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Pacini v Bradley

Pacini v Bradley

Case [2021] WASC 179 4 June 2021

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   PACINI -v- BRADLEY [2021] WASC 179
CORAM:   HALL J
HEARD:   31 MAY 2021
DELIVERED          :   4 JUNE 2021
FILE NO/S:   SJA 1007 of 2021
BETWEEN:   JAMIE FRANKLIN PACINI
Appellant
AND
ADAM BRADLEY
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE J ANDRETICH
File Number            :   BUN 3583 - 3592 of 2020

Catchwords:

Criminal Law - Appeal against sentence - Multiple drug offences - Offer to sell or supply - Possession with intent to sell or supply - Total effective sentence of 18 months' immediate imprisonment - Whether magistrate used wrong test in determining whether a suspended sentence of imprisonment was inappropriate - Whether sentence infringed the totality principle

Legislation:

Nil

Result:

Leave to appeal granted on ground 1
Leave to appeal on grounds 2 and 3 refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	D Hunter & G Horstmann
Respondent	:	G Beggs

Solicitors:

Appellant	:	Legal Aid - Bunbury
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Apkarian v The State of Western Australia [2015] WASCA 67
Attenborough v The State of Western Australia [2005] WASCA 132
Bailey v The State of Western Australia [2016] WASCA 10
Crichton v The State of Western Australia [No 2] [2014] WASCA 37
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Donaldson v The State of Western Australia [2020] WASCA 193
Golding v Gaunt [2020] WASC 361
Goodwin v The State of Western Australia [2017] WASCA 184
Hayter v Thomson [2020] WASC 194
Jones v The State of Western Australia [2018] WASCA 105
Monisse v The State of Western Australia [2021] WASCA 52
Ness v The State of Western Australia [No 2] [2013] WASCA 56
Samuel v The State of Western Australia [2004] WASCA 154
SHI v The State of Western Australia [2020] WASCA 197
The State of Western Australia v Egeland [2018] WASCA 228
The State of Western Australia v Marchese [2006] WASCA 153
The State of Western Australia v Thompson [2014] WASCA 108
Truscott v The State of Western Australia [2016] WASCA 58
Wheeler v The Queen [No 2] [2010] WASCA 105

HALL J:

On 7 December 2020, the appellant was sentenced in the Bunbury Magistrates Court to a total effective sentence of 18 months' immediate imprisonment with eligibility for parole for nine offences, the majority of which were drug related. He now seeks leave to appeal against that sentence.
The notice of appeal was filed on 1 February 2021. It was therefore approximately one month out of time. The appellant applies for an extension of time and has filed an affidavit in support of that application. The reason the extension is required is because there were delays in obtaining a transcript of the Magistrates Court proceedings. The delay is relatively short and an adequate explanation for it has been provided. An extension of time should therefore be granted.
There are three grounds of appeal. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pacini v Bradley

Details

AGLC: Pacini v Bradley [2021] WASC 179
Case: [2021] WASC 179
Decision Date

CaseChat Overview and Summary

Jamie Franklin Pacini appeals against his conviction and sentence imposed on him by the Magistrates Court of Western Australia on 7 December 2020. The appeal concerns the sentence imposed for a series of drug related offences, and the length of that sentence. The respondent, Adam Bradley, is the Director of Public Prosecutions for Western Australia. The appeal is dismissed.

The appellant was sentenced to a total effective sentence of 18 months' imprisonment with eligibility for parole for nine offences, the majority of which were drug related. The appellant lodged an appeal on 1 February 2021. The appeal is one month out of time. The appellant applied for an extension of time and has filed an affidavit in support of that application. The reason the extension is required is because there were delays in obtaining a transcript of the Magistrates Court proceedings. The delay is relatively short and an adequate explanation for it has been provided. An extension of time should therefore be granted. There are three grounds of appeal. The first ground alleges that the magistrate made an error of law by applying the wrong test in determining whether the sentence of imprisonment should be suspended. The second ground alleges that the magistrate erred by imposing the wrong type of sentence, that is an immediate sentence of imprisonment rather than a suspended sentence. The third ground alleges that the length of the total sentence infringed the first limb of the totality principle, that is, that the total sentence was disproportionate to the offending when viewed as a whole. Leave is required for each ground of appeal. Leave can only be granted if the court is satisfied that a ground has a reasonable prospect of succeeding. For the reasons that follow, leave is granted in respect of ground 1, refused in respect of grounds 2 and 3 and the appeal is dismissed.

In respect of ground 1, the appellant submits that the magistrate made an error by applying an incorrect test in determining whether the sentence of imprisonment should be suspended. The practical difference, it was suggested, is that the formulation used by the magistrate prevented the imposition of a suspended sentence unless some positive level of satisfaction that it was appropriate was reached. Whether this involves a material difference is questionable but in any event any doubt as to whether the magistrate took an incorrect approach needs to be seen in the context of her remarks as a whole. When the sentencing remarks are viewed as a whole it is clear that the magistrate appreciated that, having reached the conclusion that a sentence of imprisonment was the appropriate sentence, she was required to reconsider all relevant factors again to determine whether that sentence could be suspended. It is apparent that the magistrate was not imposing a test that required there be some exceptional reason for the imposition of a suspended sentence or that she could not impose a suspended sentence unless there was some compelling reason to do so. Rather she came to the positive conclusion that a suspended sentence was inappropriate for the reasons that she gave. Although leave to appeal in respect of this ground would be granted, it has not been made out.

In respect of grounds 2 and 3, the appellant must demonstrate that the sentencing outcome was one that was not open to the magistrate in the proper exercise of her discretion. It must be established that the sentence imposed was so unreasonable or plainly unjust that an error in the exercise of the discretion can be inferred. The maximum penalties have been referred to in the table that appears at [30]. It is relevant to note that the maximum sentence for each of the s 6(1) Misuse of Drugs Act offences was 25 years' imprisonment or $100,000 or both. The major sentencing considerations for drug dealing offences are general and personal deterrence. Although the weight of the drugs in question is generally not the chief factor to be taken into account in fixing a sentence, it is a matter of importance. The offending in this case was not a one-off aberration but an ongoing course of conduct engaged in over a period of weeks. It was particularly aggravated by the fact that the appellant continued to engage in drug dealing offending after he had been stopped by police and found in possession of 1.9 g of methylamphetamine. Whilst the appellant was a user/dealer he nonetheless engaged in drug dealing for financial gain. Although the appellant's rehabilitative efforts and his participation in the STIR program were commendable, the mitigation that could be extended to him on account of those factors was limited given the well-established principles that apply in sentencing for drug offending. The individual sentences imposed were well within the appropriate ranges for offences of the type and no claim is made that any individual sentence was manifestly excessive. The magistrate's approach was to impose the head sentence for the most serious of the offences, to make the sentence for the offence that occurred after the police stop cumulative to reflect the seriousness of that offending and to make all other sentences concurrent. The orders of concurrency were a proper application of the totality principle in the circumstances of this case. The total effective sentence was a proper reflection of the whole of the criminal conduct. That sentence was not disproportionate to that offending. Neither the type nor length of sentence imposed by the appellant leads to a conclusion that the sentence imposed was unreasonable or plainly unjust. Grounds 2 and 3 are not reasonably arguable and leave in respect of them should not be granted.

Orders