in Perth, and police seized 78.5 grams of heroin from them. By then the applicant, and perhaps Hamilton, had used some of the drug. The heroin was 79 to 82 per cent pure and the applicant had paid $17,500 for it. Had he sold it in Perth he might well have obtained a price of double or even four and a half times that figure.
7 By any standard the offence was of a very serious nature, the sort of offence which might well have attracted a sentence of 7 or 8 years' imprisonment. Appreciating that 5-1/2 years' imprisonment was lenient his Honour told the applicant that he had taken into account not only that the offence was motivated partly by the applicant's own drug habit but also that the applicant had pleaded guilty to the charge. In response to counsel's plea for "the mercy of parole" his Honour said "I do not see anything which can trigger parole" and declined to order eligibility.
8 In support of the present application counsel argued that his Honour erred in finding that there was nothing to trigger parole. Counsel referred to the evidence showing that the applicant had kept off heroin for about eight years, that he had complied with the community supervision orders made over the past 13 years, that he is living with his partner and their child and that, although he has been unemployed for 12 months or thereabouts, it seems that he has been supporting them to some extent. Acknowledging the force in that argument, this Court now should consider for itself whether eligibility for parole should have been ordered. In doing so, I believe it is appropriate to take into account that counsel representing the Crown had drawn the attention of his Honour to the matters which s 89 of the Sentencing Act requires to be considered in such circumstances. Counsel had stressed that the offence was very serious, that it involved the payment of a courier and that the applicant had a bad record, having been in the drug trade for a long time. Counsel referred also to the misleading plea that had been made in the course of mitigation and which was the subject of the trial of issue. The statement by his Honour that he did not see anything which could trigger parole was made only a matter of minutes after counsel had referred to the various factors to be considered when deciding whether a parole eligibility order should be made. It is highly likely, therefore, that such factors were in his Honour's mind and largely influenced him in deciding not to make the order.
9 For myself, if undertaking the sentencing process and giving full weight to the matters raised by counsel for the applicant, my decision
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- would not have been different. Save for the reference to the trigger of parole, in my view the approach of his Honour was entirely correct. I would dismiss the application.
10 IPP J: This is an application for leave to appeal against sentence, coupled with an application for an extension of time to make such an application. I am satisfied that the delay caused in making the application for leave to appeal was not due to the applicant personally, who took appropriate steps to ensure that the application would be made timeously. I am also satisfied for the reasons that follow that there would be a miscarriage of justice if an extension of time were not granted. I would, therefore, grant the application for an extension of time.
11 The applicant was convicted on his own plea of guilty to an offence of possessing heroin with intent to sell or supply. He was sentenced to 5-1/2 years' imprisonment but the learned sentencing Judge refused to order that the applicant be eligible for parole. The ground of appeal against sentence challenges his Honour's refusal to make such an order. Section 89(2) of the Sentencing Act 1995 provides:
"In determining whether it is appropriate to make a parole eligibility order, a court may have regard to all or any of the following:
(a) the seriousness and nature of the offence;
(b) the circumstances of the commission of the offence;
(c) the offender's antecedents;
(d) 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;
(e) any other reason the court decides is relevant."
12 I shall deal firstly with the matters referred to in s 89(2)(a) and s 89(2)(b). In Sydney the applicant purchased about 80 grams of heroin for $17,100. That heroin was approximately 80 per cent pure. He used a small amount of the heroin himself, but then recruited a co-offender to act as a courier to bring the remainder of the heroin, 78.5 grams, into Western Australia. This quantity was considerably in excess of the amount allowed under the Misuse of Drugs Act 1981. The retail value of the
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- heroin was in the vicinity of $76,000. The applicant and the co-offender were arrested when they entered Western Australia.
13 As the learned sentencing Judge pointed out, it was an aggravating feature of the offence that the applicant recruited a younger man of previous good character to act as a courier and in consequence that person is now serving a prison sentence because of his role in the offence. In all the circumstances the offence has to be characterised as serious indeed. The circumstances of the commission of the offence indicate a premeditated, professional operation. The matters which I have outlined so far militate against parole.
14 I now turn to the matters referred to in s 89(2)(c) and s 89(2)(d) of the Act. At the time of sentencing the applicant was 47 years of age. He left school at the age of 15 years and for most of his life worked as a truck driver. For a year or so prior to committing the offence the applicant was unemployed. Nevertheless, he was able to pay $17,100 to purchase the heroin during this time.
