HSH v The State of Western Australia
[2023] WASCA 113
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HSH -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 113
CORAM: QUINLAN CJ
BUSS P
MAZZA JA
HEARD: 10 FEBRUARY 2023
DELIVERED : 14 JULY 2023
FILE NO: CACR 37 of 2022
BETWEEN: HSH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: VERNON DCJ
File Number : IND [X] of 2020
Catchwords:
Criminal law – Appeal against sentence – Possession of a trafficable quantity of a prohibited drug namely methylamphetamine with intent to sell or supply – Whether sentence partly concurrent with existing sentence – Whether sentence manifestly excessive – Impact of totality on sentence – Appeal dismissed
Legislation:
Misuse of Drugs Act 1981 (WA)
Sentence Administration Act 2003 (WA), s 3, s 4, s 6, s 7
Sentencing Act 1995 (WA), s 85, s 87, s 88, s 93, s 94
Result:
Leave to add additional ground of appeal granted
Leave to appeal on grounds 1 and 2 granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | E R Zillessen |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Legal Aid - Perth - Criminal Appeals |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
ATH v The State of Western Australia [2021] WASCA 149
Aung v The State of Western Australia [2022] WASCA 175
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Beasley v The State of Western Australia [2012] WASCA 80
Blasco v The State of Western Australia [2021] WASCA 26
Carlucci v The State of Western Australia [2019] WASCA 37; (2019) 276 A Crim R 472
Chief Executive Officer of the Department of Corrective Services v Jackson [2009] WASCA 51
Cochrane v The State of Western Australia [2021] WASCA 5; (2021) 57 WAR 262
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428
FZA v The State of Western Australia [2022] WASCA 124
Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443
Hayden v The Queen [2003] WASCA 210
HSV v The State of Western Australia [2020] WASCA 5; (2020) 281 A Crim R 147
Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447
Kabambi v The State of Western Australia [2019] WASCA 44
Kirby v The Queen [2003] WASCA 164
KJL v The State of Western Australia [2021] WASCA 65
Le v The State of Western Australia [2022] WASCA 163
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McConnell v The State of Western Australia [2020] WASCA
McGrath v The State of Western Australia [2021] WASCA 118
Narkle v Hamilton [2008] WASCA 31
Nickson v The State of Western Australia [2021] WASCA 40
Papp v The State of Western Australia [2020] WASCA 125
Pedersen v The State of Western Australia [2010] WASCA 175
Pedrochi v Brown [2021] WASC 81
Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
Ramachandran v The State of Western Australia [2021] WASCA 54
SBJ v The State of Western Australia [2019] WASCA 32; (2019) 54 WAR 310
SYL v The State of Western Australia [2021] WASCA 16
The State of Western Australia v Delaney [2020] WASCA 93
The State of Western Australia v Stocker [2022] WASCA 178
Trainor v The State of Western Australia [2021] WASCA 36
Vagh v The State of Western Australia [2007] WASCA 17
Watson v The State of Western Australia [2022] WASCA 80
YLT v The State of Western Australia [2020] WASCA 217
Table of Contents
QUINLAN CJ & MAZZA JA:
Introduction and summary
Circumstances of the offending
Sentencing remarks
Net effect of the sentences
Grounds of appeal
Ground 2 – statutory context
Ground 2 – the parties' submissions
Ground 2 – disposition
Ground 1 – applicable sentencing principles
Ground 1 – disposition
Conclusion
BUSS P:
The facts and circumstances of the appellant's offending, the appellant's personal circumstances, the sentencing remarks of Vernon DCJ and Sweeney DCJ and the submissions of the parties
The organisation of the balance of my reasons
Ground 2: the appellant's submissions
Ground 2: the ordinary and natural meaning of the words 'cumulative' and 'concurrent'
Ground 2: relevant provisions of the Sentence Administration Act 2003 (WA)
Ground 2: relevant provisions of the Sentencing Act
Ground 2: its merits
Ground 2: conclusion
Ground 1: its merits
Ground 1: conclusion
QUINLAN CJ & MAZZA JA:
Introduction and summary
On 8 April 2022, the appellant was sentenced by Vernon DCJ, on his plea of guilty, to a term of 3 years and 6 months imprisonment for one count of possessing a trafficable quantity of a prohibited drug, namely methylamphetamine, with intent to sell or supply. The total weight of the drugs in the appellant's possession was 70.7 g. The sentence was ordered to have commenced on 4 April 2022 and the appellant was made eligible for parole.
The maximum penalty for that offence is life imprisonment.
At the time that he was sentenced by Vernon DCJ, the appellant was already serving a total effective sentence of 2 years and 2 months imprisonment imposed by Sweeney DCJ on 11 June 2021, in relation to two further offences on the same indictment (namely one count of possessing methylamphetamine, with intent to sell or supply, and one count of failing to obey a data access order). That total sentence of 2 years and 2 months imprisonment was ordered to have commenced on 28 April 2020.
Accordingly, for the three offences the subject of the indictment, the appellant was sentenced to a total of 5 years, 5 months and 5 days imprisonment. In sentencing the appellant on 8 April 2022, Vernon DCJ expressly said that she had reduced the sentence imposed by her Honour from 4 years and 8 months imprisonment by reason of the totality principle.
The appellant now appeals from the sentence of 3 years and 6 months imprisonment imposed by Vernon DCJ.
Initially, the appellant appealed on a single ground of appeal, namely that the sentence of 3 years and 6 months imprisonment is manifestly excessive.
Following the hearing of the appeal, the Court invited the appellant to give consideration to whether the sentence imposed by Vernon DCJ contravened s 88(4) of the Sentencing Act 1995 (WA) (Sentencing Act). In that regard, as will be apparent, the commencement date of the sentence imposed by Vernon DCJ (4 April 2022) was a date after the earliest date upon which the appellant could have been released in relation to the term of imprisonment imposed by Sweeney DCJ.
The appellant applied for leave to amend the grounds of appeal to add a ground that the sentence imposed by Vernon DCJ contravened s 88(4) of the Sentencing Act. The parties filed written submissions in relation to that issue.[1] The respondent submitted, in particular, that s 88(4) of the Sentencing Act had no application, as the learned sentencing judge had not exercised the power in s 88(3) to order that the sentence of 3 years and 6 months imprisonment be served 'partly concurrently' with the sentence imposed by Sweeney DCJ, within the meaning of that provision.
[1] Appellant's Supplementary Submissions dated 13 March 2023 and Respondent's Supplementary Submissions dated 20 March 2023. The Court also received, without the need for a formal order, brief submissions in reply from the appellant (by email dated 23 March 2023).
While we would grant leave to add the additional ground, and grant leave to appeal in relation to the ground for the reasons set out below, the ground has not been made out. In short, we accept the respondent's submission that the sentence imposed by the learned sentencing judge was not ordered to be served 'partly concurrently' with the term imposed by Sweeney DCJ within the meaning of s 88(3) of the Sentencing Act.
In relation to the ground of manifest excess, the focus of the appellant's submissions on the appeal was that the sentence of 3 years and 6 months imprisonment did not adequately reflect the matters referred to in the confidential schedule to these reasons (Schedule). Subject to limited exceptions, the Schedule will be the subject of a non‑publication order. The appellant does not allege that Vernon DCJ failed to take into account the matters referred to in the Schedule but, rather, that they were not appropriately reflected in the sentence itself. Hence the ground of appeal asserts implied error.
For the reasons that follow, we would also reject that ground of appeal. In our view, having regard to all of the circumstances of the case (including the impacts of totality and the matters referred to in the Schedule), it cannot be concluded that the sentence of 3 years and 6 months imprisonment was unreasonable or plainly unjust. It cannot be inferred that the learned sentencing judge was in error.
The appeal should therefore be dismissed.
We turn to the circumstances of the offending, including (for the purposes of context) the offending the subject of the sentences imposed by Sweeney DCJ.
Circumstances of the offending
Of the three offences the subject of the indictment, the offence for which Vernon DCJ sentenced the appellant, possessing a trafficable quantity of methylamphetamine with intent to sell or supply was committed first in time. It was committed in March 2019.
On a day in March 2019, at about 1.20 am, the appellant was a passenger in a vehicle that was stopped and searched by police. During the search, police located a small magnetic lock box in the boot, inside which were two clip seal bags. Both clip seal bags contained methylamphetamine. The first bag contained 55.7 g of the drug, with a purity of 77% and the second bag contained 15 g, with a purity of 78%. The total weight of the methylamphetamine was 70.7 g.
The appellant was also searched, and in his pants were two yellow Post‑it Notes that were stuck together. On one side were handwritten names and numbers, consistent with a 'tick list' and on the other side were a series of handwritten numbers. Those numbers appeared to correspond with the date, value and weight in ounces of the methylamphetamine that was located in the boot of the car.
Telephone intercept data from February 2019 onward also indicated the appellant's involvement in the sale of prohibited drugs including the use of encrypted communication applications, Wickr and Signal. Police later searched a location being rented by the appellant. At that location, police located digital scales, Apple iPads, and a notebook containing several pages of notations consistent with tick lists.
The offences for which the appellant was sentenced by Sweeney DCJ were committed over a year later in April 2020 and May 2020, respectively.
One evening in April 2020, after being followed by police while driving a car, the appellant was searched. The appellant was found to have a sock wedged between his buttocks underneath his underwear. Inside the sock were two clip seal bags containing 4.09 g of methylamphetamine (with a purity of 37%) and 13.5 g of methylamphetamine (with a purity of 4%). The total weight of the methylamphetamine was 17.59 g.
In relation to this offence, namely one count of possessing methylamphetamine, with intent to sell or supply, Sweeney DCJ sentenced the appellant to 20 months imprisonment.
In May 2020, following his arrest, the appellant was served with a data access order, requiring him to provide access to an iPhone seized from him at the time of his arrest. The appellant failed to obey the order.
In relation to this offence, namely failing to obey a data access order, Sweeney DCJ sentenced the appellant to 6 months imprisonment, to be served cumulatively on the sentence referred to in [20] above.
Sentencing remarks
Vernon DCJ, having referred to the facts of the offence and the maximum penalty of life imprisonment, made a number of findings in relation to the seriousness of the offence committed in March 2019.
The learned sentencing judge observed that the seriousness of the offence was found in the quantity and the purity of the methylamphetamine, the quantity being just over two and a half times the trafficable quantity of 28 g. Her Honour accepted that the appellant was, in effect, acting as a courier, who was tasked by a dealer to deliver the drugs to a purchaser and return with the purchase price of $12,000. For performing this task, the appellant was to be given an eight-ball (3.5 g) of methylamphetamine.
The learned sentencing judge said that the fact that the appellant was trusted with such a quantity of methylamphetamine and with the proceeds of sale indicated that he was a trusted person to the dealer of methylamphetamine.
Her Honour recorded that the appellant acknowledged that at the time, he was in the business of commercial drug dealing himself in quantities between a half-ball and an eight-ball (1.75 g to 3.5 g). The courier job was therefore a means of sourcing material for his own commercial drug dealing.
