Mishal v The Queen
[2001] WASCA 328
•26 OCTOBER 2001
MISHAL -v- THE QUEEN [2001] WASCA 328
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 328 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:89/2001 | 2 OCTOBER 2001 | |
| Coram: | STEYTLER J TEMPLEMAN J ROBERTS-SMITH J | 26/10/01 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed Application for leave to re-open appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | BASIL MOHD MISHAL THE QUEEN |
Catchwords: | Criminal law and procedure Appeal against sentence Drug offences Whether sentence is so severe so as to be a mis-exercise of a sentencing judge's discretion Criminal law and procedure Appeal against sentence Application for leave to re-open appeal Whether application raises cogent grounds sufficient to justify re-opening of appeal |
Legislation: | Misuse of Drugs Act 1991 (WA), s 6(1)(a), s 34 Sentencing Act 1995 (WA), s 6 |
Case References: | Bellisimo (1996) 84 A Crim R 465 Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 De L v Director-General, NSW Department of Community Services [No 2] (1997) 190 CLR 207 Dinsdale v The Queen (2000) 74 ALJR 1538; (2000) 115 A Crim R 558 House v The King 1936) 55 CLR 499 James v The Queen (1985) 14 A Crim R 364 Langridge v The Queen (1996) 17 WAR 346 Lowe v The Queen (1984) 154 CLR 606 Lowndes v The Queen (1999) 195 CLR 665 Mantini (1997) 95 A Crim R 33 Marchesano (2000) 116 A Crim R 237 Marchesano v The Queen [2000] WASCA 225 Minchinton v The Queen (1998) 104 A Crim R 502 P (1992) 39 FCR 276 Shooter (1997) 97 A Crim R 581 Watt v The Queen [2000] WASCA 354 Calder; unreported, CCA SCt of WA; Library No 960534; 11 September 1996 Darwell v R (1997) 94 A Crim R 35 Dunn (1986) 32 A Crim R 203 Ibbs (1987) 163 CLR 447 Kelly v The Queen, unreported; CCA SCt of WA; Library No 950245; 19 May 1995 R v Liddington (1997) 18 WAR 394 Sanori Developments Pty Ltd v Raven, unreported; SCt of WA; Library No 950673; 7 December 1995 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : MISHAL -v- THE QUEEN [2001] WASCA 328 CORAM : STEYTLER J
- TEMPLEMAN J
ROBERTS-SMITH J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appeal against sentence - Drug offences - Whether sentence is so severe so as to be a mis-exercise of a sentencing judge's discretion
Criminal law and procedure - Appeal against sentence - Application for leave to re-open appeal - Whether application raises cogent grounds sufficient to justify re-opening of appeal
Legislation:
Misuse of Drugs Act 1991 (WA), s 6(1)(a), s 34
Sentencing Act 1995 (WA), s 6
(Page 2)
Result:
Appeal dismissed
Application for leave to re-open appeal dismissed
Category: A
Representation:
Counsel:
Applicant : Mr M T Trowell QC
Respondent : Ms J A Girdham
Solicitors:
Applicant : Laurie Levy
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bellisimo (1996) 84 A Crim R 465
Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246
De L v Director-General, NSW Department of Community Services [No 2] (1997) 190 CLR 207
Dinsdale v The Queen (2000) 74 ALJR 1538; (2000) 115 A Crim R 558
House v The King 1936) 55 CLR 499
James v The Queen (1985) 14 A Crim R 364
Langridge v The Queen (1996) 17 WAR 346
Lowe v The Queen (1984) 154 CLR 606
Lowndes v The Queen (1999) 195 CLR 665
Mantini (1997) 95 A Crim R 33
Marchesano (2000) 116 A Crim R 237
Minchinton v The Queen (1998) 104 A Crim R 502
P (1992) 39 FCR 276
Shooter (1997) 97 A Crim R 581
Watt v The Queen [2000] WASCA 354
(Page 3)
Case(s) also cited:
Calder; unreported, CCA SCt of WA; Library No 960534; 11 September 1996
Darwell v R (1997) 94 A Crim R 35
Dunn (1986) 32 A Crim R 203
Ibbs (1987) 163 CLR 447
Kelly v The Queen, unreported; CCA SCt of WA; Library No 950245; 19 May 1995
R v Liddington (1997) 18 WAR 394
Sanori Developments Pty Ltd v Raven, unreported; SCt of WA; Library No 950673; 7 December 1995
(Page 4)
1 STEYTLER J: I have had the benefit of reading in draft the reasons for decision of Templeman J. I agree with him that the appeal should be dismissed.
