Gentili v The State of Western Australia - [2023] WASCA 181

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   GENTILI -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 181
CORAM:   BUSS P
MITCHELL JA
HALL JA

HEARD:   8 DECEMBER 2023
DELIVERED          :   15 DECEMBER 2023
FILE NO/S:   CACR 110 of 2022
BETWEEN:   JOHN ANTHONY GENTILI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LEVY DCJ
File Number            :   IND 2551 of 2019

Catchwords:

Appeal - Practice and procedure - Application for extension of time to comply with springing order - Where appellant received a total effective sentence of 6 years 4 months' imprisonment for drug, money and firearm offences - Where proposed appeal ground contends that the sentences imposed were manifestly excessive - Whether proposed appeal ground has any reasonable prospect of succeeding - Whether it is in the interests of justice to grant an extension of time

Legislation:

Criminal Code (WA), s 417(1)
Firearms Act 1973 (WA), s 19(1)(c)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Result:

Application for an extension of time to comply with springing order dismissed
Appeal remains dismissed pursuant to springing order

Category: D

Representation:

Counsel:

Appellant	:	In person
Respondent	:	R P Arndt

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

A v C [No 2] [2015] WASCA 199
Bond v The State of Western Australia [2011] WASCA 123
Carlucci v The State of Western Australia [2019] WASCA 37
Gaskell v The State of Western Australia [2018] WASCA 8
Humes v The State of Western Australia [2023] WASCA 110
Kabambi v The State of Western Australia [2019] WASCA 44
Krysiak v Housing Authority [2020] WASCA 119
McGrath v The State of Western Australia [2021] WASCA 118

JUDGMENT OF THE COURT:

We are dealing with the appellant's application for an extension of time in which to file an appellant's case in his appeal against sentence.

Sentences imposed

The appellant was sentenced on 11 October 2022 to a total effective sentence of 6 years 4 months' imprisonment. The sentences for the charged offences, which were all committed on 17 May 2019, were structured as follows:

Count	Offence	Maximum penalty	Sentence	Cumulation
1	Possession of a prohibited drug (80.4 g of methylamphetamine) with intent to sell or supply it to another. (Misuse of Drugs Act 1981 (WA), s 6(1)(a))	Life imprisonment	5 years 10 months	Head sentence
2	Possession of a thing capable of being stolen, namely a sum of money ($16,400 cash), that was reasonably suspected of having been unlawfully obtained. (Criminal Code (WA), s 417(1))	7 years	10 months	Concurrent
3	Possession of an unlicensed firearm. (Firearms Act 1973 (WA), s 19(1)(c))	5 years	6 months (reduced from 9 months for totality)	Cumulative
4	Possession of unlicensed ammunition. (Firearms Act 1973 (WA), s 19(1)(c))	5 years	3 months	Concurrent
Total effective sentence			6 years 4 months

The appellant was made eligible for parole, and the sentences were backdated to 17 February 2022. The appellant pleaded guilty to counts 3 and 4 and received a discount of 10% under s 9AA of the Sentencing Act 1995 (WA). He was convicted of counts 1 and 2 after trial.

Procedural history

The appellant filed an appeal notice appealing against his sentence on 31 October 2022. His appellant's case was due to be filed on or before 26 December 2022. No appellant's case was filed. Extensions of time were granted to the appellant on 23 January 2023, 21 February 2023, 22 March 2023 and 19 April 2023 but an appellant's case was not filed within the extended times. On 21 June 2023, the court made a springing order extending the time for the appellant to file his appellant's case to 2 August 2023, failing which the appeal would be dismissed. On 4 August 2023, the time for compliance with the springing order was extended to 28 August 2023. On 29 August 2023, the time for compliance with the springing order was further extended to 4.00 pm on 18 September 2023.
The appellant did not file his appellant's case by 4.00 pm on 18 September 2023. As a result, the appeal was dismissed pursuant to the springing order. A certificate of conclusion of the appeal was signed by the a/court of appeal registrar on 20 September 2023.
On 10 November 2023, the appellant filed an application seeking a further extension of time in which to comply with the springing order and an order setting aside the certificate of conclusion of the appeal. We are now dealing with that application.
The appellant's application is supported by an affidavit sworn 6 November 2023 deposing as to steps he had taken in prison attempting to send the court a letter seeking a further extension of time prior to 18 September 2023. The affidavit did not attach a form of the appellant's case which the appellant proposed to file if an extension of time to comply with the springing order was granted.
On 15 November 2023, the court ordered that, by 4.00 pm on 30 November 2023, the appellant must file and serve a minute of his proposed appellant's case. A document was sent from the prison to the court of appeal office on 30 November 2023, but the words on the right‑hand side were not visible due to the document being cut off. On 5 December 2023, a minute of the proposed appellant's case was lodged with the court of appeal office. In effect, the proposed ground of appeal contends that the individual sentences (particularly the sentence for count 1) were manifestly excessive, and the total effective sentence infringed the first limb of the totality principle.