The learned sentencing judge was provided with, and referred to, a report from an addiction recovery clinic (Clinic), in relation to counselling for the appellant's substance abuse (including morphine and methylamphetamine) and his offending. The report from the Clinic confirmed that the appellant's drug dealing was not only to support his own drug use but to generate income generally.
Turning to his personal circumstances, the learned sentencing judge observed that, at the time of sentencing, the appellant was 50 years of age. He grew up in a religious family that was supportive of him, including paying for some of his rehabilitation and planning for his employment in the future.
The appellant had reported a number of intimate relationships over his adult life, as well as having children and stepchildren. He had a long and varied working life and, while in prison, had a trusted role within the prison system.
The appellant suffered a significant injury in his early adulthood, which led to an addiction to morphine and then methylamphetamine, which he began using in the decade prior to his offending. The appellant had been abstinent from drug use while in prison and had undertaken 18 and a half hours of therapy with the Clinic. The author of the report from the Clinic considered that the appellant had gained insight into his drug use and was practising strategies to avoid relapse into drug use.
The appellant had a record of previous convictions for drug offences, although no convictions for dealing in drugs. The appellant's role in the methylamphetamine related offence for which he was sentenced by Sweeney DCJ was also accepted to be that of a courier.
Vernon DCJ determined that she would reduce the head sentence by 10% for the appellant's plea of guilty, which her Honour said was entered shortly prior to trial but which nevertheless had benefited the administration of justice.
The learned sentencing judge said that she accepted that 'in light of all of the information that' was before her Honour, including his plea of guilty and his attempts to rehabilitate himself from drug use, that the appellant was genuinely remorseful for his offending. The reference to 'all of the information' by her Honour may be an oblique reference to the matters referred to in the Schedule. Her Honour later confirmed that she had 'incorporated a reduction for all of the matters that I have been informed about'.
The learned sentencing judge accepted that there was a somewhat limited connection between the appellant's offending and his own drug use but said that it was difficult to make an assessment of his risk of reoffending. Her Honour accepted that it was the appellant's desire to avoid offending in the future and that he had family support in that regard.
The learned sentencing judge referred to the issue of totality and indicated, that but for totality, her Honour would have imposed a term of 4 years and 8 months imprisonment. Having regard to all of the circumstances of the case her Honour reduced the sentence to 3 years and 6 months. The learned sentencing judge made an order that the sentence be taken to have commenced on 4 April 2022 and the appellant was made eligible for parole. The 'backdating' of the sentence by four days was on account of 'time in custody', the State having advised her Honour that there were 'still four days available for the offender for backdating'.
The learned sentencing judge did not expressly state whether the sentence was to be served concurrently or cumulatively with the sentence imposed by Sweeney DCJ. Nevertheless, it is apparent from her Honour's explanation of the sentence, pursuant to s 34(2) of the Sentencing Act, that it was to operate concurrently with the sentence imposed by Sweeney DCJ. Her Honour stated that the appellant would be eligible for parole after he had served 21 months from 4 April 2022. The Certificate of Final Outcome also recorded that the sentence was 'concurrent'.
Net effect of the sentences
The net effect of the sentences imposed by Sweeney DCJ and Vernon DCJ was that for the three offences the subject of the indictment, the appellant was sentenced to a total of 5 years, 5 months and 5 days imprisonment.
In that regard, the sentence of 2 years and 2 months imprisonment imposed by Sweeney DCJ commenced on 28 April 2020. The sentence imposed by Vernon DCJ commenced on 4 April 2022. By that date, the appellant had served 1 year, 11 months and 6 days of the sentence imposed by Sweeney DCJ, with 2 months and 25 days remaining. As the remaining portion of that sentence was to be served concurrently, the additional 3 years and 6 months imposed by Vernon DCJ, results in the total effective sentence for all of the offences of 5 years, 5 months and 5 days imprisonment.
We turn to the grounds of appeal.
Grounds of appeal
As stated at the beginning of the reasons, we would grant leave to add the additional ground of appeal, pursuant to the application in the appeal dated 13 March 2023.
Accordingly, the grounds of appeal are as follows:
1.The sentence imposed was manifestly excessive having regard to the circumstances of the offence, [the matters referred to in the Schedule] and sentencing standards.
2.The learned sentencing judge erred at law by imposing a sentence (on 8 April 2022) that was contrary to law, in that it contravened s 88(4) of the Sentencing Act.
It is convenient to deal first with ground 2.
Ground 2 – statutory context
Part 13 div 2 of the Sentencing Act deals with imprisonment as a sentencing option. That part makes various provision for the commencement of terms of imprisonment and for their accumulation or concurrency. As will be apparent, those provisions must be understood in the context of related provisions in the Sentence Administration Act 2003 (WA) (Sentence Administration Act).
Section 87 of the Sentencing Act provides:
87.Time on remand may be taken into account
(1)If when an offender is being sentenced to imprisonment for an offence –
(a)the offender has previously spent time –
(i)in custody in respect of the offence for which the offender is being sentenced; or
(ii)in custody in respect of another offence, while on bail for the offence for which the offender is being sentenced;
and
(b)the sentencing court decides that that time should be taken into account,
the court may take that time into account –
(c)if it imposes a fixed term, by reducing that term by an appropriate period; or
(d)by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence.
(2)Subsection (1)(a)(i) does not apply if the time in custody has already been taken into account in sentencing for another offence under subsection (1)(a)(ii).
Section 88 of the Sentencing Act deals with concurrent, cumulative and partly cumulative terms. It provides:
88.Concurrent, cumulative or partly cumulative terms
(1)An offender sentenced to a fixed term is to serve that term concurrently with any other fixed term that he or she is serving or has yet to serve, unless the sentencing court makes an order under subsection (3).
(2)An offender sentenced at the one time to one or more fixed terms is to serve those terms concurrently, unless the court makes an order under subsection (3).
(3)If at the time an offender is sentenced to a fixed term –
(a)the offender is serving or has yet to serve another fixed term imposed previously; or
(b)the offender is then also sentenced to serve another fixed term,
the sentencing court may order that –
(c)the fixed term is to be served cumulatively on the other fixed term; or
(d)the fixed term is to be served partly concurrently with the other fixed term.
(4)If under subsection (3)(d) a court orders that a term is to be served partly concurrently with another fixed term, the court must specify the period of the other fixed term that is to be served before the partly concurrent term is to begin, but that period must not extend beyond the earliest date on which the offender could be released (whether on parole or not) in relation to the other fixed term.
(5)An offender sentenced to life imprisonment is to serve that sentence concurrently with any other term that he or she is serving or has yet to serve.
Section 94 of the Sentencing Act, in turn, makes the following provision in relation to parole terms:
94.Aggregation of parole terms for certain purposes
(1)In the case of a prisoner serving 2 or more parole terms –
(a)the time when he or she is eligible to be released on parole; and
(b)the parole period for such a prisoner,
are to be calculated by reference to the aggregate of those terms, but only if under subsection (3) or (4) those terms are to be aggregated.
(2)If under this section the matters referred to in subsection (1) are not to be calculated by reference to the aggregate of 2 or more parole terms, the matters are to be calculated in respect of each of the 2 or more parole terms separately.
(3)A parole term imposed at the same time as another parole term is to be aggregated with that other term for the purposes of subsection (1) unless it is to be served partly concurrently with that other term.
(4)A parole term imposed at a different time to another parole term is to be aggregated with that other term for the purposes of subsection (1) unless –
(a)it is to be served concurrently with that other term or partly concurrently with it; or
(b)the other term was imposed before the commencement of Part 2 Division 4 of the Sentencing Legislation Amendment and Repeal Act 2003.
(5)Subject to this section, a parole term, or an aggregate of parole terms, may be aggregated with the aggregate of 2 or more other parole terms, but a parole term, or an aggregate of parole terms, imposed before the commencement of Part 2 Division 4 of the Sentencing Legislation Amendment and Repeal Act 2003 is not to be aggregated with a parole term, or aggregate of parole terms, imposed after that commencement.
(6)For the purposes of applying this section a reference in this Part or in the Sentence Administration Act 2003 to a prisoner serving a parole term is, where necessary, to be taken as including a reference to a prisoner serving more than one parole term and in such a case, if under this section the terms can be aggregated, the reference to the term is to be taken as being a reference to the aggregate of the terms.
Table showing some examples of the operation of this section and sections 88 and 93, and section 7 of the Sentence Administration Act 2003 Parole term 1 Parole term 2 Whether concurrent etc. Effect 4 years 6 years Concurrent Aggregation of terms permitted for parole calculations.
Aggregate = 6 years.
Non-parole period = 4 years.
(Calculated on aggregate).
If not paroled, serve 6 years.
4 years 6 years Cumulative Aggregation of terms permitted for parole calculations.
Aggregate = 10 years.
Non-parole period = 8 years.
(Calculated on aggregate).
If not paroled, serve 10 years.
4 years 6 years Partly concurrent:
1 year of term 1 to be served before term 2 begins.
(See s. 88(4))
Aggregation of terms not permitted for parole calculations.
Serve 1 year of term 1.
Then begin serving term 2 concurrently with rest of term 1.
Non-parole period on term 2 = 4 years.
Result: serve 5 years before eligible for parole.
If not paroled, serve 7 years.
As noted above, these provisions must be understood in the context of the provisions of the Sentence Administration Act.
Section 6 of the Sentence Administration Act provides:
6.When a term begins
(1)Unless this section provides otherwise or an order is made under section 87(1)(d) or 88(3) of the Sentencing Act 1995, a term, other than indefinite imprisonment, begins on the day it is imposed, or if the prisoner is not then in custody, on the day he or she is arrested under a warrant issued in respect of the sentence.
(2)If a term is cumulative on one or more other terms then that term begins on the earliest date on which the prisoner could be released in relation to the last to be served of those other terms, whether or not the release would otherwise be under –
(a)a parole order; or
(b)a recognizance release order, or a parole order, made under the Crimes Act 1914 of the Commonwealth.
Section 7 of the Sentence Administration Act provides:
7.Order of service of fixed terms
(1)In this section –
fixed term includes –
(a)a period of imprisonment ordered under section 58, 59 or 119A of the Sentencing Act 1995; and
(b)a period of imprisonment specified in a warrant of commitment issued under the Fines, Penalties and Infringement Notices Enforcement Act 1994;
non-parole period, in relation to a parole term, means the period that under section 93(1) of the Sentencing Act 1995 the prisoner has to serve before he or she is eligible to be released on parole.
(2)A prisoner who has to serve 2 or more fixed terms is to serve those terms in this order –
(a)firstly, those that are not parole terms are to be served according to whether they are concurrent, partly concurrent or cumulative with one another;
(b)secondly, subject to sections 94 and 95A of the Sentencing Act 1995 and subsection (3), the non-parole periods of those that are parole terms are to be served according to whether those parole terms are concurrent, partly concurrent or cumulative with one another;
(c)thirdly, subject to sections 94 and 95A of the Sentencing Act 1995 and subsection (3), unless and until released on parole, the balance of any parole terms after the end of any non-parole periods are to be served –
(i)cumulatively if the terms are cumulative;
(ii) concurrently if the terms are concurrent or partly concurrent.