2 While there were significant mitigating circumstances, including the applicant's favourable antecedents, his relative youth, his positive employment, the strong support provided by his family and the fact that he was holding the drugs in question simply for the purpose of returning them to their owner, I am not persuaded that the sentencing Judge erred in the exercise of his discretion in declining to impose a period of suspended imprisonment and in imposing an immediate sentence of imprisonment for a period of 3 years.
3 The sentencing Judge had been asked by counsel for the applicant to impose a suspended sentence of imprisonment but declined to do so having regard for the seriousness of the offence.
4 It is settled that the imposition of a sentence is an exercise of judicial discretion and that it is not sufficient that an appellate court may have taken a different approach or imposed a different sentence. It must be demonstrated that the sentencing Judge erred in the exercise of his or her discretion: Lowndes v The Queen (1999) 195 CLR 665.
5 This was, as the sentencing Judge remarked, a serious offence. It involved a substantial quantity (76 tablets, albeit of a purity of only 2 per cent) of a serious drug in the form of methylamphetamine. When regard is had for that fact, for the very significant penalties provided for by the Misuse of Drugs Act 1991 and for the need for both personal and general deterrence, it cannot, in my respectful opinion, be said that the sentencing Judge erred in the exercise of his discretion.
6 As to the application to present further submissions, I am not persuaded that this has any merit at all.
7 The purpose of those submissions was that of persuading us that senior counsel for the appellant had erred, at the hearing of the appeal, in conceding that this was not an appropriate case for the imposition of a suspended sentence and in suggesting that an appropriate term of imprisonment would have been one of 2 years. Counsel for the applicant now wishes to submit that a suspended sentence was appropriate and that a more appropriate term of imprisonment would have been one of between 12 and 18 months imprisonment.
(Page 5)
8 I should say, firstly, that the court was not bound by the concessions made by senior counsel at the hearing of the appeal in any event. The gravamen of the appeal was that the sentencing Judged erred, in the exercise of his discretion, in imposing too severe a sentence. That necessarily involved the court in considering the range of sentencing options which had been open to the sentencing Judge and, as will be apparent from what I have already said, it seems to me that it was open to his Honour to impose the sentence in fact imposed by him. That being so, and no new factual or legal consideration having been pointed to in the submissions now proposed to be made, it seems to me that this is not a case in which it would be appropriate to grant leave to make the further submissions to which I have referred.
9 I would consequently grant the applicant leave to appeal but dismiss the appeal against sentence. I would also dismiss the application for leave to re-open the appeal.
10 TEMPLEMAN J: The appellant Mr Basil Mohd Mishal was convicted after trial by jury in the District Court on a charge of possessing a quantity of methylamphetamine with the intention to sell or supply it, contrary to s 6(1)(a) of the Misuse of Drugs Act 1991. The appellant was sentenced to a term of imprisonment for three years, with eligibility for parole.
11 The appellant contends that the sentence imposed on him was manifestly excessive in all the circumstances; and in particular
• his age and lack of previous convictions
• that he was not a dealer
• that he intended to supply the drugs by returning them to another person: not to sell them
• the quantity and quality of the drugs, being 76 tablets having a purity of 2 per cent.
12 The matters on which the appellant relies are not, of course, the only matters which the learned District Court judge was obliged or entitled to take into account in the exercise of his discretion in the sentencing process. The Sentencing Act 1995 required the judge to impose a sentence which was "commensurate with the seriousness of the offence": s (6). That is to be determined by taking into account:
(a) the statutory penalty for the offence
(Page 6)
- (b) the circumstances of the commission of the offence
(c) any aggravating factors; and
(d) any mitigating factors.