General principles as to extension of time to comply with springing order

The principles governing the determination of an application to extend time to comply with a springing order were summarised by this court in A v C [No 2],[1] in the following terms:
[1] A v C [No 2] [2015] WASCA 199 [2] - [4], applied in Krysiak v Housing Authority [2020] WASCA 119 [87].
It has often been pointed out that the failure by a party to comply with a springing order is an egregious breach. A springing order is intended to be the last opportunity afforded to the party to put its case in order. The proper administration of justice, and the quality of justice for the other party, generally requires that it be just that, its last opportunity …
There is, however, a discretion to extend the time for compliance with a springing order and while no hard and fast rules can be laid down as to the matters to which the Court should have regard in the exercise of that discretion, the Court will normally have regard to at least the following matters:
(1)the circumstances in which the springing order came to be made;
(2)the reason for non-compliance with the springing order;
(3)the prejudice to the defaulting party if the time were not extended; and
(4)the prejudice to the other party if the time were extended.
It will also normally be a relevant consideration whether or not the defaulting party has a reasonably arguable case on the merits, there being no point in resuscitating a case that is devoid of merit. However, the fact that a party has an apparently meritorious case cannot be permitted effectively to insulate it from the consequences of a failure to comply with a peremptory order of the Court[.]
(citations omitted)

General principles as to inferred error in sentencing

The appellant's proposed ground of appeal asserts inferred, rather than express, error. The relevant principles are well established, and were summarised in Kabambi v The State of Western Australia:[2]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[2] Kabambi v The State of Western Australia [2019] WASCA 44 [21].

Merits of the extension application

We are not satisfied that it is in the interests of justice to grant a further extension of time to comply with the springing order. The springing order was made after the appellant's repeated failure to file an appellant's case after successive orders of the court extending the time for him to do so. After the springing order was made, two further extensions of time were granted before the appeal was dismissed pursuant to the springing order. No adequate explanation has been provided for the appellant's failure to comply with the rules and orders of the court requiring the filing of an appellant's case.
There is no particular prejudice to the respondent in granting a further extension of time. However, the lack of merit in the proposed ground of appeal means that there is no substantive prejudice to the appellant resulting from the refusal of an extension of time. The lack of merit in the proposed ground of appeal also means that there would be no utility in granting a further extension of time. We turn to explain why, in our view, there is no merit in the proposed ground of appeal.