(3)If after the commencement of Part 2 Division 4 of the Sentencing Legislation Amendment and Repeal Act 2003 a prisoner who is serving, or has yet to serve, a parole term imposed before the commencement of that Division is sentenced to serve another parole term, then –
(a)the non-parole periods of the terms are to be served according to whether the parole terms are concurrent, partly concurrent or cumulative with one another; and
(b)the balance of the parole terms after the end of any non-parole periods are to be served concurrently irrespective of whether the parole terms are concurrent, partly concurrent or cumulative with one another.
(4)If while serving a fixed term a prisoner is sentenced to serve another fixed term, other than a fixed term ordered to be served partly concurrently with another term, service of the former is suspended if necessary so that the terms can then be served in the order required by subsection (2).
Ground 2 – the parties' submissions
The appellant submitted, correctly, that the earliest date upon which the appellant could have been released on the sentence imposed by Sweeney DCJ was 27 May 2021, being 1 year and 1 month after that sentence was ordered to have commenced (28 April 2020).
Accordingly, the appellant submitted, that by ordering the sentence of 3 years and 6 months imprisonment (the second sentence) to have commenced on 4 April 2022, Vernon DCJ:
(a)imposed a term of imprisonment that was partly concurrent with the term imposed by Sweeney DCJ (the first sentence), within the meaning of s 88(3) of the Sentencing Act;
(b)by inference, set the period of the first sentence to be served before the second sentence was to begin as the period between 28 April 2020 and 4 April 2022, being a period of 1 year, 11 months and 6 days after the commencement of the first sentence; and
(c)that period extended beyond the earliest date upon which the appellant could have been released in relation to the first sentence.
As a consequence, the appellant submitted, Vernon DCJ specified a period of the first sentence to be served before the second sentence was to begin that extended beyond the earliest date upon which the appellant could have been released on the first sentence. This, the appellant submitted, was contrary to s 88(4) of the Sentencing Act.
The respondent did not challenge the appellant's submissions as to the relevant commencement dates of the first sentence and the second sentence. Nor did it challenge the proposition that the commencement date of the second sentence was after the earliest date upon which the appellant could have been released on the first sentence.
Nevertheless, the respondent submitted that, by ordering the second sentence to have commenced on 4 April 2022:
(a)Vernon DCJ was exercising the power to order that the second sentence be taken to have commenced on a specified day pursuant to s 87(1)(d) of the Sentencing Act;
(b)her Honour was not exercising the power to order, pursuant to s 88(3)(d) of the Sentencing Act, that the second sentence be served 'partly concurrently' with the first sentence; and
(c)as her Honour did not exercise the power, pursuant to s 88(3)(d) of the Sentencing Act, to order that the second sentence be served 'partly concurrently' with the first sentence, s 88(4) had no application.
In support of its contention, the respondent submitted that a term of imprisonment was only 'partly concurrent' within the meaning of the Sentencing Act and the Sentencing Administration Act in circumstance in which the sentencing court makes an order pursuant to s 88(3) of the Sentencing Act. The respondent submitted that the mere fact that two sentences have different commencement dates does not make those terms 'partly concurrent' within the meaning of s 88(3) of the Sentencing Act.
The respondent submitted that the purpose of the prohibition in s 88(4) of the Sentencing Act was to avoid the potential risk that a person sentenced to a second term of imprisonment to be served 'partly concurrently' with an earlier term of imprisonment might be released on parole on the earlier term before the second term commences, requiring the offender to be returned to prison.
That risk, the respondent submitted, could not arise in a case (such as the present) in which the second term of imprisonment is to commence on the date on which it is imposed (or some earlier date). In such a case the offender is in the custody of the court and does need to be apprehended on some future date.
In reply, the appellant submitted that whenever a sentence is imposed on an offender on a date falling between the first and final dates of an existing term of imprisonment, the second sentence will, in substance, be 'partly concurrent', with the existing sentence if it extends beyond the existing sentence. In such a case, the second sentence is 'partly concurrent' with the first sentence (within the meaning of s 88(3)(d) of the Sentencing Act), irrespective of whether the source of the power is identified expressly by the sentencing judge and, in such a case, the prohibition in s 88(4) will apply.
Ground 2 – disposition
Ground 2, ultimately, raises an issue of statutory construction, and in particular whether, on a proper construction of s 88(3)(d) of the Sentencing Act, the sentence imposed by Vernon DCJ was ordered to be 'partly concurrent' with the sentence imposed by Sweeney DCJ, within the meaning of s 88(3)(d). If, as the appellant contends, Vernon DCJ did, implicitly, order that the fixed term that she imposed was to be served 'partly concurrently' with the term imposed by Sweeney DCJ, it would follow that s 88(4) was contravened (there being no question that the commencement date of the second sentence was after the earliest date upon which the appellant could have been released on the first sentence).
In this context, it must be acknowledged, as has been observed by this Court, that the Sentencing Act as a whole is replete with unnecessary complexities that have vexed both sentencing judges and this Court in the past, as illustrated by decisions such as SBJ v The State of Western Australia[2] and The State of Western Australia v Stocker.[3] Partly concurrent (and what were previously called 'partly cumulative') sentences, have served to add to that complexity, both by sidetracking sentencing courts, as the Full Court observed, 'into the arid wilderness of parole period calculations'[4] and requiring correction of sentences and complex calculations as to parole eligibility.[5]
[2] SBJ v The State of Western Australia [2019] WASCA 32; (2019) 54 WAR 310.
[3] The State of Western Australia v Stocker [2022] WASCA 178 (The State of Western Australia v Stocker).
[4] Kirby v The Queen [2003] WASCA 164 [113] (Roberts‑Smith J; Murray & Wheeler JJ agreeing).
[5] See Chief Executive Officer of the Department of Corrective Services v Jackson [2009] WASCA 51; Beasley v The State of Western Australia [2012] WASCA 80.
For the reasons that follow, however, those complexities were avoided in the present case. That is because, in our view, Vernon DCJ did not order that the fixed term that she imposed was to be served 'partly concurrently' with the term imposed by Sweeney DCJ under s 88(3)(d) of the Sentencing Act. Likewise, properly construed, the sentence imposed by Vernon DCJ was not 'partly concurrent' with the sentence imposed by Sweeney DCJ. It was, rather, a sentence that was to be served 'concurrently' with the first sentence, by operation of s 88(1) of the Sentencing Act. As we will explain, the mere fact that one concurrent term expires before another concurrent term does not, by itself, have the consequence that the latter term is 'partly concurrent' within the meaning of the Sentencing Act.
Neither the Sentencing Act nor the Sentence Administration Act provide a definition of the phrases 'partly concurrent' or 'partly concurrently'.[6] Those phrases therefore take their meaning from the context of the provisions in which they appear and the substantive effect of those provisions. Save for s 85(2) of the Sentencing Act, all of the provisions containing the phrases 'partly concurrent' or 'partly concurrently' are those reproduced in [44] to [49] above.
[6] There is, likewise, no definition of the word 'cumulatively'.
The critical provisions for defining the operative effect of a 'concurrent', 'partly concurrent' or 'cumulative' term of imprisonment are s 94 of the Sentencing Act and s 7 of the Sentence Administration Act. It is those provisions that determine what each kind of term means, in practice, for an offender sentenced to multiple terms. And it is in the context of the application of those provisions that the identification of a term as 'partly concurrent' has any significance.
In that context, in our view, it is apparent that a sentence will only be 'partly concurrent' if it is one which is so ordered by the court under s 88(3)(d) of the Sentencing Act. It is only in such a case that the court is required to specify the period of the other fixed term that must be served before the partly concurrent term commences. Indeed, it is the first part of s 88(4) (that is, all of the words up to the word 'but') that results in a 'partly concurrent' term having the effect of being neither 'concurrent' nor 'cumulative'. Depending upon the circumstances of the particular case, the end of the period 'specified' by the court making an order that a fixed term is partly concurrent could be in the past (i.e. the offender has already served the specified period of the previous fixed term) or the end of the specified period could be in the future (i.e. the offender has yet to serve the specified period of the previous fixed term).
The objectively discernible legislative purpose of the proviso in s 88(4) (that is, the words including and after the word 'but'), in our view, is principally directed to the second of these possibilities; namely the circumstance in which the end of the period 'specified' is in the future. That purpose, in our view, is to prevent the circumstance arising in which an offender who is to serve a partly concurrent term at some time in the future is released (for example, on parole) at a time prior to the commencement of the partly concurrent term. In such a case, it would be necessary to return the offender to custody, a course which, as the respondent submitted, would be undesirable for both policy and practical reasons.
Hence, the purpose of the proviso in s 88(4) is to ensure the continuity of custody in the case of an offender sentenced to a fixed term and a partly concurrent term. The same legislative purpose is reflected, in the case of cumulative terms, in s 6(2) of the Sentence Administration Act, namely that a cumulative term commences on the earliest date that the prisoner could be released on the other term. In both provisions (s 88(4) of the Sentencing Act and s 6(2) of the Sentence Administration Act) the generally 'forward looking' purpose of the proviso is reflected in the phrase 'could be released', rather than, for example 'could have been released'.
Of course, the qualification in the second part of s 88(4) would apply according to its terms if, under that subsection, the period 'specified' by the court making an order that a fixed term is partly concurrent was in the past. Nevertheless, the 'mischief' to which the provision is directed is the mischief that we have identified.
So understood, there is no need for a provision such as the proviso to s 88(4) in the case of a fixed term that is imposed 'concurrently' (as opposed to 'partly concurrently') with an existing fixed term for which the offender is then in custody, including a term that is to be served concurrently by operation of s 88(1) of the Sentencing Act. In such a case, the sentence can only begin on the day it is imposed or on some earlier day specified under s 87(1)(d) of the Sentencing Act.[7]
[7] See Sentence Administration Act, s 6(1). If the offender is not in custody the sentence will begin once the prisoner has been arrested on a warrant issued in respect of the sentence.
In this context, it is clear, in our view, that a term that is to be served 'concurrently' with an existing fixed term (either under s 88(1) or pursuant to an order to that effect), does not cease to be a concurrent term simply because the existing term expires before the end of the concurrent term. That fact does not make such a term 'partly concurrent' within the meaning of the Sentencing Act. The vast majority of sentences imposed for multiple offences demonstrate that to be the case. It is a rare occurrence that, by coincidence or design, two or more terms to be served concurrently will have identical expiration dates. Usually, one of the 'concurrent' sentences will be completed before the other. In such a case the terms are properly characterised as 'concurrent' rather than partly concurrent.
This is indeed the case with the example of a 'concurrent' sentence given in the table forming part of s 94 of the Sentencing Act. In that example, the term in the column Parole term 2 of 6 years would extend beyond the term in the column Parole term 1 of 4 years. As the table makes clear, that does not have the result that the Parole term 2 is 'partly cumulative' (or conversely 'partly concurrent') with Parole term 1.
A term is therefore only 'partly concurrent' within the meaning of the Sentencing Act when there has been an order to that effect under s 88(3)(d).