- The Sentencing Act does not, however, contain any formula or guide as to the weight which must be attributed to each of these factors. They are matters for the discretion of the sentencing judge. That is why the Court of Criminal Appeal will not interfere with a sentence imposed in a lower court unless satisfied that the discretion has not been exercised properly.
13 That will be the case if the sentencing judge has failed to take account of a relevant matter: or has had regard to an irrelevant matter. If an appellant is unable to demonstrate an obvious error in the exercise of the sentencing discretion, the Court of Criminal Appeal will not interfere unless the sentence is shown to be so obviously wrong that it must have resulted from a mis-exercise of the discretion.
14 The statutory penalty for the indictable offence of possessing a prohibited drug with intention to sell or supply is a fine not exceeding $100,000 or imprisonment for a term not exceeding 25 years, or both a fine and imprisonment: s 34 of the Misuse of Drugs Act.
15 Although maximum penalties are imposed only for the worst offences of their kind, the fact that a very substantial term of imprisonment may be imposed is a reflection of the seriousness with which Parliament views the sale or supply of prohibited drugs.
16 In the present case, it seems that counsel did not draw the statutory penalty to the attention of the learned sentencing judge: nor did he refer to it in his sentencing remarks. The appellant makes no complaint about that.
17 In any event, it may be assumed that the very experienced judge was well aware of these matters. Indeed, his Honour said that the supply of drugs "is a matter of huge concern to the community". That concern is, of course, reflected in the statutory penalty.
18 The learned judge did refer to the circumstances of the commission of the offence. The drugs had been hidden by the appellant below the bottom drawer of his bedside cabinet. The appellant had directed police officers to that location when they visited his place of residence - his parents' home - in the execution of a search warrant.
(Page 7)
19 The learned judge said that in the course of a conversation with the police officers, the appellant had "made it plain" he was holding the drugs; that he had them in his possession for someone else and that he "intended to dispose of these drugs to some other person".
20 Leading counsel for the appellant drew the attention of the Court to a possible conflict between the evidence of the appellant and that of the police officers about that issue. According to the police officers, the appellant said he was "just holding (the tablets) for a friend".
21 The appellant's evidence, was that he could not remember the exact words he had used, but thought he probably said "I'm waiting to give them back", because he did not know to whom the tablets belonged.
22 To the extent that there was a conflict in the evidence, it must have been resolved by the jury in convicting the appellant of an intention to supply the drugs. Thus the jury were satisfied beyond reasonable doubt that the appellant had the drugs in his possession for someone else, and was intending to dispose of them to another person, as the learned judge said.
23 No doubt for this reason, the learned judge rejected the appellant's evidence that he had simply found the drugs in his car, perhaps because someone had attempted to set him up. The jury must have rejected that evidence also. If true, it would have meant that the appellant came unwittingly into possession of the drugs. He could not then have been convicted of an intention to supply. It was conceded that the appellant did not intend to sell the drugs.
24 As the learned sentencing judge said, something of the order of 75 per cent of the criminal work of the District Court involves offenders who commit crimes to feed drug habits or while under the influence of drugs. The cost to the community, both materially and in terms of human misery and suffering which flow from the drug trade is enormous. And yet the appellant was prepared to play a part - albeit a relatively small part - in contributing to this criminal activity.
25 In my view, the learned sentencing judge was perfectly justified in saying that the appellant had committed a very serious crime. His Honour was entitled to impose a sentence which served as a personal deterrent to the appellant and as a general deterrent to those who might be tempted to commit similar offences. That is an important consideration in the sentencing process. Imprisonment is an unpleasant punishment: and it is desirable that this should be well known in the community.
(Page 8)
26 There were no aggravating circumstances. The learned judge emphasised to the appellant that he was not being punished for defending the charge. It was his right to do so.
