Hall v The State of Western Australia

[2018] WASCA 151

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   HALL -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 151

CORAM:   BUSS P

MAZZA JA

HALL J

HEARD:   21 AUGUST 2018

DELIVERED          :   21 AUGUST 2018

PUBLISHED           :   30 AUGUST 2018

FILE NO/S:   CACR 16 of 2018

BETWEEN:   CHARLES HALL

Appellant

AND

THE STATE OF 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 sentence - Six counts of conspiring to sell prohibited drug, one count of offering to sell or supply prohibited drug, one count of possession of prohibited drug with intent to sell or supply, one count of selling prohibited drug - Where appellant sentenced on incorrect factual basis

Legislation:

Criminal Appeals Act 2004 (WA), s 31
Criminal Procedure Act 2004 (WA), s 129
Sentencing Act 1995 (WA), s 6

Result:

Leave to appeal is granted
Appeal allowed
Sentences set aside
Appellant to be resentenced in the District Court

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):

McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121

The State of Western Australia v Cairns [2006] WASCA 178

REASONS OF THE COURT:

1. This is an appeal against sentence. 

2. At the conclusion of the hearing of the appeal orders were made granting leave to appeal, allowing the appeal, setting aside the sentences imposed on the appellant and remitting the matter to the District Court for the appellant to be resentenced.  Our reasons for making those orders are as follows.

3. The appellant alleged that a miscarriage of justice had occurred because at the sentencing hearing the prosecutor had read out incorrect facts in relation to two of the counts in the nine‑count indictment.  He also alleged that the sentence on one of those counts was inconsistent with the sentence imposed on a co‑offender and infringed the parity principle. 

4. The State conceded that the alleged errors had been made and that the appeal should be allowed.  That concession was properly made. 

5. The State also submitted that there were errors in regard to the facts relating to other counts in the indictment.  As all of the counts were dealt with at the same time as part of a single sentencing exercise it is appropriate that all of the sentences imposed be set aside and for the matter to be remitted to the District Court for resentencing.

Background

1. On 13 November 2017, the appellant pleaded guilty to nine counts on an indictment and judgments of conviction were entered.  The charges related to a number of transactions involving the sale of methylamphetamine and, in one case, cannabis.  These transactions occurred over an approximately three and a half month period in late 2015. 

2. After tendering the prosecution brief, including audio‑recordings of telephone intercept materials and a video‑recording of an interview with the appellant, prosecuting counsel purported to state the facts relating to the offences. 

3. Count 7 charged that on or about 19 October 2015 at Karratha the appellant had sold or supplied a prohibited drug, namely methylamphetamine, to another.  Count 8 charged that, on 20 October 2015, the appellant had conspired to sell or supply to another a prohibited drug, namely methylamphetamine.  The facts as read contained no facts that related to an offence that occurred on 19 October 2015.  The portion of the facts that was said to relate to count 7 do not in fact relate to that offence.  The facts relating to count 7 were incidentally referred to in the context of count 8.

4. Count 9 was an offence of conspiring with another to sell or supply methylamphetamine.  In stating the facts in relation to this count the prosecutor said that it related to 1 oz of methylamphetamine that was to be sold for $7,000 or $8,000.  The person with whom the appellant conspired was Richard Joseph Prendergast.  Prendergast was sentenced on 7 December 2017 on 40 counts, one of which corresponded to count 9 in relation to the appellant.  At Prendergast's sentencing the State conceded that this offence related to an unspecified sample amount of methylamphetamine rather than the 1 oz (or 28 g) that was originally alleged.  Prendergast was sentenced to 4 months' imprisonment in respect of this offence.  The transcript of Prendergast's sentencing was available to the judge who sentenced the appellant, but the inconsistency between the concession made in Prendergast's sentencing and the facts stated in relation to count 9 was overlooked. 