Applied to the present case, it is clear, in our view, that Vernon DCJ did not purport to, nor did she, make an order that the term of imprisonment she imposed was 'partly concurrent' with the term imposed by Sweeney DCJ. Rather, by operation of s 88(1) of the Sentencing Act (and as reflected in the Certificate of Final Outcome), the sentence was to be served concurrently. The fact that the term extended beyond the expiration of the sentence imposed by Sweeney DCJ did not alter that position.
Nor did the fact that Vernon DCJ ordered that the sentence that she imposed be taken to have commenced on 4 April 2022 (four days before the date that the sentence was imposed) alter that position. In particular, in our view, by 'backdating' the sentence to 4 April 2022 her Honour was neither in form, nor in substance, exercising any power in s 88(3) or s 88(4) of the Sentencing Act. Rather, it is clear from her Honour's reference to the order having been made for 'time in custody' that it was an exercise of the power in s 87(1)(d) (see [35] above]).
For these reasons, while we would grant leave to appeal in relation to ground 2, the ground has not been made out.
Ground 1 – applicable sentencing principles
Ground 1 contends that the sentence of 3 years and 6 months was manifestly excessive, a species of implied error. The relevant principles are well established and have been summarised in many cases, including Kabambi v The State of Western Australia.[8] We need not repeat them.
[8] Kabambi v The State of Western Australia [2019] WASCA 44 [21] (Buss P, Mitchell & Pritchard JJA).
The application of sentencing principles in the context of drug trafficking has also been summarised by this Court on a number of occasions. As the Court said in Carlucci v The State of Western Australia:[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. 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 invariably be subsidiary considerations, but they are not irrelevant.
[9] Carlucci v The State of Western Australia [2019] WASCA 37; (2019) 276 A Crim R 472 [37] (Mazza, Mitchell & Beech JJA).
The seriousness of the appellant's offending, which involved the possession of trafficable quantities of methylamphetamine, with intent to sell of supply, must be assessed by reference to Parliament's view of the relative seriousness of possession of trafficable quantities of methylamphetamine, as reflected in the maximum penalty of life imprisonment.[10]
[10] HSV v The State of Western Australia [2020] WASCA 5; (2020) 281 A Crim R 147 [44] - [45] (Buss P, Mazza & Mitchell JJA).
Since the increase in the maximum penalty for possession of a trafficable quantity of methylamphetamine in 2017, a range of sentences customarily imposed for that offence has emerged from decisions of this Court. The parties to the present appeal referred to many of those decisions, including McConnell v The State of Western Australia,[11] The State of Western Australia v Delaney,[12] Papp v The State of Western Australia,[13] YLT v The State of Western Australia,[14] Cochrane v The State of Western Australia,[15] KJL v The State of Western Australia,[16] ATH v The State of Western Australia[17] and McGrath v The State of Western Australia.[18]
[11] McConnell v The State of Western Australia [2020] WASCA 59 (McConnell).
[12] The State of Western Australia v Delaney [2020] WASCA 93 (Delaney).
[13] Papp v The State of Western Australia [2020] WASCA 125 (Papp).
[14] YLT v The State of Western Australia [2020] WASCA 217 (YLT).
[15] Cochrane v The State of Western Australia [2021] WASCA 5; (2021) 57 WAR 262 (Cochrane).
[16] KJL v The State of Western Australia [2021] WASCA 65 (KJL).
[17] ATH v The State of Western Australia [2021] WASCA 149 (ATH).
[18] McGrath v The State of Western Australia [2021] WASCA 118.
A number of the decisions referred to by the parties were cases dealing with parity[19] or cases in which leave to appeal was refused.[20] Cases of that kind have little utility as a marker of the upper limits of the proper exercise of the sentencing discretion.[21] We have, nevertheless, had regard to all of those decisions, including other recent cases concerning possession of trafficable quantities of methylamphetamine, including Blasco v The State of Western Australia,[22] Trainor v The State of Western Australia,[23] Nickson v The State of Western Australia,[24] Ramachandran v The State of Western Australia,[25] Watson v The State of Western Australia,[26] and The State of Western Australia v Stocker.
[19] Such as McConnell and Papp.
[20] Such as ATH and YLT.
[21] See Pedrochi v Brown [2021] WASC 81 [43] (Quinlan CJ); Aung v The State of Western Australia [2022] WASCA 175 [45] (Beech, Vaughan & Hall JJA).
[22] Blasco v The State of Western Australia [2021] WASCA 26.
[23] Trainor v The State of Western Australia [2021] WASCA 36.
[24] Nickson v The State of Western Australia [2021] WASCA 40.
[25] Ramachandran v The State of Western Australia [2021] WASCA 54.
[26] Watson v The State of Western Australia [2022] WASCA 80.
Ground 1 – disposition
Ground 1 asserts implied error. The appellant does not allege that the learned trial judge made any express error. The question raised by the appeal is, therefore, whether the result produced in this case, namely the sentence of 3 years and 6 months imprisonment, was plainly unjust or unreasonable, such that we should imply error.
There are two matters that complicate the answer to that question in the present case.
The first is the difficulty posed in the evaluation of the significance of the matters referred to in the Schedule. That significance is itself a relevant sentencing factor. The appellant does not allege that the learned sentencing judge made an express error by failing to take into account the matters referred to in the Schedule. The parties to the appeal accepted that the learned sentencing judge did do so and, arguably, made an oblique reference to them in her sentencing remarks. Regrettably, however, her Honour did not prepare a confidential addendum to her sentencing remarks dealing with the matters referred to in the Schedule.
While this did not amount to an appellable error, in our view, it would have been distinctly preferable if the learned sentencing judge had prepared such a confidential addendum. At the very least, such an addendum could have included the learned trial judge's own assessment of the significance of the matters referred to in the Schedule.
As it is, for the purposes of the appeal, the parties were agreed as to the matters referred to in the Schedule, which are set out therein.
The second complicating feature of the present case is the ameliorating effect of totality on the sentence. As we have noted, the learned sentencing judge reduced the sentence from 4 years and 8 months imprisonment to 3 years and 6 months (i.e. a reduction of 14 months) by reason of totality, having regard to the sentence that the appellant was then serving.
For this reason, the appellant's submissions tended to approach the question of manifest excess by reference to the putative term of 4 years and 8 months imprisonment. The appellant submitted, for example, that '[a] broad view of comparable cases suggests that the sentence of 4 years and 8 months may not be just and may not appropriately reflect the circumstances when measured against [other] comparators'.[27]
[27] Appellant's Submissions [63] (WAB 16).
Of course, there can be no doubt that totality was a relevant factor, along with all other facts and circumstances and sentencing principles, in assessing whether the sentence in the present case was plainly unjust or unreasonable. The impact of totality is therefore an important consideration.
Nevertheless, the appeal is not to be determined as if the sentence was for a term of 4 years and 8 months imprisonment. That is because the application of totality itself is a matter of weight for the sentencing judge, in the overall exercise of the sentencing discretion. In the absence of an allegation of express error, the relative weight given to one mitigating factor (such as the matters referred to in the Schedule) compared to another ameliorating factor (totality) will not manifest error unless the overall sentence is plainly unjust or unreasonable.
In the present case, for example, it could be argued that, considered in isolation, the reduction of 14 months for totality was generous in all of the circumstances. In that case, whether insufficient weight being given to the matters referred to in the Schedule gave rise to an implied error would need to take into account the weight given to the other sentencing factors, including totality. The question would still remain whether the final result, of 3 years and 6 months imprisonment, was plainly unjust or unreasonable, having regard to all relevant matters including totality and the matters referred to in the Schedule.
So understood, in our view, the sentence imposed by the learned sentencing judge was not plainly unjust or unreasonable.
As to the sentences customarily imposed for this offence, a number of the decisions of this Court since the increase in the maximum penalty to life imprisonment have involved amounts of methylamphetamine and other circumstances that are broadly consistent with the present case.
McConnell, for example, concerned sentences, following pleas of guilty, in relation to two offences: one count of possessing a trafficable quantity of methylamphetamine with intent to sell or supply (count 1); and one count of possessing 2.5 g of MDMA with intent to sell or supply (count 2). The total quantity of the methylamphetamine was 60.94 g (between 77% and 81% purity). As in the present case, the appellant in McConnell had a tick list when apprehended and was characterised as a 'user-dealer' with an element of commercial gain in his offending.
The Court in McConnell allowed an appeal from a total effective sentence of 5 years and 9 months on parity grounds. It was not necessary for the Court to consider an additional ground of manifest excess. On resentencing, the Court sentenced the appellant in McConnell to 4 years and 8 months imprisonment. In doing so, the Court allowed a discount of 15% for the appellant's plea of guilty and it recognised that the sentence was at the lower end of the range of appropriate sentences (given that the resentencing was required by reason of parity).
The total quantity of drugs in McConnell (albeit of two kinds) was less than that in the present case and the reduction for the plea of guilty was greater. Taking into account the reduction for totality in the present case, McConnell provides no indication of error in the sentence imposed in the present case. Indeed, applying the appellant's focus on the learned sentencing judge's 'pre‑totality' term of 4 years and 8 months imprisonment, McConnell would suggest that the sentence in the present case, having regard to the distinguishing features including the matters referred to in the Schedule, was well within a sound exercise of sentencing discretion.
Delaney was a State appeal against sentence. The offender (34 years old at the time of sentencing) was sentenced, on his guilty plea, in relation to two offences: one count of possession of a trafficable quantity of methylamphetamine, with intent to sell or supply (count 1); and one count of possessing $1,750 in cash which was reasonably suspected to have been unlawfully obtained (count 2). The total amount of methylamphetamine was 111.51 g (between 70% and 78% purity). Following a discount of 25% for the plea of guilty, the sentencing judge sentenced the offender in Delaney to 3 years and 2 months imprisonment on count 1 and 10 months imprisonment on count 2, to be served concurrently.
On appeal, this Court concluded that the sentence on count 1 was manifestly inadequate and the offender was resentenced to 4 years and 9 months imprisonment. The Court observed that the offending in Delaney was a 'relatively serious example of its type',[28] in which the offender was conducting a drug dealing business for profit and that while the offender had expressed a desire to take concrete steps towards rehabilitation, no demonstrated steps had yet been shown.
[28] Delaney [36].
Having regard to the greater quantity of drugs and the offender's personal conduct of a drug dealing business for profit, the criminality of the offending in Delaney was somewhat higher than in the present case. At the same time, the offender in Delaney was afforded a 25% discount for his plea of guilty and there were features of his personal background that had an additional mitigating effect. Delaney provides no indication of error in the sentence imposed in the present case.
Finally, in Cochrane the appellant was convicted, on his plea of guilty, of one count of possessing a trafficable quantity of methylamphetamine with intent to sell or supply. The quantity of methylamphetamine was 47.13 g. The appellant in Cochrane was a courier, and beyond the receipt of a small portion of the drugs for his own use, he did not have a commercial purpose for the offence. He was afforded the maximum discount (25%) for his plea of guilty. Other than his younger age (40 years), the appellant in Cochrane had very similar antecedents to the appellant in the present case.