27 There were some mitigating circumstances. In particular, the appellant's previous good character and his relatively young age: although at 21 years and coming from a good family, the appellant was old enough to have known better, and to be fully conscious of the possible consequences of his actions.
28 The learned judge did not refer expressly to matters of mitigation. But, he sentenced the appellant immediately after counsel had made a comprehensive plea in mitigation. His Honour obviously had this plea in mind when he said that counsel had urged him to impose a non-custodial sentence.
29 As I have already noted, it was a matter for the learned judge to give such weight to the mitigating circumstances as he thought fit. It was necessary to balance those matters against the seriousness of the offence.
30 Subsection 6(4) of the Sentencing Act provides that a court must not impose a sentence of imprisonment on an offender unless it decides that -
(a) the seriousness of the offence is such that only imprisonment can be justified; or
(b) the protection of the community requires it.
31 The learned sentencing judge decided that the crime committed by the appellant was too serious to warrant a non-custodial sentence.
32 While a sentence of imprisonment is no doubt a tragedy for the appellant and for his family, and while his sentence may be severe, I am not persuaded that it is so severe as to reflect a mis-exercise by the learned sentencing judge of the very wide discretion which he had in dealing with the appellant. It must be understood that the courts will deal severely with offenders who deliberately involve themselves in those drug-related criminal activities for which Parliament has prescribed substantial sentences of imprisonment.
33 In the absence of mitigating circumstances such as youth, pleas of guilty or full co-operation with the authorities, the seriousness of such offences will very often result in the imposition of lengthy sentences of imprisonment.
(Page 9)
34 In my view, the appeal should be dismissed.
ADDENDUM
35 After I had prepared a draft of the foregoing reasons for dismissing this appeal, the Court received an application by the applicant for leave to make further submissions "in order to clarify an issue which arose during the course of the hearing of this appeal".
36 The gravamen of the application was that leading counsel had been wrong, during the course of argument, to concede that a term of imprisonment to be served immediately was an appropriate disposition in the circumstances of this case.
37 It was said that counsel would now wish to submit instead that an appropriate term of imprisonment was not two years, as submitted originally, but between 12-18 months. Further, it was sought to submit that this was an appropriate case to suspend imprisonment, given that:
"(i) this was not a case of drug trafficking, which would have warranted a term of imprisonment immediately to be served;
(ii) overall, this case was devoid of any circumstances of aggravation;
(iii) the offending was clearly at the lower end of the scale in terms of culpability, particularly given the low purity of the drug, the absence of any evidence of dealing for profit and the finding that the applicant intended to deliver the drug to someone without reward;
(iv) the applicant knew only that he was in possession of an unspecified quantity of tablets of a prohibited drug, which he erroneously believed to be ecstasy;
(v) the applicant was a young man of 21 years of age without any history of criminal convictions and was otherwise of good character."
38 The application was opposed by the Crown.
(Page 10)
39 The Court therefore re-convened in order to determine whether leave should be given to the applicant to re-open the appeal: and if so, what should be the outcome.
40 In accepting that leave was required the applicant referred to Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246. There, lengthy written submissions were delivered to the High Court, without leave, after the hearing had concluded. At pp 257-8, Mason J was moved to express his dissatisfaction thus:
"We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions."
41 Although that case involved a civil matter, the same approach is taken in the criminal jurisdiction. In Mantini (1997) 95 A Crim R 33, the Court of Appeal in Victoria refused leave to an appellant to amend his grounds of appeal at the hearing. Callaway JA, with whom the other members of the court agreed, said (at p 36):
"An application for leave to amend grounds of appeal is not granted as of right, even where, as in the present case, it is not opposed by the Crown. The disposition of the Court's business is not assisted by late amendments, which frequently make it necessary or desirable to secure a further report from the sentencing judge pursuant to r 2.27 of the Criminal Appeals and Procedures Rules 1988. Those are disadvantages that must be accepted if a proposed ground has a sufficient prospect of success, but in my opinion this ground did not."
42 I appreciate that not all the considerations mentioned by Callaway JA are present here. However, an application made after the appeal has been concluded, must raise very cogent grounds if it is to be entertained.