5. After the facts were read, the appellant's counsel sought a pre‑sentence report and the matter was adjourned to 18 December 2017.  When referring to the facts for the purpose of sentence, the sentencing judge repeated and incorporated the errors as to the facts made by the prosecutor.  It is apparent that in the intervening month the errors had not been detected.  The sentencing judge sentenced the appellant in accordance with the table that follows:

Count	Offence	Date	Max Penalty	Penalty imposed Appellant
(1)	Offered to sell or supply methylamphetamine	30.8.2015	25 years and/or $100k fine	15 months
(2)	Possessed methylamphetamine with intent to sell or supply	31.08.2015	25 years and/or $100k fine	15 months
(3)	Conspired with another to sell or supply methylamphetamine	04.09.2015	20 years and/or $75k fine	9 months
(4)	Conspired with another to sell or supply methylamphetamine	04.09.2015	20 years and/or $75k fine	9 months
(5)	Conspired with another to sell or supply methylamphetamine	22.09.2015	20 years and/or $75k fine	12 months
(6)	Conspired with another to sell or supply cannabis	24.09.2015	10 years and/or $25k fine	9 months
(7)	Sold or supplied methylamphetamine	19.10.2015	25 years and/or $100k fine	18 months cumulative
(8)	Conspired with another to sell or supply methylamphetamine	20.10.2015	20 years and/or $75k fine	12 months
(9)	Conspired with Prendergast to sell or supply methylamphetamine	08.12.2015	20 years and/or $75k fine	2 years' imp (head sentence)
TES:		3 years 6 months' imprisonment

1. An order was also made that the appellant be declared a drug trafficker.  That order is the subject of a separate appeal.

Grounds

1. The grounds of appeal are as follows:

   (1)A miscarriage of justice occurred in relation to count 7 in the indictment in that the appellant was sentenced on incorrect facts.

   (2)A miscarriage of justice occurred in relation to count 9 in the indictment in that the appellant was sentenced on incorrect facts.

   (3)In the alternative to ground 2, the appellant has a justifiable sense of grievance in relation to the sentence he received on count 9 in the indictment, based on disparity with the sentence received by a co‑offender in relation to that offence.

Merits of the appeal

1. Where an accused has entered pleas of guilty, the prosecutor must state aloud to the court the material facts of the offence before the court imposes sentence: s 129(3) of the Criminal Procedure Act2004 (WA). This is an essential feature of sentencing proceedings following a plea of guilty. A plea of guilty only involves an acceptance of the essential elements of the offence. Other facts may be disputed. The stating aloud of the facts provides the offender with an opportunity to raise any dispute.

2. If the facts are admitted (or determined on a trial of issues), they provide the basis upon which the offender is to be sentenced. It is essential for the circumstances of the commission of an offence to be established in the course of a sentencing hearing in order to ensure that any sentence imposed is commensurate with the seriousness of the offence: s 6 of the Sentencing Act 1995 (WA).

3. In the present case the State concedes that the oral statement of material facts was confusing and contained a number of material inaccuracies.  It is also accepted that the appellant should not have been sentenced on the basis that count 9 related to 1 oz of methylamphetamine and this created an unjustifiable disparity between the sentence imposed on the appellant and that imposed on Prendergast for the same offence.  The factual errors extended beyond counts 7 and 9 and also affected counts 4, 5 and 8.

4. It is apparent that the sentencing of the appellant was so seriously flawed as to necessitate fresh sentencing proceedings.  Where an appellate court concludes that the sentencing judge's discretion miscarried in respect of one component of a sentence, the whole of the sentence imposed by the sentencing judge may be set aside:  The State of Western Australia v Cairns [2006] WASCA 178 [42]; McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121, 126. That is particularly pertinent in the present case given that the State concedes that the factual errors extended beyond counts 7 and 9. Accordingly, the sentences in respect of all nine counts should be set aside and the appellant resentenced in respect of them.

5. This is a case in which it is appropriate to send the charges back to the court that imposed the sentence to be dealt with further: s 31(5)(b) Criminal Appeals Act 2004 (WA). This is because there were no proper sentencing proceedings in the District Court. In particular, the following matters are relevant: the facts were not accurately stated in the District Court, the State has now prepared a new and different statement of material facts, the appellant should have an opportunity to consider those facts and whether he wishes to dispute them in any respect and some time has now passed which may have had an impact on the appellant's personal circumstances.

Conclusion

1. For these reasons the following orders were made on the hearing of the appeal:

   (1)Leave to appeal is granted on grounds 1, 2 and 3.

   (2)The appeal is allowed.

   (3)The whole of the sentencing decision made by Wager DCJ, including all of the sentences imposed by her Honour on 18 December 2017 in relation to the appellant on the counts in indictment IND KAR 3 of 2017, are set aside.

   (4)The appellant is to be resentenced by a different judge of the District Court of Western Australia in respect of the counts in indictment IND KAR 3 of 2017.

   (5)The appellant is remanded to appear at a sentence mention hearing in the District Court of Western Australia, 500 Hay Street, Perth, at 9.00 am on 31 August 2018.

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