15 The fact is that for many years the applicant has been a consumer of and dealer in heroin. As his Honour pointed out in the trial of the issues prior to passing sentence, on his own evidence the applicant had regularly been dealing in drugs up to seven times a week. People used to come regularly to the applicant's door to obtain heroin. As it was put by his Honour, he acted as a go-between. He took their money and then used it to go off to a source (which he obviously did not disclose) where he was able to obtain heroin and return with it. He would keep some of the heroin and give the rest to the initial purchaser.
16 Nevertheless, as the learned Judge pointed out, the applicant and his de facto spouse were regular users of heroin and each had a significant personal habit. The offence was committed partially in order to feed their own addictions. This his Honour regarded as mitigatory of the offence and was one of the reasons why his Honour imposed what he rightly described as a lenient sentence.
17 I have mentioned the applicant's de facto spouse. This relationship is of long standing and has produced an 11-year-old daughter. While the applicant's relationship with the woman concerned has not been very stable, according to the pre-sentence report she asserts that the two of them have become "more understanding". According to the pre-sentence report, his family and his parents are very supportive of him.
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18 As regards the applicant's personal antecedents, there are some matters which have to be noted. The applicant has a long history of offending, but has only been required to serve terms of actual imprisonment on two previous occasions. The offending relates largely to drug convictions.
19 In 1980 the applicant was sentenced to a term of imprisonment following a conviction of robbery and offences relating to heroin and cannabis. In 1983 he was released on parole with the parole period due to expire in August 1987. He complied with the order until late 1986 or early 1987 when he was charged with selling heroin and assault occasioning bodily harm and other charges. This led in 1987 to the parole order being suspended and finally cancelled. The applicant was arrested in November 1988 for the heroin and assault charges and he served the remaining parole period. In February 1989 he was placed on 3 years' probation for heroin and assault charges and was required to perform 120 hours' community service. Later that month he was released on parole with the period due to expire on 21 February 1991. He completed the community service order satisfactorily and was gainfully employed. He complied with the parole order and the parole order expired satisfactorily. He committed other offences in Victoria in 1994 for which no conviction was entered and for which he was fined $1,500. In 1997 he committed an offence of possessing heroin for which he was fined $500, and committed another offence involving prohibited drugs at that time for which he was fined $800.
20 From this history, two points, in my view, have to be noted. Firstly, apart from the one occasion where he breached parole, there were at least three other instances where the applicant was required to serve community service orders and to comply with probation orders. He undertook his obligations in this respect satisfactorily in each case. Secondly, the history of offending shows that for some years since 1989 the applicant, to at least some significant degree, had reformed. This is consistent with the evidence before the learned sentencing Judge that after having been a significant user of heroin for several years the applicant managed to abstain for some eight years, and about four years ago relapsed into consuming heroin again. The serious offences that he committed coincide with that relapse.
21 Relevantly, for the purposes of this appeal, however, is the fact that the applicant did rid himself of his heroin habit for eight years. Senior counsel for the respondent submitted that this testimony, that is, in regard to the abstinence, was not reliable. It was however not challenged during
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- the hearing before the learned sentencing Judge and must be accepted at this stage.
22 In my view abstinence for eight years after having been a heroin addict for so long demonstrates conclusively that the applicant has the capacity to rehabilitate himself and, further, that the prior orders for parole and community service were relatively successful. Eight years abstinence from heroin can hardly be regarded as a failure.
23 Other matters which can be grouped as being relevant under s 89(2)(c) and s 89(2)(d) are the fact that the applicant has indicated his readiness to address his heroin habit in prison and has promised to seek counselling services from the substance resource unit. As regards s 89(2)(e) the only other reason, it seems to me, that would be relevant to the question whether parole should have been granted is the fact that the pre-sentence report was favourable in this respect and stated:
"[I]t is deemed suitable that he could benefit from a period of parole should he receive a term of imprisonment."
24 It is in this context that the learned sentencing Judge's approach to parole has to be considered. In dealing with parole the learned sentencing Judge said:
"Having regard to the materials before me, I do not see anything which can trigger parole so I am ruling that you are not eligible for parole."
25 His Honour's reference to nothing before him which could "trigger parole" is based on remarks of this Court in Thompson v The Queen (1992) 8 WAR 387 at 395 where it was said:
"[T]he discretion whether an order for eligibility for parole should be made cannot be triggered unless there is something in the materials before the sentencing judge which points positively towards the appropriateness of parole … but nonetheless the philosophy of the Act suggests a bias towards eligibility."
