Jackson v The State of Western Australia
[2008] WASCA 95
•16 APRIL 2008
JACKSON -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 95
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 95 | |
| THE COURT OF APPEAL (WA) | 30/04/2008 | ||
| Case No: | CACR:110/2007 | 16 APRIL 2008 | |
| Coram: | STEYTLER P McLURE JA MILLER JA | 16/04/08 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DAVID JAMES JACKSON THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentence Drug offences 6 1/2 years' imprisonment 21 months' imprisonment for sale of 3.44 g of methylamphetamine Sentence imposed following breach of community based order imposed earlier for same offence Whether sentence manifestly excessive |
Legislation: | Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(c) |
Case References: | Bellissimo v The Queen (1996) 84 A Crim R 465 Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Moody v French [2008] WASCA 67 Wroblewski v The Queen (1999) 105 A Crim R 129 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : JACKSON -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 95 CORAM : STEYTLER P
- McLURE JA
MILLER JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : KEEN DCJ
File No : IND 655 of 2007
Catchwords:
Criminal law - Sentence - Drug offences - 6 1/2 years' imprisonment - 21 months' imprisonment for sale of 3.44 g of methylamphetamine - Sentence
(Page 2)
imposed following breach of community based order imposed earlier for same offence - Whether sentence manifestly excessive
Legislation:
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(1)(c)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Mr J Mactaggart
Solicitors:
Appellant : Thames Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bellissimo v The Queen (1996) 84 A Crim R 465
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
Moody v French [2008] WASCA 67
Wroblewski v The Queen (1999) 105 A Crim R 129
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1 STEYTLER P: I have had the advantage of reading the reasons of Miller JA. I agree with them. They reflect my own reasons for joining in the decision of the court to dismiss the appeal.
2 McLURE JA: I agree with Miller JA.
3 MILLER JA: At the hearing of this appeal the court unanimously dismissed the appeal and undertook to provide reasons at a later date. These are my reasons for joining in the decision of the court to dismiss the appeal.
4 The appellant pleaded guilty in the District Court at Perth on 10 August 2007 to 31 counts of offering to sell or supply a prohibited drug, namely methylamphetamine, to another (Misuse of Drugs Act 1981 (WA), s 6(1)(c)), and one count of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another (Misuse of Drugs Act, s 6(1)(a)). The indictment contained a total of 35 counts, but the prosecution accepted the appellant's pleas of guilty in full satisfaction of the indictment.
5 By reason of the appellant's pleas of guilty to the 32 counts, he was in breach of a 9-month community based order which had been imposed in the Magistrates Court at Armadale on 29 June 2006. This community based order was imposed in relation to three charges of selling a prohibited drug, namely methylamphetamine, to another (Misuse of Drugs Act, s 6(1)(c)), and to those charges the appellant pleaded guilty in the Magistrates Court.
6 The appellant was sentenced in the District Court at Perth to an aggregate term of imprisonment of 6 years 6 months. Included in that sentence was a term of 21 months, imposed in respect of one of the offences of selling methylamphetamine, which was the subject of the community based order imposed on 29 June 2006 in the Magistrates Court at Armadale.
Leave to appeal
7 The appellant was granted leave to appeal against the sentence of 21 months' imprisonment, imposed for the offence of sale of methylamphetamine on 12 April 2006. The ground was the subject of an amendment which was allowed at the hearing of the appeal. It now reads:
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- The learned sentencing judge erred in that the sentence of 21 months imprisonment imposed for one of the offences he dealt with following a breach of a community based order was manifestly excessive given;
Particulars
a) antecedents at the time the original offence was committed.
b) the plea of guilty to the original offence.
Sentencing comments
8 The sentencing judge was called upon to resentence the appellant for the breach of the community based order imposed in the Magistrates Court at Armadale on 29 June 2006. By s 130 of the Sentencing Act 1995 (WA), he was empowered to sentence the appellant in any manner open to the court if it had just convicted the person of that offence. As Anderson J pointed out in Wroblewski v The Queen (1999) 105 A Crim R 129:
The starting point is s 130(1)(a)(iii) which provides that the court may 'sentence the person for the offence for which the … community order was imposed in any manner the court could if it had just convicted the person of that offence'. Her Honour was to resentence as if she had just convicted the applicant. This seems to me to be a warrant to have regard for the offender's antecedents right down to the time at which resentencing occurs. Her Honour had to decide on a penalty proportionate to the gravity of the crime, having regard to all the circumstances of the case after taking into account all matters that might fairly go in mitigation, including those referable to the offender personally. (134)
9 In dealing with the breach of community based order, the sentencing judge said:
It is also necessary for me to deal with the breach of community based orders. In respect of the three offences of selling amphetamines, firstly the offence on 30 March 2006 involving 0.38 of a gram and the offence on 6 April of selling 0.16 of a gram, I consider that these should be treated in the same way as the majority of the counts in the present offence of offering to sell or supply, that is to say attracting a sentence of 18 months on each. In respect of the sale on 12 April 2006, which was a sale of 3.44 grams, this is a substantial quantity and in my view would attract a term of 36 months.
…
Each of the sentences to which I have referred should be reduced by 10 per cent to take account of your early plea.
…
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- In making this reduction of 10 per cent I necessarily in some cases either round up or round down parts of the sentence to take account of parts of another. In addition to this there will be the statutory reduction of one-third under the sentencing legislation that is required.
10 The sentencing judge saw the sale of methylamphetamine on 12 April 2006 as the most serious of the offences for which the community based order had been imposed. It involved the sale of 3.44 g. This was described by the sentencing judge as a 'substantial quantity'.