43 It is implicit in the observations made by Callaway JA that the court must have regard to the merits of the application in deciding whether to grant leave to re-open. That is particularly important in the criminal jurisdiction. It would be quite unjust to deny a convicted person an opportunity to present a compelling argument, even if it had not been raised at the hearing through some error or omission on the part of his legal representatives: see De L v Director-General, NSW Department of Community Services [No 2] (1997) 190 CLR 207, 215.
(Page 11)
44 In my view, the present application is without merit. To submit that an appropriate term of imprisonment would be between 12-18 months rather than 2 years adds nothing to the original ground of appeal in which it was contended that the sentence imposed on the applicant was manifestly excessive. The proposed submission does not clarify an issue which arose during the hearing.
45 Nor does the proposed submission that this was an appropriate case to suspend imprisonment. Indeed, there was no "issue" about that matter.
46 During the course of argument, I asked leading counsel for the appellant whether he was submitting that the sentencing judge should have given some consideration to suspending the sentence. Counsel said "no, no". However, the matter was pursued by Roberts-Smith J, who then asked counsel whether the sentence should have been suspended. Counsel said:
"At the end of the day, I think the fact of being in possession of 76 tablets or 20 grams was a significant factor weighing against (a suspended sentence) … but it was a fine line."
47 If, therefore, there was ever any issue about that matter, it was closed by counsel. It was not addressed by counsel for the Crown. Furthermore, it must be said that the response was given by experienced counsel, in the knowledge that counsel who had appeared for the applicant at trial had submitted in his plea in mitigation that a fine or a suspended sentence would be an appropriate disposition.
48 As I have noted in my reasons, the learned sentencing Judge said he had been urged by counsel to impose a non-custodial sentence. Clearly, the Judge was there referring to the plea in mitigation. In that plea, counsel for the appellant raised, directly or indirectly, all of the matters on which the appellant now seeks to rely in support of his contention that the sentence of imprisonment should have been suspended.
49 The learned Judge therefore took those matters into account when he held that the crime committed by the appellant was too serious to warrant a non-custodial sentence. And in my view, in the exercise of his discretion, the learned Judge was fully entitled to reach that conclusion. It must be emphasised that in serious offences such as this, mitigating circumstances which are personal to the defender, such as age and good character, carry relatively little weight in comparison with the need to impose generally deterrent sentences: see Marchesano (2000) 116 A Crim R 237, par [41].
(Page 12)
50 I am not persuaded, therefore that there is sufficient merit in the application to justify the re-opening of the appeal.
51 The application should be dismissed.
52 ROBERTS-SMITH J: I have had the benefit of reading in draft the judgment of Templeman J. The facts and circumstances are sufficiently set out there to save me having to repeat them.
53 It was submitted on behalf of the applicant that there was no evidence he knew specifically the quantity of tablets involved. That is so, if one is looking at the actual number, but as has been said, the fact that there was a large number of tablets in this envelope was, on the evidence, certainly within his knowledge. But what may be drawn from that is perhaps another thing.
54 This is a person who has not been shown to have had any particular personal knowledge of, nor acquaintance with, drugs. It was not proved he knew exactly what the tablets were, nor what their strength was. In fact the strength was unusually low, apparently being only 2 per cent methylamphetamine. We were told that this could normally be expected to range from 6 per cent (Bellisimo (1996) 84 A Crim R 465 and Watt v The Queen [2000] WASCA 354) to around 20 per cent (Marchesano v The Queen (2000) 116 A Crim R 237).
55 If an inference is to be relied upon adversely to an offender on sentence it must be either admitted or otherwise established beyond reasonable doubt (Langridge v The Queen (1996) 17 WAR 346). In this case therefore, the view could not be taken that the applicant intended to supply the tablets to a person who might reasonably be supposed to be engaged in the distribution of that drug, as opposed to having them for that individual's personal use, as that was neither admitted nor proved.
