Lawton v The Queen
[2002] WASCA 199
•29 JULY 2002
LAWTON -v- THE QUEEN [2002] WASCA 199
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 199 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:14/2002 | 11 JUNE 2002 | |
| Coram: | MALCOLM CJ STEYTLER J MILLER J | 29/07/02 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | TULL CHRISTIAN LAWTON THE QUEEN |
Catchwords: | Criminal law and procedure Appeal against sentence Possession of methylamphetamine and ecstasy with intent to sell or supply, also possession of cannabis, two prohibited smoking implements and unlicensed ammunition Total sentence of 6 and a half years' imprisonment Whether sentence manifestly excessive Whether any other failure of discretion shown Turns on own facts |
Legislation: | Criminal Code WA, s 689(3) |
Case References: | Cameron v The Queen (2002) 187 ALR 65 Radebe v The Queen [2001] WASCA 254 Ryan v The Queen (2001) 75 ALJR 815 "S" v The Queen [2000] WASCA 34 Legeng v The Queen, unreported; CCA SCt of WA; Library No 950391; 8 April 1995 Lowndes v The Queen (1999) 195 CLR 665 R v Bellissimo (1996) 84 A Crim R 465 R v Darwell (1997) 94 A Crim R 35 Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721; 14 December 1998 Watson v The Queen [2000] WASCA 119 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : LAWTON -v- THE QUEEN [2002] WASCA 199 CORAM : MALCOLM CJ
- STEYTLER J
MILLER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appeal against sentence - Possession of methylamphetamine and ecstasy with intent to sell or supply, also possession of cannabis, two prohibited smoking implements and unlicensed ammunition - Total sentence of 6 and a half years' imprisonment - Whether sentence manifestly excessive - Whether any other failure of discretion shown - Turns on own facts
Legislation:
Criminal Code WA, s 689(3)
(Page 2)
Result:
Application for leave to appeal refused
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr K P Bates
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Cameron v The Queen (2002) 187 ALR 65
Radebe v The Queen [2001] WASCA 254
Ryan v The Queen (2001) 75 ALJR 815
Case(s) also cited:
"S" v The Queen [2000] WASCA 34
Legeng v The Queen, unreported; CCA SCt of WA; Library No 950391; 8 April 1995
Lowndes v The Queen (1999) 195 CLR 665
R v Bellissimo (1996) 84 A Crim R 465
R v Darwell (1997) 94 A Crim R 35
Tsagaris v The Queen, unreported; CCA SCt of WA; Library No 980721; 14 December 1998
Watson v The Queen [2000] WASCA 119
(Page 3)
1 MALCOLM CJ: In my opinion this application for leave to appeal against sentence should be refused. I have reached this conclusion for the reasons to be published by Steytler J with which I am in complete agreement. In my view the sentences imposed, looked at either individually or in their totality, were well within the range of a sound discretionary judgment.
2 STEYTLER J: On 5 June 2001 the applicant was convicted, on his plea of guilty, on a charge of possession of methylamphetamine (146 grams with a purity of between 2 and 75 per cent) with intent to sell or supply it to another. He also pleaded guilty to one count of possession of cannabis (three grams of cannabis and four cannabis cookies), one count of possession of two prohibited smoking implements, one count of possession of unlicensed ammunition and one count of possession of MDMA or "ecstasy" (1.03 grams) with intent to sell or supply it to another. He was sentenced to a term of 6 and a half years' imprisonment for the offence of possession of methylamphetamine with intent to sell or supply it to another, to a term of 6 months' imprisonment for each of the offences of possession of cannabis, possession of prohibited smoking implements and possession of MDMA with intent to sell or supply it to another and to a term of 3 months' imprisonment for the offence of possession of unlicensed ammunition. All terms were ordered to be served concurrently and the applicant was made eligible for parole on all counts. He seeks leave to appeal against those sentences.
3 The sole ground of appeal is that the total sentence imposed upon the applicant was manifestly excessive. Before setting out the various subgrounds relied upon by the applicant in support of this ground, it is convenient to deal with the sentencing Judge's sentencing remarks.
4 The sentencing Judge commenced by mentioning that, at an earlier hearing which took place on 5 June 2001, the applicant's then counsel had made a number of submissions in an attempt to explain the applicant's possession of the drugs and other items which had been found by the police in his motor vehicle. His Honour said that the Crown had taken exception to many of those submissions, with the consequence that a trial of issues was set down for 31 July 2001.