Merit of the proposed ground of appeal

The success of the appellant's appeal turns on his contention that the individual sentence of 5 years 10 months' imprisonment for count 1 was manifestly excessive. We see no possible basis on which the moderate individual sentences for the other offences of which the appellant was convicted could be thought to be manifestly excessive. The accumulation of one of those sentences (reduced for totality) with the effect of adding only six months to the appellant's total effective sentence could not be seen as unreasonable or plainly unjust unless the sentence for count 1 was manifestly excessive.
The maximum penalty for the offence against s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) charged in count 1 of the indictment is life imprisonment.
The trial judge made the following findings as to the circumstances of the offence. On 19 May 2019, police executed a search warrant at the appellant's home and located a total of 80.4 g of methylamphetamine located in three separate clipseal bags. The bags weighed between 25.5 g and 27.5 g and contained methylamphetamine with a purity of between 69% and 75%. Also located were items associated with drug dealing: empty clipseal bags, a spoon with white residue, digital scales and weights, the rifle the subject of count 3 and a 'tick list' recording money owed to the appellant for methylamphetamine. The money the subject of count 2 ($16,400) and the ammunition the subject of count 4 were also located at this time. The trial judge was satisfied that the appellant was a user of methylamphetamine who intended to use some of the drugs himself but also intended to sell or supply a not insignificant part of the total amount of the drug to another or others. The appellant was involved in the distribution of methylamphetamine 'at some level of commerciality'.[3]
[3] Trial ts 384 - 385.
The trial judge made the following findings as to the appellant's personal circumstances. The appellant was 57 years old at the time of sentencing and 55 years old at the time of offending. His childhood was characterised by domestic violence and dysfunction. He left school at year 10 or year 11 and had a good employment history. He had four children from three previous relationships, three of whom were adults and one of whom was 13 years old at the time of sentencing. The appellant had the support of his family and had been a positive influence in the lives of his children and grandchildren 'when clean'.[4]
[4] Trial ts 388 - 389, 392 - 393.
The trial judge found that the appellant had a long history of illicit substance abuse and was in poor mental and physical health.[5] His Honour accepted that there was a degree of mitigation to be found in additional hardship of imprisonment arising from the appellant's mental health issues and the fact that he was being kept in protective custody due to threats against his life.[6]
[5] Trial ts 389 - 390.
[6] Trial ts 394.
The trial judge found that, in February and May 2019, there was a concern that the appellant might be suffering from renal cancer. He was referred for further tests and consultations with appropriate medical specialists, which resulted in reports indicating suspicions that the appellant may be suffering from a renal cell carcinoma. The appellant believed that the results were conclusive and lived his life in the belief that he was suffering from renal cancer. This led the appellant to effectively abscond when on bail pending sentence and not provide the court with any further information as to either the formal diagnosis or his prognosis. There was no evidence before the trial judge which enabled his Honour to conclude that the appellant was actually suffering from renal cancer or to form any view as to a prognosis of such a condition.[7]
[7] Trial ts 390 - 392.
The appellant has a significant criminal record extending back to 1982, which included a total effective sentence of 6 years' imprisonment received for drug and firearms offences in October 2002.[8]
[8] Trial ts 393.
The general sentencing considerations for serious drug offences are well established, and were summarised in Gaskell v The State of Western Australia in the following terms:[9]
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not generally the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. That is because it can be presumed that the greater the quantity and the purity, the greater the harm which may be done to the community. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
As this court has recently observed, while categorisation of the role of an offender may promote consistency, the utility of such an exercise is often limited by the extent of the available information. Such a characterisation is not an essential task to be undertaken in every case, regardless of whether it is possible or appropriate. The characterisation of an offender's role, even when possible, must not obscure an assessment of what the offender did.
(citations omitted)
[9] Gaskell v The State of Western Australia [2018] WASCA 8 [128] ‑ [129].
The appellant refers to a number of decisions of this court dealing with customary sentencing standards for serious drug offences against the Misuse of Drugs Act.[10] Having regard to the relevant similarities and differences, the sentence imposed in the present case for count 1 on the indictment is broadly consistent with the sentences imposed in those decisions and the cases to which they refer.
[10] Humes v The State of Western Australia [2023] WASCA 110; McGrath v The State of Western Australia [2021] WASCA 118; Carlucci v The State of Western Australia [2019] WASCA 37 and Bond v The State of Western Australia [2011] WASCA 123.
The appellant was operating his own commercial drug dealing business. The presence of a firearm and ammunition at the house from which he conducted that business was an aggravating feature of the offending. The appellant was not of good character, and his record of offending, while not an aggravating circumstance, elevated the significance of personal deterrence as a sentencing consideration. Significantly, he did not have the mitigating benefit of a plea of guilty to the drug offence. The only significant mitigating factors were the appellant's deprived background and the additional hardship of imprisonment resulting from his mental health conditions and need to be kept in protective custody. In all the circumstances, and having regard to the maximum penalty and all other relevant sentencing considerations, it is not reasonably arguable that the individual sentence imposed on count 1 was manifestly excessive. It follows, in the circumstances, that it is not reasonably arguable that the total effective sentence is unreasonable or plainly unjust.
For these reasons the proposed ground of appeal is without merit. There is no substantial prejudice to refusing to extend the time for the appellant to comply with the springing order and no utility in doing so.

Orders

For the above reasons, we would refuse the appellant's application to extend the time for complying with the springing order. The appropriate orders are:
1.The appellant's application in an appeal filed on 10 November 2023 is dismissed.
2.The appeal remains dismissed pursuant to the orders made on 21 June 2023, 4 August 2023 and 29 August 2023.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
15 DECEMBER 2023