The sentencing judge in Cochrane imposed a sentence of 5 years and 6 months imprisonment. On appeal, this Court, while granting leave to appeal, dismissed an appeal on the ground of manifest excess. It will be apparent that, when regard is had to the lower criminality and greater discount for the plea of guilty in that case, the sentence upheld in Cochrane was substantially higher than that in the present case, even taking into account totality and the matters referred to in the Schedule.
Cochrane does not suggest any error in the sentence imposed in the present case.
The appellant in this case committed a serious drug offence. As the authorities reveal, the major sentencing considerations for offences of this type are general and personal deterrence. The appellant's involvement in the illegal trade in methylamphetamine called for a term of imprisonment that would achieve that necessary deterrence. The appellant's efforts and motivation towards rehabilitation were to his credit, but there was nothing exceptional about his personal circumstances.
In all of the circumstances, despite the absence of a confidential addendum as to the matters referred to in the Schedule, there is no basis to conclude from the sentence imposed by the learned sentencing judge that her Honour's consideration of those matters involved any error. On the contrary, in our view, in the absence of the matters referred to in the Schedule, the appellant could have expected a significantly greater sentence than he received. The sentence was not plainly unjust or unreasonable.
As we have said, it would have been distinctly preferable if the learned sentencing judge had prepared a confidential addendum to her sentencing remarks dealing with the matters referred to in the Schedule. For that reason we would grant leave to appeal on ground 1. We would, however, not uphold the ground.
Conclusion
In light of the foregoing, we would made the following orders:
(a)the application in the appeal dated 13 March 2023 to add an additional ground is granted;
(b)leave to appeal on grounds 1 and 2 is granted; and
(c)the appeal is dismissed.
BUSS P:
The appellant has appealed against a sentence of 3 years 6 months' immediate imprisonment imposed by Vernon DCJ.
The appellant was charged on indictment IND [X] of 2020 dated 21 January 2021 with four counts.
Count 1 alleged that on 18 March 2019, at a Perth suburb, the appellant was in possession of a thing capable of being stolen, namely a sum of money, that is reasonably suspected to have been stolen or unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) (the Code).
Count 2 alleged that on 30 March 2019, at a Perth suburb, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply to another, and that the offence involved a trafficable quantity of methylamphetamine, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
Count 3 alleged that on 28 April 2020, at a Perth suburb, the appellant had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply to another, contrary to s 6(1)(a) of the MD Act.
Count 4 alleged that on 12 May 2020, in Western Australia, the appellant having been served with a data access order and, without reasonable excuse, did not obey that data access order, contrary to s 61(2) of the Criminal Investigation Act 2006 (WA).
The appellant was convicted upon his pleas of guilty of counts 2, 3 and 4.
The State discontinued count 1.
The maximum penalty for count 2 is life imprisonment. The maximum penalty for count 3 is 25 years' imprisonment or a fine of $100,000 or both. The maximum penalty for count 4 is 5 years' imprisonment.
On 11 June 2021, the appellant was sentenced by Sweeney DCJ for counts 3 and 4. Count 3 concerned the possession of 17.59 g of methylamphetamine (4.09 g having a purity of 37% and 13.5 g having a purity of 4%).
The sentences imposed by Sweeney DCJ were as follows:
(a)count 3: 20 months' immediate imprisonment; and
(b)count 4: 6 months' immediate imprisonment.
Sweeney DCJ ordered that the individual sentences for counts 3 and 4 be served cumulatively. The total effective sentence was therefore 2 years 2 months' immediate imprisonment. The total effective sentence was backdated to 28 April 2020. A parole eligibility order was made.
On 8 April 2022, the appellant was sentenced by Vernon DCJ for count 2. Count 2 involved the possession of 70.7 g of methylamphetamine with a purity between 77% and 78%.
The sentence imposed by Vernon DCJ for count 2 was 3 years 6 months' immediate imprisonment (reduced from 4 years 8 months in the application of the totality principle).
Vernon DCJ ordered that the sentence of 3 years 6 months' immediate imprisonment be backdated to 4 April 2022.
The overall total effective sentence for counts 2, 3 and 4 was 5 years, 5 months and 5 days' imprisonment.
On 8 April 2022, when Vernon DCJ sentenced the appellant for count 2, the appellant was eligible for release on parole in respect of the total effective sentence imposed by Sweeney DCJ. He became eligible for release on parole on 28 May 2021. However, when Vernon DCJ sentenced the appellant for count 2, he had not been released on parole.
Originally, the appellant relied upon one ground of appeal. On 13 March 2023, after judgment in the appeal was reserved, the appellant applied for leave to rely upon an additional ground. Like Quinlan CJ and Mazza JA, I would grant leave to add the additional ground.
Ground 1 alleges in essence that the sentence of 3 years 6 months' immediate imprisonment imposed by Vernon DCJ for count 2 was manifestly excessive. Ground 2 alleges in essence that the sentencing decision made by Vernon DCJ was erroneous in that it involved a contravention of s 88(4) of the Sentencing Act 1995 (WA).
I agree with Quinlan CJ and Mazza JA that the following orders should be made in the appeal:
(a)the appellant's application in the appeal dated 13 March 2023 to add an additional ground is granted;
(b)leave to appeal on grounds 1 and 2 is granted; and
(c)the appeal is dismissed.
I will, however, state my own reasons for making those orders.
The facts and circumstances of the appellant's offending, the appellant's personal circumstances, the sentencing remarks of Vernon DCJ and Sweeney DCJ and the submissions of the parties
The facts and circumstances of the appellant's offending, the appellant's personal circumstances, the sentencing remarks of Vernon DCJ and Sweeney DCJ and the submissions of the parties are summarised in the reasons of Quinlan CJ and Mazza JA. I will not repeat their Honours' summary, except to the extent necessary to explain my reasons.
The organisation of the balance of my reasons
It is convenient to consider the merits of ground 2 before considering the merits of ground 1.
Ground 2: the appellant's submissions
Counsel for the appellant submitted in effect:
(a)On 28 May 2021, the appellant became eligible for release on parole in respect of the total effective sentence imposed by Sweeney DCJ.
(b)The total effective sentence imposed by Sweeney DCJ ended on 27 June 2022.
(c)On 8 April 2022, Vernon DCJ ordered that the sentence of 3 years 6 months' immediate imprisonment imposed by her Honour be backdated to 4 April 2022.
(d)By backdating the sentence she imposed to a date before the expiration of the total effective sentence imposed by Sweeney DCJ, Vernon DCJ in effect ordered that the fixed term her Honour imposed be served partly concurrently with the fixed term that Sweeney DCJ had imposed, within s 88(3) of the Sentencing Act.
(e)Vernon DCJ was therefore required by s 88(4) of the Sentencing Act to specify the period of the fixed term that Sweeney DCJ had imposed that was to be served before the partly concurrent term Vernon DCJ had imposed was to begin, but so that the specified period did not extend beyond the earliest date on which the appellant could be released (whether on parole or not) in relation to the fixed term Sweeney DCJ had imposed.
(f)Vernon DCJ failed to comply with s 88(4) of the Sentencing Act and, consequently, her Honour's sentencing decision involved a contravention of s 88(4).
Ground 2: the ordinary and natural meaning of the words 'cumulative' and 'concurrent'
The ordinary and natural meaning of the word 'cumulative', in the context of the imposition of sentences of imprisonment but without regard to the Western Australia sentencing legislation, is that a term of imprisonment is to be accumulated with another term or other terms of imprisonment, so that the terms of imprisonment are to be served successively.
The ordinary and natural meaning of the word 'concurrent', in the context of the imposition of sentences of imprisonment but without regard to the Western Australian sentencing legislation, is that no part of a term of imprisonment is to be accumulated with or served successively upon another term or other terms of imprisonment.
Ground 2: relevant provisions of the Sentence Administration Act 2003 (WA)
Section 3 of the Sentence Administration Act 2003 (WA) provides that the Sentence Administration Act is to be read with the Sentencing Act.
By s 4(1) of the Sentence Administration Act, if not defined in the Sentence Administration Act, words and expressions in that Act have the same definitions as in the Sentencing Act and, in particular, in pt 13 of the Sentencing Act.
The word 'cumulative' appears in s 6 of the Sentence Administration Act. The words 'cumulative', 'concurrent' and 'partly concurrent' appear in s 7 of that Act. Those words are not defined in or for the purposes of the Sentence Administration Act.
Section 6 of the Sentence Administration Act is concerned with when a term of imprisonment begins. It provides:
(1)Unless this section provides otherwise or an order is made under section 87(1)(d) or 88(3) of the Sentencing Act 1995, a term, other than indefinite imprisonment, begins on the day it is imposed, or if the prisoner is not then in custody, on the day he or she is arrested under a warrant issued in respect of the sentence.
(2)If a term is cumulative on one or more other terms then that term begins on the earliest date on which the prisoner could be released in relation to the last to be served of those other terms, whether or not the release would otherwise be under ‑
(a)a parole order; or
(b)a recognizance release order, or a parole order, made under the Crimes Act 1914 of the Commonwealth.
Section 7 of the Sentence Administration Act is concerned with the order of service of fixed terms of imprisonment. It provides:
(1)In this section ‑
fixed term includes -
(a)a period of imprisonment ordered under section 58, 59 or 119A of the Sentencing Act 1995; and
(b)a period of imprisonment specified in a warrant of commitment issued under the Fines, Penalties and Infringement Notices Enforcement Act 1994;
non‑parole period, in relation to a parole term, means the period that under section 93(1) of the Sentencing Act 1995 the prisoner has to serve before he or she is eligible to be released on parole.
(2)A prisoner who has to serve 2 or more fixed terms is to serve those terms in this order -
(a)firstly, those that are not parole terms are to be served according to whether they are concurrent, partly concurrent or cumulative with one another;
(b)secondly, subject to sections 94 and 95A of the Sentencing Act 1995 and subsection (3), the non‑parole periods of those that are parole terms are to be served according to whether those parole terms are concurrent, partly concurrent or cumulative with one another;
(c)thirdly, subject to sections 94 and 95A of the Sentencing Act 1995 and subsection (3), unless and until released on parole, the balance of any parole terms after the end of any non‑parole periods are to be served -
(i)cumulatively if the terms are cumulative;
(ii)concurrently if the terms are concurrent or partly concurrent.
(3)If after the commencement of Part 2 Division 4 of the Sentencing Legislation Amendment and Repeal Act 2003 a prisoner who is serving, or has yet to serve, a parole term imposed before the commencement of that Division is sentenced to serve another parole term, then -
(a)the non‑parole periods of the terms are to be served according to whether the parole terms are concurrent, partly concurrent or cumulative with one another; and
(b)the balance of the parole terms after the end of any non‑parole periods are to be served concurrently irrespective of whether the parole terms are concurrent, partly concurrent or cumulative with one another.
(4)If while serving a fixed term a prisoner is sentenced to serve another fixed term, other than a fixed term ordered to be served partly concurrently with another term, service of the former is suspended if necessary so that the terms can then be served in the order required by subsection (2).