56 Thus, whilst I agree with all the learned sentencing Judge and Templeman J have said about the seriousness of the drug trade and the drug problem in our community, I do not think it was, or is, properly open to sentence him on the basis the applicant was prepared to play a part in the distribution of the drug in the sense of assisting the person to whom the tablets belonged to distribute them to others, as distinct from the part he would necessarily play by returning the tablets to a person for that person's own use.
(Page 13)
57 That brings me back to the exercise of the learned sentencing Judge's discretion in accordance with the strictures of the Sentencing Act 1995 (WA). It is a fundamental principle of that Act that imprisonment is a sentence of last resort, and that immediate imprisonment is the sentence of last resort (s 6(4)(a)). That reflects the position at common law (James v The Queen (1985) 14 A Crim R 364; Lowe v The Queen (1984) 154 CLR 606).
58 In this case it was put to the learned sentencing Judge that a suspended sentence or fine would have been an appropriate disposition.
59 In my opinion a fine would not have been appropriate and a term of 3 years imprisonment could not be said to be outside the range. The real question, it seems to me, is whether his Honour erred in imposing immediate imprisonment or whether, in all the circumstances, a suspended sentence was appropriate. All the learned sentencing Judge said about that was (AB 14):
"It is a very serious crime and whilst your counsel has urged me to impose a non-custodial sentence, that I cannot do. The crime is too serious for that and the sentence that you will serve will be one of 3 years imprisonment and I will order that you be eligible for parole."
60 Section 76 of the Sentencing Act sets out no criteria for determining when a sentence of imprisonment should be suspended. What is clear since the decision of the High Court in Dinsdale v The Queen (2000) 74 ALJR 1538; (2000) 115 A Crim R 558, is that the question of imposing a suspended sentence is to be considered before a sentencing court turns to immediate imprisonment.
61 It is also clear from Dinsdale that whilst rehabilitation of the offender may be a very important factor militating in favour of a suspended sentence, it is not the only one; all relevant circumstances must be taken into account. The process was described by Burchett, Miles and O'Loughlin JJ in P (1992) 39 FCR 276 at 285:
"… All factors which are relevant to sentence should be taken into account before deciding that a sentence of imprisonment is appropriate and what the length of the term should be. In considering whether or not the term so fixed should be suspended the sentencing judge must either give double weight to some factors for which the judge has previously made allowance or look for new factors which are not relevant to the
(Page 14)
- factors already considered. Nevertheless, the exercise must be undertaken. In undertaking it, the judge is deciding whether, in all the circumstances, the offender should have the benefit of a special opportunity to reform, to rebuild his own life, or to make some recompense for the wrong done, or should have the benefit of the mercy to which King CJ referred in Osenkowski (1982) 30 SASR 212; 5 A Crim R 394, or for some other sufficient reason should have this particular avenue opened to him, provided the conditions of the suspension are observed."
62 I think it important in this regard to appreciate that subs (2) of s 76 of the Sentencing Act provides that:
"Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances."
63 This therefore requires the sentencing court to come to a conclusion that a term of imprisonment for that particular period would be appropriate in all the circumstances. It must then ask itself whether a suspended sentence is appropriate or whether immediate imprisonment is the only option - applying the principle as always, as I have said, that immediate imprisonment is the sentence of last resort. To put it another way, a suspended sentence should be imposed where the offence deserves imprisonment but the prevailing circumstances in the particular case justify a lesser sentence. As Murray J said in Minchinton v The Queen (1998) 104 A Crim R 502 at 507:
"I wish only to reiterate what I said in GP at 234; 389-390 that, beyond the general statements of principle as to the circumstances in which it will be appropriate to suspend imprisonment, and having regard to the way in which the relevant provisions of the Sentencing Act are expressed, there is 'no warrant for the conclusion that an additional element should be incorporated with respect to any given class or type of offence which would make the use of a suspended sentence a more exceptional, rare or unusual disposition than in respect of a different type of offence', given that the conditions warranting suspension are made out. The Sentencing Act is constructed in such a way as to negate the view that in any particular class of case suspension of imprisonment will only be justified in exceptional circumstances."