5 Although his Honour did not refer in any detail to the submissions which had been made on the applicant's behalf on 5 June 2001, these had been largely exculpatory of the applicant. They were to the effect that the applicant had moved from Melbourne to Perth with his de facto in November 2000. He stayed with his parents for a while and they advised
(Page 4)
him to purchase a home. They gave him $40,000 in cash to assist with the cost of a deposit. The applicant then decided to return to Melbourne to "tie up loose ends and collect the rest of his belongings". On the Sunday immediately prior to his and his de facto's departure for Melbourne they went to a nightclub in Northbridge. The applicant there consumed too much alcohol and was persuaded to take two "ecstasy" tablets by a man (a stranger) who approached him near the dance floor. This man then fell into conversation with the applicant who told him about the money which his parents had given him. The man asked the applicant if he wanted any more drugs and told the applicant that he could make "good money" selling them. On the spur of the moment the applicant made a "verbal arrangement" in terms of which he "accepted" around $5500 worth of what he said were ecstasy tablets. Shortly after that, the two men arranged to meet in Fremantle, that evening, where the applicant paid to the stranger the sum of $5500 for the ecstasy tablets. The applicant said that there was included with those tablets "a rock of speed" which, he was told, had a purity of about 75 per cent.
6 The applicant's counsel then went on to tell the sentencing Judge that, on the next day, the applicant, by then sober, became very nervous about what he had done. He purchased a bottle of "E Test", being a liquid used to test whether or not tablets contain ecstasy. He tested "a couple" of the tablets and found that they tested negative for ecstasy (testing, carried out on behalf of the Crown, did in fact show that some of the tablets found in the applicant's possession had no drug content in them, although others had). Notwithstanding this, his counsel said, the applicant remained nervous and "panicked about the potential drugs he had bought and the fact that they looked like drugs".
7 The applicant's counsel next said that, as the applicant was moving the parcel of drugs, he noticed a wallet in his car. The vendor of the drugs had been in his car and the applicant consequently believed that the wallet belonged to him. Inside were some documents containing what were described as "numerous identifications for numerous people". The applicant was said to have written down the details "of some of these identifications" and then to have discarded the wallet.
8 Then, his counsel said, despite believing that the drugs were "chalk", the applicant decided to dispose of them in a discreet manner and thought that the best thing to do was to "dispose of them on the Nullarbor on the way back to Melbourne". However, the applicant was apprehended at Eucla and the drugs were found when his vehicle was searched. The police also located the remaining $35,000 in cash in the applicant's bag.
(Page 5)
- A set of electric scales and a bag of small plastic snap-lock bags were also found.
9 Having referred, very briefly, to the fact of these submissions which had been made on 5 June 2001, the sentencing Judge went on to say that, on 31 July 2001, the applicant's counsel had advised him that her instructions had changed in several respects. He was then told that the applicant had, at the time of his arrest, intended to sell, "in bulk", the methylamphetamine found in his possession in order to recoup the cost price of the drugs, although the applicant had, prior to that day, had "mixed intentions" whether or not to sell them. It was acknowledged that this was contrary to the applicant's previous instructions, which were to the effect that, "apart from a fleeting moment", he was never going to sell the drugs but intended to throw them out of the car during his crossing of the Nullarbor Plain.
10 The sentencing Judge then remarked that the Crown's submission had been that the applicant had been a dealer in drugs prior to this trip, that the drugs had been purchased with moneys obtained from other sources than the applicant's mother, and that the applicant had always intended to sell the drugs for profit. His Honour went on to say, in this respect, the following:
"In sentencing you I've relied on several conclusions, among others. Firstly, that at the time of the offence you were either engaged alone or with others in the distribution of drugs and I base this on the documents found with you and their interconnection … [with] the other paraphernalia and the other matters referred to by the Crown prosecutor on 31 July. Secondly, that you had purchased the drugs with a view to the resale thereof at a profit. Apart from the matters I've already mentioned, I refer to your various inconsistent … [accounts] as to the circumstances in which you purchased the drugs and what you intended to do with them.