Ground 2: relevant provisions of the Sentencing Act
The words 'cumulative', 'concurrent' and 'partly concurrent' (and cognate forms of those words) appear in numerous provisions of the Sentencing Act. Part 13 of that Act is headed 'Imprisonment' and comprises s 85 to s 97A. The words 'cumulative', 'concurrent' and 'partly concurrent' (and cognate forms of those words) appear in s 85(2), s 88 and s 94. Those words are not defined in or for the purposes of the Sentencing Act.
Section 85(1) of the Sentencing Act provides, relevantly, that in pt 13:
(a)'fixed term' means 'a term that is not life imprisonment';
(b)'parole term' means, relevantly, 'a term to which a parole eligibility order applies'; and
(c)'term' means 'a term of imprisonment imposed on an offender by a court as a sentence, whether a fixed term or life imprisonment', but does not include detention under a sentence imposed under s 279(5)(b) of the Code or indefinite imprisonment.
Section 85(2) provides that, for the purposes of pt 11 and pt 13 of the Sentencing Act and for the purposes of the Sentence Administration Act, 'the aggregate of 2 or more fixed terms is the total effective period of imprisonment imposed on the offender having regard to whether the fixed terms are to be served concurrently or partly concurrently or cumulatively'.
Section 85(4) of the Sentencing Act provides that in pt 13 of that Act and in the Sentence Administration Act, 'a fixed term ends when the term as imposed by the court ends, and it does not matter if the prisoner has been released before then'.
Section 87 of the Sentencing Act is concerned with taking into account, when sentencing an offender to imprisonment, time previously spent by the offender in custody. It provides:
(1)If when an offender is being sentenced to imprisonment for an offence -
(a)the offender has previously spent time -
(i)in custody in respect of the offence for which the offender is being sentenced; or
(ii)in custody in respect of another offence, while on bail for the offence for which the offender is being sentenced;
and
(b)the sentencing court decides that that time should be taken into account,
the court may take that time into account ‑
(c)if it imposes a fixed term, by reducing that term by an appropriate period; or
(d)by ordering that the term it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence.
(2)Subsection (1)(a)(i) does not apply if the time in custody has already been taken into account in sentencing for another offence under subsection (1)(a)(ii).
Section 88 of the Sentencing Act is concerned with whether sentences of imprisonment are to be served cumulatively, concurrently or partly concurrently. It provides:
(1)An offender sentenced to a fixed term is to serve that term concurrently with any other fixed term that he or she is serving or has yet to serve, unless the sentencing court makes an order under subsection (3).
(2)An offender sentenced at the one time to one or more fixed terms is to serve those terms concurrently, unless the court makes an order under subsection (3).
(3)If at the time an offender is sentenced to a fixed term -
(a)the offender is serving or has yet to serve another fixed term imposed previously; or
(b)the offender is then also sentenced to serve another fixed term,
the sentencing court may order that -
(c)the fixed term is to be served cumulatively on the other fixed term; or
(d)the fixed term is to be served partly concurrently with the other fixed term.
(4)If under subsection (3)(d) a court orders that a term is to be served partly concurrently with another fixed term, the court must specify the period of the other fixed term that is to be served before the partly concurrent term is to begin, but that period must not extend beyond the earliest date on which the offender could be released (whether on parole or not) in relation to the other fixed term.
(5)An offender sentenced to life imprisonment is to serve that sentence concurrently with any other term that he or she is serving or has yet to serve.
Section 93 of the Sentencing Act is concerned with the release of an offender who is serving a parole term. It provides:
(1)Subject to sections 94A, 94 and 95A, a prisoner serving a parole term is eligible to be released on parole -
(a)if the term served is 4 years or less ‑ when he or she has served one‑half of the term; or
(b)if the term served is more than 4 years ‑ when he or she has served 2 years less than the term.
(2)Any order for the release on parole of a prisoner to whom subsection (1) applies must be made in accordance with Part 3 of the Sentence Administration Act 2003.
(3)If a prisoner serving a parole term has not been released on parole before the term ends, the prisoner is discharged from that sentence when the term ends and, subject to Part 2 Division 2 of the Sentence Administration Act 2003, must be released then.
It is unnecessary to set out s 94A or s 95A of the Sentencing Act.
Section 94 of the Sentencing Act is concerned with the aggregation of 'parole terms' (as defined in s 85(1)) where an offender is serving two or more parole terms. It provides:
(1)In the case of a prisoner serving 2 or more parole terms -
(a)the time when he or she is eligible to be released on parole; and
(b)the parole period for such a prisoner,
are to be calculated by reference to the aggregate of those terms, but only if under subsection (3) or (4) those terms are to be aggregated.
(2)If under this section the matters referred to in subsection (1) are not to be calculated by reference to the aggregate of 2 or more parole terms, the matters are to be calculated in respect of each of the 2 or more parole terms separately.
(3)A parole term imposed at the same time as another parole term is to be aggregated with that other term for the purposes of subsection (1) unless it is to be served partly concurrently with that other term.
(4)A parole term imposed at a different time to another parole term is to be aggregated with that other term for the purposes of subsection (1) unless -
(a)it is to be served concurrently with that other term or partly concurrently with it; or
(b)the other term was imposed before the commencement of Part 2 Division 4 of the Sentencing Legislation Amendment and Repeal Act 2003.
(5)Subject to this section, a parole term, or an aggregate of parole terms, may be aggregated with the aggregate of 2 or more other parole terms, but a parole term, or an aggregate of parole terms, imposed before the commencement of Part 2 Division 4 of the Sentencing Legislation Amendment and Repeal Act 2003 is not to be aggregated with a parole term, or aggregate of parole terms, imposed after that commencement.
(6)For the purposes of applying this section a reference in this Part or in the Sentence Administration Act 2003 to a prisoner serving a parole term is, where necessary, to be taken as including a reference to a prisoner serving more than one parole term and in such a case, if under this section the terms can be aggregated, the reference to the term is to be taken as being a reference to the aggregate of the terms.
Table showing some examples of the operation of this section and sections 88 and 93, and section 7 of the Sentence Administration Act 2003
Parole term 1
Parole term 2
Whether concurrent etc.
Effect
4 years
6 years
Concurrent
Aggregation of terms permitted for parole calculations.
Aggregate = 6 years.
Non‑parole period = 4 years.
(Calculated on aggregate).
If not paroled, serve 6 years.
4 years
6 years
Cumulative
Aggregation of terms permitted for parole calculations.
Aggregate = 10 years.
Non‑parole period = 8 years.
(Calculated on aggregate).
If not paroled, serve 10 years.
4 years
6 years
Partly concurrent:
1 year of term 1 to be served before term 2 begins.
(See s. 88(4))
Aggregation of terms not permitted for parole calculations.
Serve 1 year of term 1.
Then begin serving term 2 concurrently with rest of term 1.
Non‑parole period on term 2 = 4 years.
Result: serve 5 years before eligible for parole.
If not paroled, serve 7 years.
Ground 2: its merits
Each of Sweeney DCJ and Vernon DCJ imposed a 'fixed term' as defined in s 85(1) of the Sentencing Act. Each of those fixed terms was a 'parole term' as defined in s 85(1) because a parole eligibility order was made in respect of each fixed term.
The Sentence Administration Act must be read with the Sentencing Act. See s 3 of the Sentence Administration Act. Words and expressions in the Sentence Administration Act which are not defined in that Act have the same definitions as in the Sentencing Act including, in particular, in pt 13 of the Sentencing Act. See s 4(1) of the Sentence Administration Act.
The words or expressions 'fixed term', 'parole term' and 'term' (which are defined in s 85(1) of the Sentencing Act) are not defined in the Sentence Administration Act.
Section 6(1) of the Sentence Administration Act provides that, unless s 6 provides otherwise or an order is made under s 87(1)(d) or s 88(3) of the Sentencing Act, 'a term, other than indefinite imprisonment, begins on the date it is imposed, or if the prisoner is not then in custody, on the day he or she is arrested under a warrant issued in respect of the sentence'.
Section 7(2) of the Sentence Administration Act provides for the order in which a prisoner who is sentenced to serve two or more fixed terms of imprisonment is to serve those terms. The subsection stipulates an order of priority as between terms 'that are not parole terms' (which are to be served first), 'non‑parole periods' of terms that are parole terms (which are to be served second) and 'the balance of any parole terms after the end of any non‑parole periods' (which are to be served third).
Section 7(2) also stipulates an order of priority as between:
(a)terms that are not parole terms themselves (which are to be served according to whether they are concurrent, partly concurrent or cumulative with one another): s 7(2)(a);
(b)subject to s 94 and s 95A of the Sentencing Act and s 7(3) of the Sentence Administration Act, non‑parole periods of terms that are parole terms themselves (which are to be served according to whether they are concurrent, partly concurrent or cumulative with one another): s 7(2)(b); and
(c)subject to s 94 and s 95A of the Sentencing Act and s 7(3) of the Sentence Administration Act, the balance of any parole terms after the end of any non‑parole periods (which are to be served cumulatively if the terms are cumulative or concurrently if the terms are concurrent or partly concurrent): s 7(2)(c).
Section 94 of the Sentencing Act is concerned with the aggregation of parole terms for certain purposes.
Section 95A of the Sentencing Act is concerned with eligibility for parole where certain mandatory minimum sentences are imposed.
Section 7(3) of the Sentence Administration Act is concerned with, relevantly, a prisoner who is serving, or has yet to serve, a parole term imposed before the commencement of pt 2 div 4 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), which commenced on 31 August 2003.
The provisions of s 7(2) apply where a prisoner has to serve two or more fixed terms.
By s 7(4), the provisions of s 7(2) apply if, while serving a fixed term, a prisoner is sentenced to serve another fixed term, other than a fixed term ordered to be served partly concurrently with another term. In those circumstances, service of the former fixed term (that is, the fixed term which the prisoner is serving when he or she is sentenced to serve another fixed term) is suspended 'if necessary' so that the terms can then be served in the order required by s 7(2). Section 7(4) does not apply where the new fixed term is ordered to be served partly concurrently with another term.
Section 7 of the Sentence Administration Act 2003 (WA) is relevantly identical to s 8 of the preceding statute, namely the Sentence Administration Act 1995 (WA).
In Hayden v The Queen,[29] McKechnie J (Anderson and Steytler JJ agreeing) considered the scope and purpose of s 8 of the Sentence Administration Act 1995 (now s 7 of the Sentence Administration Act 2003) and s 88 of the Sentencing Act as then enacted (and in the context of the statutory parole framework which applied at that time). His Honour said [31] ‑ [32]:
I return to s 8 of the Sentence Administration Act [1995]. The apparent difficulty in construing the section arises by the use of the expression 'order of service of sentences'. Properly understood, this is a different concept from a court order that sentences be served cumulatively or partly cumulatively or, by order or operation of the Sentencing Act, concurrently. So much is reflected in the terms of s 8 which provide for an order of service according to whether terms are concurrent or cumulative and reflects the general discretion in respect of fixed terms given to a Judge under the Sentencing Act s 88.