(Page 15)
64 Although GP and other authorities of this Court which pre-date Dinsdale are now to be read in light of that High Court decision, this observation of Murray J is in my respectful view, entirely consistent with Dinsdale.
65 A sentencing Judge is not required to list every sentencing option in respect of a particular offender. The conclusion that a sentencing Judge has in fact considered all relevant options will usually be apparent from the circumstances, including the submissions made by counsel and the remarks actually made by the Judge when passing sentence. That was the position in Shooter (1997) 97 A Crim R 581. At 595 Ipp J said he did not accept the argument that the sentencing Judge in that case had failed to give any consideration to the power to suspend the sentence and it therefore followed that it had not been shown that he had made any error of principle in the process of reasoning when sentencing the applicant to a term of actual imprisonment. In that context the appeal could succeed only if the sentence of 3 years immediate imprisonment actually imposed was outside the range of a proper sentencing discretion. His Honour concluded it was not. Steytler J agreed with Ipp J on the critical question in that case, whether it had been shown that the sentencing Judge failed to give any consideration to a suspended sentence. His Honour was not persuaded that the sentencing Judge had failed to consider that option, nor that he had failed to take into account any relevant circumstance.
66 In the present case his Honour made reference to the imposition of a "non-custodial sentence". In the context of the submissions which had been made to him by counsel for the applicant, I think this must be a reference to a suspended sentence. It cannot therefore be said that his Honour failed to consider that option. However, it seemed to me initially that in the circumstances of this case there might be a strong argument that the imposition of a suspended sentence was so clearly appropriate as to indicate that the exercise of his Honour's sentencing discretion had miscarried in some way, whether by him overvaluing the seriousness of the offence or undervaluing the obvious mitigating factors (see House v The King 1936) 55 CLR 499).
67 As Templeman J observes, the learned sentencing Judge did not refer expressly to matters of mitigation. Notwithstanding the seriousness of the offence, in light of the circumstances of the offence and the applicant's antecedents, the argument could well have been put it was not one in respect of which it could be said immediate imprisonment was the only appropriate sentence. There were in this case substantial mitigating factors going to suspension of sentence. The learned sentencing Judge
(Page 16)
- gave no reason why the seriousness of this particular offence in all the circumstances was such that only immediate imprisonment could be justified. Given the applicant's relative youth, the fact that he had no previous offences, his positive employment and family situation (which included the very strong support of his family), the unlikelihood that he would offend again and the circumstance that he must be taken to have been holding the tablets to return them to their owner for that person's personal use, rather than for wider distribution within the community, all these could be said to have made this a case in which, whilst a term of 3 years was clearly within the range of a proper exercise of the sentencing discretion, an order that it should be served immediately was not.
68 However this argument was not put on the hearing of the application: indeed, it was expressly disavowed by senior counsel, as Templeman J has explained.
69 Subsequent to the hearing the applicant sought leave to make further submissions, first that the appropriate term was between 12 and 18 months and secondly that any term of imprisonment imposed should have been suspended.
70 In my view this is not an appropriate case in which to grant such leave. The submission as to the length of the term of imprisonment raises no new issue. Nor does that of the suspended sentence. The latter had been specifically put to the learned sentencing Judge, it was not a particularised ground of appeal (although as Steytler J has pointed out, a general ground that a sentence is manifestly excessive would encompass it), and it had been expressly raised by the Court on the hearing of the application for leave to appeal and advisedly disavowed by senior counsel. Those circumstances in my view militate strongly against the prospect of such an argument succeeding, notwithstanding my own initial views to which I have referred above. All of these considerations in turn demonstrate there is no feature here which would justify a grant of leave to make the further submissions sought and I would refuse it.
71 I have already said that I consider a term of 3 years imprisonment could not be said to be inappropriate here.
72 In my view the only potentially live issue on this application would have been the question whether the sentencing discretion miscarried by imposing immediate imprisonment rather than a suspended sentence. In the circumstances I am not persuaded that argument would have such a prospect of success as to justify leave to appeal.
(Page 17)
73 I would refuse leave to appeal.
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