11 The sentencing judge referred in his sentencing comments to matters personal to the appellant, but correctly pointed out that such personal circumstances carried less weight than might normally be the case because drug offences usually call for general and personal deterrence: Bellissimo v The Queen (1996) 84 A Crim R 465, 469. Nevertheless, his Honour noted that the appellant was 46 years of age and had three children, two of whom were over the age of 16 years, but one very young. He had a habit of drug use which had escalated in consequence of certain personal circumstances in his life, but there appeared to be signs that the appellant was taking steps to curb his drug use.
Ground of appeal
12 The ground of appeal contends that the sentence of 21 months' imprisonment was manifestly excessive given the appellant's antecedents at the time of the original offence and his plea of guilty to that offence.
13 An allowance was made by the sentencing judge for the plea of guilty. It was a small allowance (10%) but the sentencing judge considered that in relation to all offences committed by the appellant he had effectively been 'caught red-handed'. This certainly appears to be the case in relation to the offences the subject of the community based order. The facts in relation to those offences were read by the prosecutor as follows:
The facts of those, firstly there were three counts of selling a prohibited drug, the second, third and fourth matters on that record. The facts there were that during March of 2006 Armadale detectives commenced an operation targeting the selling of illicit drugs by this offender from his home at 19 Dyer Street in Kelmscott - a certain familiarity to the position.
The activities of the offender [were] causing distress to local residence through the excessive vehicle traffic and regular anti-social behaviour from people attending his property to acquire illicit drugs. On 30 March 2006 the offender sold to another person .38 grams of
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- methylamphetamine, with a purity of 11 per cent. On 6 April 2006 he sold to another person .16 grams of methylamphetamine.
…
[On] 12 April 2006, [he] sold 3.44 grams of methylamphetamine for $1200 with a purity of 18 per cent. On 20 April 2006 police executed a search warrant under the provisions of the Misuse of Drugs Act. They found electronic scales, clip-seal bags, [and] some $421 in Australian currency. The offender was arrested.
14 At the time of the imposition of the community based order, the appellant's prior convictions included an offence of possessing a smoking implement (22 April 2005) and an offence of possession of a quantity of cannabis (2 March 1984). Fines of $100 were imposed in relation to each of the offences. There were other offences which included possessing a prohibited weapon; possessing stolen or unlawfully obtained property; unlawful possession of an explosive without a licence; possession of an explosive substance; possession of unlicensed ammunition; stealing (two charges); another (earlier) offence of possessing a smoking implement; disorderly conduct; and other police related, or traffic related matters.
15 In resentencing the appellant, the sentencing judge was required to resentence as if he had just convicted him. As Anderson J pointed out in Wroblewski (134), regard was to be had to the appellant's antecedents 'right down to the time at which resentencing [occurred]'. The fact that the appellant had continued to offend and had pleaded guilty to 32 counts on the indictment which was before the court on 10 August 2007 were relevant factors. They could not increase the applicable sentence but they were matters which clearly went to the question of the extent of any rehabilitation of the appellant since the imposition of the community based order (see Wroblewski (134) (Anderson J)).
16 The appellant's plea of guilty was deserving of a discount, and a discount was given. It was a small discount, but the amount of discount is discretionary and sentencing judges are to be given a wide measure of latitude in relation to the appropriate reduction for a plea of guilty. In Moody v French [2008] WASCA 67 [37] Steytler P, McLure and Buss JJA said:
Ordinarily, in this State, fast-track pleas of guilty attract a reduction in sentence of somewhere between 20% and 35%, depending on the circumstances: H [9] and the cases there cited. In particular cases the reduction might be less (where, for example, there is a late plea and an absence of any real remorse) or more, although a reduction should not be so excessive as to undermine the accusatorial feature of the criminal
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- justice system: R v Shannon (1979) 21 SASR 442, 449 (King CJ); and Cameron [65(3)] (Kirby J). The amount of the reduction is discretionary. Sentencing judges 'must be accorded a wide measure of latitude which will be respected by appellate courts': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 336 (Kirby J); Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]. In Cameron [65(2)] Kirby J said:
'Sentencing is not a mathematical exercise, apt to be reduced to fixed formulas and equations (cf Pearce v The Queen (1998) 194 CLR 610 at 624 [46]; Ryan v The Queen (2001) 206 CLR 267 at 278 [33]). Unless specifically authorised by legislation, no principle or guideline could be adopted that obliged the application of a rigid approach or an unchanging discount for a plea of guilty. In each case, it is necessary for the sentencing judge to take such a plea into account but having regard to all the circumstances.'
18 The sentencing judge was correct to describe the offence of sale of 3.44 g of methylamphetamine on 12 April 2006 as a serious offence. In Bosworth v The State of Western Australia [2007] WASCA 144 [41] I provided an analysis of cases involving intent to sell or supply small quantities of methylamphetamine, being between 3 g and 65 g. Post-transitional sentences were found to range between 2 and 5 years' imprisonment. There are instances of possession with intent to sell or supply methylamphetamine in quantities of around 3 g which have led to sentences of 2 years' imprisonment. Most of the cases analysed involved pleas of guilty.
Conclusion
19 In my opinion, the sentence of 21 months' imprisonment imposed by the sentencing judge for the offence of sale of methylamphetamine on 12 April 2006, was within the range of sentences that could have been imposed. It took sufficient account of the appellant's antecedents at the time of commission of the offence (those antecedents to be seen in the light of events that followed) and it gave credit to the appellant for his plea of guilty.
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20 For these reasons, I consider that the ground of appeal has no substance and should be dismissed.
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