Section 8 of the Sentence Administration Act [1995] is an administrative provision not intended to interfere with the judicial discretion to order cumulative sentences. The fact that sentences are served in a particular order does not in truth refer to their concurrency or cumulation at all. It is merely to determine the order of service for the purposes of release.
See also Penny v The State of Western Australia.[30]
[29] Hayden v The Queen [2003] WASCA 210.
[30][30] Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48 [10] (McLure JA).
In Hayden, McKechnie J referred to sentences ordered to be served 'partly cumulatively'. The term 'partly cumulatively' and cognate forms of that term were used in the Sentencing Act as originally enacted.
Later, the Sentencing Act was amended to replace the words 'partly cumulatively' (and cognate forms of those words) with 'partly concurrently' (and cognate forms of those words). See the Sentencing Legislation Amendment and Repeal Act 2003. See also the Sentencing Legislation Amendment and Repeal Act 1999 (WA). The explanatory notes to the Bill which upon enactment became the Sentencing Legislation Amendment and Repeal Act 2003 gave this explanation for the amendments made by that Act to s 88(3) and s 88(4) (p 8):
The amendment to subsections (3) and (4) arise as a result of a 1996 case of Peter Alexander Mitchell v R. The intent behind partly cumulative terms is to provide a mechanism for courts to impose an appropriate sentence but not [affect] 'totality'. The partial aggregation arising from 'Mitchell' was not intended. The use of part concurrency conveys a clearer intention of the desired outcome.
It appears that the Mitchell case referred to in the explanatory notes is Murray J's sentencing of Peter Alexander Mitchell on 2 May 1997. See Chief Executive Officer of the Department of Corrective Services v Jackson.[31]
[31] Chief Executive Officer of the Department of Corrective Services v Jackson [2009] WASCA 51 [28] (McLure JA; Buss & Miller JJA agreeing).
In Narkle v Hamilton,[32] Steytler P, McLure JA and I made these observations about the proper construction of s 87 of the Sentencing Act:
(a)Section 87 is not the source of the court's power (which it has long had) to take into account time spent in custody on remand when sentencing an offender [30].
(b)Section 87 sets out the mechanism by which a sentence can be reduced or backdated where the court, in exercise of its general non‑statutory discretionary power, has decided (as contemplated by s 87(1)(b)) to take into account time spent in custody on remand [30].
(c)Before s 87 was enacted, it was not open to the court to backdate a sentence to take into account time served in custody on remand. Consequently, s 87 was facilitative. Section 87 does not limit the court's general non‑statutory discretionary power to take into account time spent in custody on remand, when appropriate [31].
[32] Narkle v Hamilton [2008] WASCA 31.
The court may backdate a sentence, pursuant to s 87(1)(d), if the conditions specified in pars (a) and (b) of s 87(1) are satisfied. If those conditions are satisfied the court may take into account time which the offender has previously spent in custody either in respect of the offence for which the offender is being sentenced or in respect of another offence, while on bail for the offence for which the offender is being sentenced.
If the court decides to backdate a sentence, pursuant to s 87(1)(d), the court gives effect to that decision 'by ordering that the term [of imprisonment] it imposes is to be taken to have begun on a specified day being the day when that custody began or on some later date that is not later than the date of the sentence'.
So, the effect of s 87(1), read with s 6(1) of the Sentence Administration Act, is that where an offender is sentenced to a fixed term, the term begins on the day it is imposed (or, if the offender is not then in custody, on the day he or she is arrested under a warrant issued in respect of the sentence), unless the court backdates the sentence by making an order under s 87(1)(d) that the term is to be taken to have begun on a specified day, being the day when the custody referred to in s 87(1)(a) began or on some later date that is not later than the date of the sentence.
Section 88 of the Sentencing Act is concerned with the imposition of terms of imprisonment to be served 'cumulatively', 'concurrently' or 'partly concurrently'. As I have mentioned, those words (and cognate forms of those words) are not defined in or for the purposes of the Sentencing Act. It is apparent that, subject to the particular statutory context in which they appear, the words 'cumulative', 'concurrent' and 'partly concurrent' (and cognate forms of those words) in s 88 and other provisions of pt 13 of the Sentencing Act bear their ordinary and natural meaning.
That is, subject to the particular statutory context:
(a)a term of imprisonment will be served 'cumulatively' if that term is accumulated with another term or other terms of imprisonment, so that the terms of imprisonment are to be served successively;
(b)a term of imprisonment will be served 'concurrently' if no part of that term is to be accumulated with or served successively upon another term or other terms of imprisonment; and
(c)a term of imprisonment will be served 'partly concurrently' if part of that term is to be served at the same time as another term or other terms of imprisonment and part of that term is to be accumulated with or served successively upon another term or other terms of imprisonment.
Section 88(1) provides that an offender sentenced to a fixed term is to serve that term 'concurrently with any other fixed term that he or she is serving or has yet to serve', unless the sentencing court makes an order under s 88(3). Similarly, s 88(2) provides that an offender sentenced at the one time to one or more fixed terms is to serve those terms 'concurrently', unless the court makes an order under s 88(3). The reference in s 88(1) and s 88(2) to an order under s 88(3) is to an order under s 88(3)(c) that 'the fixed term is to be served cumulatively on the other fixed term' or an order under s 88(3)(d) that 'the fixed term is to be served partly concurrently with the other fixed term'.
Section 88(4) provides that if under s 88(3)(d) 'a court orders that a term is to be served partly concurrently with another fixed term, the court must specify the period of the other fixed term that is to be served before the partly concurrent term is to begin, but that period must not extend beyond the earliest date on which the offender could be released (whether on parole or not) in relation to the other fixed term'.
Section 88(4) embodies three components. First, s 88(4) applies if under s 88(3)(d) a court orders that a term is to be served partly concurrently with another fixed term. Secondly, if s 88(4) applies, the court must specify the period of the other fixed term that is to be served before the partly concurrent term is to begin. Thirdly, if s 88(4) applies, the period of the other fixed term that is to be served before the partly concurrent term is to begin must not extend beyond the earliest date on which the offender could be released (whether on parole or not) in relation to the other fixed term.
The effect of the third component of s 88(4) is that the beginning of a new fixed term, which is to be served partly concurrently with another fixed term which the offender is serving or has yet to serve, must not be postponed beyond the earliest date of release under the sentence with which the new fixed term is to be partly concurrent. The evident purpose of this requirement in s 88(4) is to ensure that the offender will not be released from custody and returned to the community (whether on parole or not) in relation to the other fixed term before the new fixed term begins because that result would not be consistent with the proper administration of criminal justice; for example, it would be unfair to the offender for him or her to be released into the community and then returned to custody despite the absence of any new or other offending and that course would potentially undermine the efforts that had been made within the corrections system to facilitate the offender's rehabilitation.
In my opinion, whether a fixed term imposed by a court is to be served partly concurrently with another fixed term that the offender is serving or has yet to serve is to be determined by reference to:
(a)the legal effect of the orders that are made in relation to the new fixed term; and
(b)the legal effect of the orders that have been made in relation to the other fixed term that the offender is serving or has yet to serve,
and not merely by reference to whether the court that is imposing the new fixed term expressly and in terms makes an order that the new fixed term is to be served partly concurrently with the other fixed term.
In my opinion, having regard to the ordinary and natural meaning of the words 'cumulatively', 'concurrently' and 'partly concurrently', to the relevant statutory context and to the evident purpose of s 88(4), the distinction in s 88 between a term of imprisonment that is to be served 'concurrently' and a term of imprisonment that is to be served 'partly concurrently' is, relevantly, as follows:
(a)Where an offender is sentenced to a fixed term, that term will be served 'concurrently' with any other fixed term that the offender 'is serving or has yet to serve' if the new fixed term and the other fixed term that the offender 'is serving or has yet to serve' begin or are taken to have begun on the same date. In those circumstances, no part of the new fixed term will have been accumulated with or be served successively upon the other fixed term that the offender 'is serving or has yet to serve'. The new fixed term will not have been accumulated with and will not be served successively upon the other fixed term that the offender 'is serving or has yet to serve' merely because the new fixed term is longer than the other fixed term and consequently the new fixed term will expire after the other fixed term expires.
(b)Where an offender is sentenced to a fixed term, that term will be served 'partly concurrently' with any other fixed term that the offender 'is serving or has yet to serve' if the new fixed term and the other fixed term that the offender 'is serving or has yet to serve' begin or are taken to have begun on different dates and the length of the new fixed term overlaps the beginning or the end of the other fixed term or both. In those circumstances, part of the new fixed term will be served at the same time as the other fixed term that the offender 'is serving or has yet to serve' and part of the new fixed term will have been accumulated with or will be served successively upon the other fixed term that the offender 'is serving or has yet to serve'.
Where an offender is sentenced at the one time to one or more fixed terms, as contemplated by s 88(2), and both or all of those fixed terms are to begin on the same date, and there is a difference in the length of one or more of those fixed terms, the terms will be served concurrently with each other, notwithstanding that the terms will expire on different dates.
Where s 88(4) applies, the court must comply with the second component of s 88(4) when the court sentences the offender to the new fixed term. The second component of s 88(4) (in particular, the requirement embodied in the phrase 'the court must specify the period of the other fixed term that is to be served before the partly concurrent term is to begin') will be complied with if the court states the date on which the new fixed term is to begin. If that is done it will be apparent from the statement, together with the orders that have been made in relation to the new fixed term (which, it is to be expected, will include an order as to the date on which the new fixed term is to begin) and the orders that have been made in relation to the other fixed term that the offender is serving or has yet to serve, what period of the other fixed term must be served before the new fixed term is to begin.
Significantly, the third component of s 88(4) has a prospective focus as to the offender's release in relation to the other fixed term. The prospective focus is apparent from the phrase 'the earliest date on which the offender could be released (whether on parole or not) in relation to the other fixed term' (emphasis added). Where s 88(4) applies, the court must comply with the third component of s 88(4) when the court sentences the offender to the new fixed term. The text of the third component of s 88(4) (in particular, the phrase to which I have referred) conveys that the requirement in the third component (namely, that the beginning of the new fixed term, which is to be served partly concurrently with another fixed term which the offender is serving or has yet to serve, must not be postponed beyond the earliest date of release under the sentence with which the new fixed term is to be partly concurrent) does not apply if there is no possibility (having regard to the orders made in relation to the new fixed term and the other fixed term) that the offender could be released (whether on parole or not) in relation to the other fixed term before the new fixed term begins.
In Chief Executive Officer of the Department of Corrective Services v Jackson, McLure JA (with whom Miller JA and I agreed) considered the proper construction and application of s 94 of the Sentencing Act. Her Honour said [31] ‑ [34]:
A term to which a parole eligibility order applies (a parole term) imposed at the same time as another parole term is not to be aggregated with that other term if it is to be served partly concurrently with that other term: s 94(3). If a term is to be served partly concurrently with another term, the time when the prisoner is eligible to be released on parole is to be calculated in respect of each of the two or more parole terms separately: s 94(2). The general provision in s 89(5) in relation to a single parole order is not inconsistent with s 94(2). Even if it were, the general provision must give way to the specific direction in s 94(2) to calculate the earliest release date for each parole term separately.