Thirdly, as to the moneys in your possession; I regard your instructions to your counsel to the effect that you had obtained these from your mother to buy a house … [as] inherently improbable. Finally, your various explanations, lies to the police, inconsistent instructions to your counsel and the evidence generally involved, in my view, a concerted attempt by you to avoid the consequences of your actions. Because of
(Page 6)
- this, your plea of guilty must be given less weight and lead to a lesser reduction in penalty than is usually given."
11 The inconsistent accounts to which his Honour referred were those which I have already mentioned, as well as others which surfaced on 31 July 2001. There had, on that day, also been a good deal of discussion with respect to a number of documents which had been found in the applicant's vehicle at the time of his arrest. The applicant's explanation of these (which seems to have been somewhat variable in content) was essentially that they were the sheets of paper onto which he had copied the information found in the wallet which had been left in his car. His counsel said that the applicant believed that the names on the sheets of paper would be those of contacts to drug users to whom he might sell the drugs. One of these, exhibit "RAN3", contained various names and phone numbers in the applicant's handwriting as well as a number of dollar figures. His counsel at first conveyed to the Court the applicant's instructions that only some of the handwriting on this document was his. However, she later told the Court (seemingly after speaking to the applicant) that the applicant admitted that all of the handwriting on that document was his. She also said that she was instructed by the applicant that a calculation on one of the documents found in his possession (which appeared to be a calculation of likely profit) was copied by him from one of the documents found in the wallet. No sensible explanation was provided as to why he should have done so.
12 The Crown had also tendered evidence that the applicant, when first confronted by the police, had denied any knowledge of the drugs found in his possession and had said that he was going to ask his friends what they were when he got home. He said this notwithstanding that some of the drugs had been concealed by the applicant in a vent in the motor vehicle and that the vehicle had contained a set of electronic scales.
13 Having referred to these inconsistent accounts, the sentencing Judge turned to matters of mitigation and aggravation. He said:
"There are some mitigating factors; your age, previous work history and limited criminal record. There are, though, a number of aggravating features to be borne in mind. Firstly, the amount of drugs involved …; their purity; the obvious part you played and were intending to play in the distribution of these drugs in the community; and the fact that you're not a drug user other than, according to your counsel, to a minimal degree. On the authorities, the position is that the deterrence and protection
(Page 7)
- of the community are undoubtedly the principal considerations in sentencing in these matters."
14 His Honour went on to say that, in his opinion, an appropriate "head term of imprisonment" of 8 years' imprisonment was appropriate, but that he would deduct from that total period a period of 1 and a half years in respect of the plea of guilty. He then imposed the sentences to which I have referred.
15 That brings me back to the various sub-grounds of the grounds of appeal. There are four of them. The first (ground A) is that the sentencing Judge failed to give any or sufficient weight to the personal antecedents of the applicant and to the pre-sentence report which had been obtained on his behalf. The second (ground B) is that the sentencing Judge erred in finding that the "documents" had any "inter-connections" with the applicant. The third (ground C) is that the sentencing Judge erred in finding that the applicant had lied to the police and had not co-operated with them. The fourth (ground D) is that the sentencing Judge erred in not giving him a discount of 30 per cent in respect of his fast-track plea of guilty.
16 As to ground A, it is plain, on the view of the majority in Ryan v The Queen (2001) 75 ALJR 815, that it would be an error for a trial Judge to disregard, entirely, an applicant's prior good character (see McHugh J at [36] and [37]; Kirby J at [102] and [112]; and Callinan J at [177]). In this case the applicant had no criminal record of any significance and his antecedents were generally favourable. However, these matters were specifically referred to by the sentencing Judge as mitigating factors (his Honour referred expressly to the applicant's age, work history and limited criminal record) and it does seem, from a reading of the sentencing remarks as a whole, that his Honour took them into account in fixing the starting point of 8 years' imprisonment. While his Honour did not mention the pre-sentence report which had been prepared in respect of the applicant, there is nothing to suggest that he did not take its contents (which encompassed such matters as the applicant's age and work ethic) into account. The transcript of the sentencing proceedings reveals that the pre-sentence report was referred to at some length by the applicant's counsel on 5 June 2001 and that the concluding paragraph thereof was again read to the sentencing Judge on 31 July 2001. I am consequently not persuaded that his Honour made any error in that respect.
