Hall v Director of Public Prosecutions for Western Australia

[2018] WASCA 152

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   HALL -v- DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2018] WASCA 152

CORAM:   BUSS P

MAZZA JA

HALL J

HEARD:   21 AUGUST 2018

DELIVERED          :   21 AUGUST 2018

PUBLISHED           :   30 AUGUST 2018

FILE NO/S:   CACV 53 of 2018

BETWEEN:   CHARLES HALL

Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   WAGER DCJ

File Number             :   IND/KAR 3 of 2017

Catchwords:

Criminal law - Appeal against making of drug trafficker declaration - Where appellant sentenced on incorrect factual basis

Legislation:

Misuse of Drugs Act 1981 (WA), s 32A

Result:

Application for extension of time within which to appeal is granted
Appeal is allowed
The drug trafficker declaration is set aside

Category:    B

Representation:

Counsel:

Appellant	:	Mr A Robson
Respondent	:	Mr J Scholz

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	The Director of Public Prosecutions (WA)

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

Hall v The State of Western Australia [2018] WASCA 151

REASONS OF THE COURT:

1. This is an appeal against the making of a drug trafficker declaration pursuant to s 32A of the Misuse of Drugs Act 1981 (WA).

2. At the conclusion of the hearing of the appeal the court ordered that an extension of time be granted, the appeal be allowed and the drug trafficker declaration be set aside.  These are our reasons making those orders.

3. On 13 November 2017, the appellant pleaded guilty to nine counts on an indictment.  The facts of the offences were read by prosecuting counsel and it is now conceded that there were material errors in the facts so stated.  Those errors are the subject of a separate appeal against sentence.  See:  Hall v The State of Western Australia [2018] WASCA 151.

4. On 18 December 2017, the sentencing judge sentenced the appellant to a total effective sentence of 3 years and 6 months' immediate imprisonment and made a drug trafficker declaration pursuant to s 32A of the Misuse of Drugs Act.  That declaration was made on the basis of the facts stated in respect of count 9.  It had been stated by the prosecutor that that count related to 1 oz (ie, 28 g) of methylamphetamine.  In sentencing proceedings in respect of a co‑offender, it had been conceded that this offence related to a small unquantified sample amount of methylamphetamine.  It is accepted by the respondent that that concession should also have been made in respect of the appellant and that, accordingly, on the true facts it was not open to make a drug trafficker declaration.  That concession was properly made.

5. Section 32A(1)(b)(i) of the Misuse of Drugs Act provides that where a person is convicted of a serious drug offence in respect of a prohibited drug in a quantity which is not less than the quantity specified in sch VII of the Act in relation to the prohibited drug, the court convicting the person of the serious drug offence shall, on the application of the DPP, declare the person to be a drug trafficker.  The quantity of methylamphetamine specified in sch VII is 28 g.  There are other bases for making a drug trafficker declaration, but none of them were applicable in this case.

6. The only count in the indictment that could have met the requirement as to the specified quantity was count 9.  All of the other counts involved quantities that were less than the specified quantity.  The acceptance by the respondent that count 9 did not, as originally alleged, involve 1 oz of methylamphetamine, but rather a small unspecified sample amount of the drug means that there was no proper basis for a drug trafficker declaration in respect of the appellant.

7. The appeal was brought out of time.  However, given the plain miscarriage of justice that has occurred it was appropriate to grant an extension.

Conclusion

1. For those reasons, at the hearing of the appeal the following orders were made:

   (1)The appellant's application for an extension of time within which to appeal is granted.

   (2)The appeal is allowed.

   (3)The drug trafficker declaration made by Wager DCJ in relation to the appellant on 18 December 2017 is set aside.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AM
ASSOCIATE TO THE HONOURABLE JUSTICE HALL

30 AUGUST 2018