26 In my view, however, there were several matters that pointed positively towards the appropriateness of parole. Firstly, the applicant had, on a number of occasions since 1987, satisfactorily complied with parole orders and different community based orders and I have indicated what inferences are to be drawn from that. Secondly, he has the support
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- of his parents, his de facto spouse and his daughter and there is a longstanding family relationship. Thirdly, the applicant has made serious attempts in the past to rid himself of his heroin habit and successfully abstained for some eight years. In the light of his willingness to undergo treatment in prison there must be a reasonable prospect of rehabilitation in this respect and this is supported by some expression of remorse. It is also supported by the pre-sentence report, to which some weight must be given.
27 Accordingly, in my view, the learned Judge erred, with respect, in concluding that there was nothing to trigger parole. That, however, is not the end of the matter. An error of that kind opens up the discretion of this Court and this Court is now at large in determining whether or not parole should be granted. That question is to be determined after consideration of the factors referred to in s 89(2).
28 The seriousness and nature of the offence and the circumstances of its commission, as I say, militate against parole. I again refer to the quantity of heroin involved, its purity and its value. Additionally there is the matter of the corruption of the co-offender. As regards the matters referred to in the other subsections of s 89, these are something of a mixed bag.
29 On the one hand the applicant's age and conduct as a dealer tend against parole. He has had ample opportunities in the past to fully rehabilitate himself but he has not taken full advantage of them and is now a man of mature years. On the other hand there are those factors which I have outlined as triggering the discretion to grant parole and it is unnecessary for me to enumerate them again. There is, however, one other matter that needs to be mentioned before the balancing exercise is finally carried out.
30 Regard has to be had to the fact that, as was noted in Thompson v The Queen there was a bias towards eligibility for parole. This bias is particularly apparent from that case. The applicant in Thompson v The Queen had committed serious offences of unlawful deprivation of liberty, assault with intent to steal with actual violence and doing grievous bodily harm to the complainant with intent. He was a man in his late thirties. He received an overall sentence of 10 years' imprisonment. The court (at 397) said:
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- "Certainly, the seriousness of the offences and the applicant's past record militated against the grant of parole eligibility. However, in our opinion, the learned sentencing judge erred in that he did not pay sufficient regard to the advances which the applicant has made since 1986. These advances are, in our view, matters which 'point positively to the appropriateness of parole'. They show a glimmer of hope."
31 Similarly in this case it is quite apparent that the applicant made significant advances in his rehabilitation in the period in which he abstained from heroin. True it is that he has relapsed but, in my opinion, his conduct in the past demonstrates, notwithstanding his age, that he is a person who would benefit from parole.
32 In my view, there is more than "a glimmer of hope" that the applicant will rehabilitate himself. His drug-free period suggests that with the assistance and training he receives in prison, he could again rid himself of the addiction. He has in the past shown himself to be able to comply with parole orders and community service orders. In a sense his mature years, coupled with his family situation, may be an additional incentive to take what in effect would be his last opportunity for a crime-free and drug-free life.
33 Thus although I recognise that the matter is finely balanced in the exercise of the fresh discretion that now applies, I would grant the applicant an order for eligibility for parole. In my opinion, it would be wrong to deny the applicant one last opportunity. Accordingly, I would grant the application for an extension of time, grant the application for leave to appeal against sentence and uphold the appeal against the sentence, in that I would set aside his Honour's refusal to grant the applicant eligibility for parole and would make an order granting him eligibility for parole.
34 MILLER J: I agree with Heenan J that the application should be dismissed for the reasons which have been given by his Honour. I would add only this. It is true that the authorities indicate a bias in favour of parole. It is true too that in this case there were circumstances which triggered consideration of the question whether the appellant should have been granted parole. To this extent his Honour erred in saying there was nothing to trigger parole.
35 However, on a consideration of whether parole eligibility should have been ordered, careful consideration and weighing of the factors set
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- out in s 89(2)(a) to s 89(2)(e) of the Sentencing Act all tell, in my view, against parole in this case, particularly s 89(2)(a), s 89(2)(b) and s 89(2)(c), and I find no other circumstances relevant to the offender or which might be relevant to him within the meaning of s89(2)(d) which would justify an order for parole.
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