17 So far as ground B is concerned, his Honour was plainly entitled to find that the documents to which he referred had some connection with
(Page 8)
- the applicant. On the applicant's own version of events, some of these, at least, were documents which he had copied out himself upon the basis that he might approach some of the persons there listed in order to see whether or not they might buy drugs from him.
18 Also, although there was no ground of appeal directly raising this issue, it seems to me that it was open to the sentencing Judge to find that, at the time of the offence, the applicant was engaged in the distribution of the drugs in his possession. The documents in the applicant's possession plainly indicated that he was proposing to distribute those drugs to one or more of the people on his list and, as will be apparent, his counsel conceded this in the course of submissions on his behalf. There is, I think, no other way of understanding the submissions made on 31 July 2001 than as indicating that, at the time of his arrest, the applicant proposed to sell the drugs.
19 That said, it was not, in my respectful opinion, open to the sentencing Judge to sentence the applicant upon the basis that he was engaged, generally, in the distribution of drugs. Whether or not his Honour did so is not entirely clear from his sentencing remarks. His comment that, at the time of the offence, the applicant was "engaged alone or with others in the distribution of drugs" is suggestive of a finding of this kind, as is his disbelief of the applicant's explanation as to the source of the money found in his possession. Against this, his Honour does later refer to the applicant's role in the distribution of "these" drugs.
20 However, I am not persuaded that any error in that respect provides a sufficient basis for setting aside any of the sentences imposed upon the applicant. Even leaving to one side the failure to raise any ground of appeal in this regard (the applicant having been unrepresented), it seems to me that the applicant's role in the sale, only, of the methylamphetamine found in his possession was, in all of the circumstances of the case, such as to justify the sentence imposed upon him in respect of that offence and I do not think that any different sentence should have been passed in that respect or in respect of any of the other sentences imposed upon the applicant. (See, in this respect, s 689(3) of the Criminal Code.)
21 So far as ground C is concerned, it seems to me that the sentencing Judge was entitled to find that the applicant had lied to the police and had failed to co-operate with them. It was quite plain from the applicant's own version of events that his denial, to the police, of any knowledge of what the items in his possession were was false. Also, the applicant's conflicting accounts are indicative of a lack of any genuine co-operation.
(Page 9)
22 So far as ground D is concerned, I am not at all persuaded that the sentencing Judge erred in giving to the applicant a discount of 18 months' imprisonment in respect of his early plea of guilty. While the applicant contended that this was less than the range of 25 to 35 per cent specified in such cases as Radebe v The Queen [2001] WASCA 254 at [28], that range is only a general guide which might be departed from in appropriate circumstances. As the High Court has pointed out in Cameron v The Queen (2002) 187 ALR 65 at [22], the issue is to what extent a plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. In this case the applicant, who had, effectively, been caught red-handed, fell some distance short of accepting full responsibility for his conduct, as was evidenced by his attitude to the Court in giving inconsistent, and often exculpatory, accounts of the circumstances under which he had acquired the drugs and as regards his intentions in respect of them. The applicant's attitude also belied, to some extent at least, his assertion of remorse.
23 Finally, it will be apparent from what I have already said that I do not consider that it can be said that the total sentence imposed upon the applicant was manifestly excessive or, indeed, that any of the individual sentences imposed upon him was so. These offences were serious. Methylamphetamine, in particular, is a drug which has caused considerable problems in the community. The quantity of that drug found in the applicant's possession was significant. Of the total of 146.63 grams, 13.8 grams of the methylamphetamine had a high purity rating of 75 per cent, with the remaining quantity having a purity ranging between 2 per cent and 75 per cent. A large proportion of the drugs found in the applicant's possession were in tablet form, there having been some 400 tablets in all, with most of these having contained methylamphetamine and only 21 of them having contained MDMA. Each tablet was expected to be worth $50 upon sale. The applicant was, on his own admission, only an infrequent drug user. It is plain that his involvement with these drugs was motivated solely by a desire for commercial gain. In those circumstances the sentence imposed by the sentencing Judge was, in my opinion, within the range of an acceptable exercise of discretion. Indeed, and as I have already said, even if an error in the sentencing process had been shown, I would not have been prepared to impose a different sentence.
24 I would consequently refuse the application for leave to appeal.
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25 MILLER J: I have had the opportunity of reading the reasons for judgment of Steytler J and I agree with his Honour's reasons. I agree that the application for leave to appeal against sentence should be refused.
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