The intended operation of s 93 and s 94 is shown in the examples in the table in s 94(6). The final example in that table shows the methodology to be applied when sentences are to be served partly concurrently. It demonstrates that the partial aggregation of terms approach adopted by McKechnie J is wrong. … In the final example, 1 year of term 1 (a sentence of 4 years) is to be served before term 2 (a sentence of 6 years) begins. The non‑parole period for term 1, separately calculated, is 2 years. However, only the time served for count 1 alone (1 year) is added to the non‑parole period for term 2 (4 years) resulting in a minimum period in custody before becoming eligible for parole of 5 years. I will refer to the time served on term 1 before the commencement of term 2 (which cannot be longer than the non‑parole period for term 1) as the 'serve alone period'. The serve alone period for term 1 is to be aggregated with the non‑parole period for term 2.
It is the case that in the final example in the table in s 94(6), the earliest release date for the sentences as a whole is the same whether the two terms are partially aggregated (1 + 6 - 2 = 5) or the serve alone period and the non‑parole period for term 2 (1 + 4 = 5) are aggregated. However, that is a consequence of adopting a different criterion for calculating parole periods after 4 years. The rationale for adopting a different criterion may be difficult to fathom, however it cannot be said that the consequences of the difference are anomalous. This is not a case where two constructions are otherwise open on the language of the statute. Moreover, the clear language of s 94 is consistent with and promotes the legislative intent revealed in the extrinsic material.
In summary, the partial aggregation of terms approach adopted by McKechnie J is not in accordance with the Sentencing Act. The minimum period an offender sentenced to partially concurrent sentences will serve in custody is to be determined by aggregating (i) the time to be served for the nominated count (term 1) before the commencement of the sentence(s) to be served concurrently (term 2) and (ii) the non‑parole period, separately calculated, for term 2.
In the present case, Vernon DCJ imposed on the appellant a partly concurrent sentence in that:
(a)the sentence of 3 years 6 months' immediate imprisonment imposed by her Honour on 8 April 2022 was backdated to 4 April 2022;
(b)as at 4 April 2022, the appellant was serving the fixed term of 2 years 2 months' immediate imprisonment imposed by Sweeney DCJ on 11 June 2021 and backdated to 28 April 2020;
(c)the sentence of 3 years 6 months' immediate imprisonment imposed by Vernon DCJ would not expire until 4 October 2025; and
(d)the sentence imposed Sweeney DCJ would expire on 28 June 2022.
Part of the new fixed term imposed by Vernon DCJ was to be served at the same time as the other fixed term imposed by Sweeney DCJ that the appellant was serving and part of the new fixed term was accumulated with and required to be served successively upon the other fixed term.
Vernon DCJ complied with the second component of s 88(4) in that her Honour stated the date on which the new fixed term was to begin. It was apparent from the statement, together with the orders that Vernon DCJ made in relation to the fixed term (which included an order to the effect that the 'start date' was 4 April 2022: see the certificate of final outcome of charge) and the orders that Sweeney DCJ had made in relation to the other fixed term that the appellant was serving, what period of the other fixed term (namely the period between 28 April 2020 and 4 April 2022) had to be served before the new fixed term began.
The sentencing decision made by Vernon DCJ did not involve a contravention of s 88(4). As I have mentioned, the requirement in the third component of s 88(4) (namely, that the beginning of the new fixed term, which is to be served partly concurrently with another fixed term which the offender is serving or has yet to serve, must not be postponed beyond the earliest date of release under the sentence with which the new fixed term is to be partly concurrent) does not apply if there is no possibility (having regard to the orders made in relation to the new fixed term and the other fixed term) that the offender could be released (whether on parole or not) in relation to the other fixed term before the new fixed term begins. On 8 April 2022, when Vernon DCJ sentenced the appellant to the new fixed term of 3 years 6 months' immediate imprisonment, the appellant had not been released (whether on parole or not) in relation to the other fixed term imposed by Sweeney DCJ. Vernon DCJ backdated the sentence she imposed to 4 April 2022. In the circumstances, there was no possibility (having regard to the orders made by Vernon DCJ in relation to the new fixed term and the orders made by Sweeney DCJ in relation to the other fixed term) that the appellant could be released (whether on parole or not) in relation to the other fixed term before the new fixed term was taken to have begun.
Ground 2: conclusion
Ground 2 fails.
Ground 1: its merits
A ground of appeal which asserts that a sentence is manifestly excessive asserts the existence of an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender's personal circumstances.
As Gleeson CJ, Gummow, Hayne and Callinan JJ observed in Markarian v The Queen,[33] the maximum penalty for an offence 'provide[s], taken and balanced with all of the other relevant factors, a yardstick'. See also Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym).[34] Attention should be directed to where the facts and circumstances of the particular offence and the particular offender lie on the spectrum that extends from the least serious instances of the offence in question to the worst category, being those offences so grave as to warrant the maximum penalty. See Ibbs v The Queen[35] and R v Kilic.[36]
[33] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [31].
[34] Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428 [10] (Kiefel CJ, Bell & Keane JJ).
[35] Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447, 452 (Mason CJ, Wilson, Brennan, Toohey & Gaudron JJ).
[36] R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [19] (Bell, Gageler, Keane, Nettle & Gordon JJ).
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offending is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When an intermediate appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge‑made law. See Barbaro v The Queen.[37]
[37] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [25] (French CJ, Hayne, Kiefel & Bell JJ).
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner.
A sentencing judge is obliged to sentence an offender in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act. Part 2 div 1 comprises s 6 to s 9AA.
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. 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.
A complaint that a sentencing judge made a weighting error, in the course of making a discretionary judgment as to the appropriate sentence, can only be established if there was a failure to exercise the discretion conferred on the judge. As Quinlan CJ, Mazza JA and I observed in Gelmi v The State of Western Australia:[38]
An alleged failure by a judge who has exercised a discretion to give any or sufficient weight, or a complaint that a judge who has exercised a discretion gave excessive weight, to a relevant consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet [[1984] HCA 21; (1984) 156 CLR 605, 614 (Gibbs CJ)]; Dinsdale v The Queen [[2000] HCA 54; (2000) 202 CLR 321 [26] (Gaudron & Gummow JJ)]; Vagh v The State of Western Australia [[2007] WASCA 17 [76] (McLure JA)]; Pedersen v The State of Western Australia [[2010] WASCA 175 [37] (Buss JA; McLure P & Mazza J agreeing)]. A complaint about the attribution of weight to a relevant consideration therefore does not ordinarily give rise to an express error that enlivens an appellate court's jurisdiction to intervene in an appeal against a judge's discretionary decision or judgment. In the absence of a failure to exercise the discretion conferred on the judge, a weighting error is, ordinarily, merely a conclusion that is implicit in, and flows from, a finding by an appellate court that the outcome or result of the judge's exercise of the discretion is unreasonable or plainly unjust. Ordinarily, a weighting error is not, of itself, an independent ground which justifies appellate intervention.
[38] Gelmi v The State of Western Australia [2019] WASCA 139; (2019) 89 MVR 443 [81].
I have had regard to numerous prior sentencing decisions of this court in relation to offending involving the possession of a trafficable quantity of methylamphetamine with intent to sell or supply to another. In addition to the cases referred to in the reasons of Quinlan CJ and Mazza JA, I have had regard to FZA v The State of Western Australia[39] and Le v The State of Western Australia.[40] It is unnecessary to reproduce the facts and circumstances or the sentences imposed in the previous cases. There are some comparable features between some of those cases, on the one hand, and the present case, on the other, but there are also distinguishing features.
[39] FZA v The State of Western Australia [2022] WASCA 124.
[40] Le v The State of Western Australia [2022] WASCA 163.
In the present case, the appellant's assertion that the sentence imposed by Vernon DCJ was manifestly excessive must be evaluated by reference to the sentence her Honour actually imposed, namely 3 years 6 months' immediate imprisonment, and not by reference to the sentence of 4 years 8 months' imprisonment indicated by her Honour before her Honour reduced the indicated sentence on account of totality.
The appellant's offending on count 2 was, as counsel for the appellant acknowledged, very serious. He was involved in the ongoing commercial sale of methylamphetamine. The appellant was in possession of the methylamphetamine the subject of count 2 for the purpose of delivering it on behalf of a drug dealer to a purchaser. The appellant's role was to deliver the methylamphetamine to the purchaser, collect the purchase price of $12,000 cash and return the cash to the dealer. In the event, the purchaser did not attend the place where the sale and purchase of the drug was to be carried out. When the appellant was apprehended by police he was in possession of a number of written notes on which names and numbers, consistent with a tick list, were written. Police located more tick lists and also digital scales when they searched the appellant's home. In addition to committing the offence the subject of count 2, the appellant had sold and supplied small quantities of methylamphetamine for the purpose of funding his personal drug use.
The appellant was not youthful or inexperienced for sentencing purposes. He had a prior criminal record for offences apart from those for which he was sentenced by Vernon DCJ and Sweeney DCJ. Those offences included multiple offences for simple possession of prohibited drugs, possession of stolen or unlawfully obtained property and traffic offences, none of which were punished by sentences of imprisonment. Although the appellant's prior criminal record and the failure of previous sentences to achieve the purpose for which they were imposed did not aggravate the appellant's offending on count 2, his prior criminal record and his history of low level drug dealing on his own account demonstrated that he was not a person who was otherwise of good character.
There were some mitigating factors. The appellant pleaded guilty. Vernon DCJ reduced, pursuant to s 9AA of the Sentencing Act, the head sentence she would otherwise have imposed by 10%. The appellant had the mitigation referred to in the confidential schedule to the reasons of Quinlan CJ and Mazza JA. I agree with their Honours that Vernon DCJ should have prepared a confidential addendum to her sentencing remarks addressing the matters referred to in the confidential schedule. Vernon DCJ made a finding that the appellant was genuinely remorseful for his offending. Her Honour accepted that the appellant had made a genuine attempt to rehabilitate himself from his drug addiction by engaging in private counselling through the Whitehaven Clinic. Her Honour also accepted that the appellant was more vulnerable to becoming addicted to methylamphetamine because of past physical traumas that had left him with chronic pain.
I am satisfied, after evaluating the sentence for count 2 in the context of:
(a)the maximum penalty;
(b)the facts and circumstances of the offending;
(c)the standards of sentencing customarily observed;
(d)the place which the appellant's offending occupies on the scale of seriousness of offending of this kind;
(e)the importance of personal and general deterrence as sentencing factors;
(f)the appellant's personal circumstances and antecedents; and
(g)all mitigating factors,
that the sentence of 3 years 6 months' immediate imprisonment was within the range of sentences open to her Honour on a proper exercise of the sentencing discretion.
The sentence of 3 years 6 months' immediate imprisonment was not unreasonable or plainly unjust. The existence of error cannot be inferred from the sentencing outcome.
Ground 1: conclusion
Ground 1 fails.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
KT
Associate to the Honourable Chief Justice Peter Quinlan
14 JULY 2023
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