Pellew v The State of Western Australia
[2008] WASCA 169
•20 AUGUST 2008
PELLEW -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 169
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 169 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:22/2008 | 8 AUGUST 2008 | |
| Coram: | STEYTLER P WHEELER JA MILLER JA | 20/08/08 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| D | |||
| PDF Version |
| Parties: | PETA LEE PELLEW THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Application for extension of time in which to appeal No satisfactory explanation for delay Whether miscarriage of justice has occurred Criminal law and procedure Sentencing Sale or supply of methylamphetamine Totality principle Turns on own facts |
Legislation: | Nil |
Case References: | Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152 Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49 Colangelo v The State of Western Australia [2004] WASCA 294 Dann v The State of Western Australia [2006] WASCA 254 Dixon v The State of Western Australia [2006] WASCA 255 Gavin v The Queen (1992) 6 WAR 195 Martino v The State of Western Australia [2006] WASCA 78 Narkle v The Queen (Unreported, WASCA, Library No 6108, 2 December 1985) Nelis v The Queen [2000] WASCA 194 Woods v The Queen (1994) 14 WAR 341 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PELLEW -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 169 CORAM : STEYTLER P
- WHEELER JA
MILLER JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : KENNEDY CJDC
File No : IND 198 of 2007
Catchwords:
Criminal law and procedure - Application for extension of time in which to appeal - No satisfactory explanation for delay - Whether miscarriage of justice has occurred
(Page 2)
Criminal law and procedure - Sentencing - Sale or supply of methylamphetamine - Totality principle - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: D
Representation:
Counsel:
Appellant : Ms A S Rogers
Respondent : Mr B Fiannaca SC
Solicitors:
Appellant : Andrew Maughan & Associates
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152
Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49
Colangelo v The State of Western Australia [2004] WASCA 294
Dann v The State of Western Australia [2006] WASCA 254
Dixon v The State of Western Australia [2006] WASCA 255
Gavin v The Queen (1992) 6 WAR 195
Martino v The State of Western Australia [2006] WASCA 78
Narkle v The Queen (Unreported, WASCA, Library No 6108, 2 December 1985)
Nelis v The Queen [2000] WASCA 194
Woods v The Queen (1994) 14 WAR 341
(Page 3)
1 STEYTLER P: The appellant was convicted, after pleading guilty, on one count of possessing a prohibited drug with intent to sell or supply and eight counts of selling or supplying a prohibited drug. She was sentenced to a term of 18 months' imprisonment on the count of possession with intent to sell or supply and to terms of 12 months' imprisonment on each of the other counts. The sentences imposed on counts 1 to 4 were ordered to be served cumulatively. The sentences imposed on counts 5 to 9 were ordered to be served concurrently with each other and concurrently, also, with the terms imposed on counts 1 to 4. This gave rise to a total term of 4 years and 6 months' imprisonment. She was declared to be eligible for parole. She wishes to appeal against the sentences imposed.
The offences
2 All of the offences involved methylamphetamine. On 16 October 2007 police executed a search warrant at the appellant's home. They found 17.5 g of methylamphetamine with a purity of 31% in a clipseal bag in a cupboard in the kitchen. There was also a smaller bag containing 0.7 g of methylamphetamine and $600 in cash. Elsewhere in the kitchen the police found 0.11 g of methylamphetamine in a clipseal bag, some electronic scales, a large quantity of unused clipseal bags, a container of cutting agent and other items commonly used in connection with the sale of methylamphetamine. The police also found $5,298.30 in cash in the pocket of the appellant's jeans. In a computer on the kitchen table they found a list of eight names, each with a sum of money recorded against it.
3 When questioned, the appellant made full admissions. She said that she had been selling methylamphetamine for the past 12 months and that, over that period, she had purchased and then sold approximately 1 to 2 ounces or 28 g to 56 g of methylamphetamine each week. She said that the names listed in the computer related to previous sales by her. The eight charges of selling and supplying related to the eight persons listed in the computer.
The appellant's personal circumstances
4 When sentenced, the appellant was 29 years old. She had no prior convictions of any significance. She has two children who were aged 5 and 8 at the time of sentencing. She is separated from their father, and he has provided her and the children with no financial support since February 2002.
5 The appellant began to use methylamphetamine in mid-2004. Subsequently, she entered into a relationship with a co-offender, Colin
(Page 4)
- Jump. Her drug usage escalated in mid-2005, although she managed to maintain employment from September 2005 until March 2006. In June 2006 she was diagnosed with depression. A later diagnosis, some three months later, suggested that her depression had increased. The appellant reacted to this by self medicating with methylamphetamine. In order to fund her use of the drug she brought quantities of drugs, cut them with a cutting agent, and then, after taking some out for her own use, on-sold the rest. She is said to have made only a small profit from her drug dealing. Although her counsel suggested that her use of drugs had led to her downfall, and that she had become addicted to them, the sentencing judge did not accept this, pointing out that the appellant told the police that she used drugs only on weekends and that she smoked the drugs and did not inject them.
6 Whatever may be the position in this last respect, it is apparent that the appellant had faced a number of problems in the period leading up to her offending behaviour. She experienced financial difficulties and was required to sell her home in July 2004. I have said that her previous relationship proved unsuccessful. Her partner at the time of the offending, Jump, was unemployed. I have said that she suffered from depression.
7 After being charged, the appellant obtained employment. At the time of sentencing, she was regarded as a responsible employee. She had moved back to live with her mother and had been accepted for treatment for her drug addiction. The sentencing judge was presented with a report from Holyoake dated 3 January 2007 which said that the appellant had been attending regular counselling and was 'keen' to continue to do so. She had terminated her relationship with Jump. Her children remain in the care of her mother.
8 Jump was convicted of possession with intention to sell or supply in respect of the drugs found in the home that he had shared with the appellant. He was also charged with three counts of receiving stolen property. On 23 March 2007 (after the appellant had been sentenced) he was sentenced to a term of 12 months' imprisonment in relation to the drug count and to terms of 6 months' imprisonment in respect of each of the three counts of receiving. These sentences were ordered to be served concurrently. Jump was younger than the appellant, having been 25 years old at the time of his offending. He had no criminal record and his role was regarded as having been less than that of the appellant. The sentencing judge, in his case, accepted a submission that his criminality was less than that of the appellant.
(Page 5)
Sentencing remarks
9 The sentencing remarks were very brief. The sentencing judge mentioned the circumstances of the offending, the appellant's cooperation with the police and the fact that she was dealing in drugs in an 'on-going commercial' way. She also mentioned that the appellant suffered from depression, that she had lost her home in July 2004 and that she had faced a number of difficulties since then. I have said that she referred to the appellant's claim that she was addicted to drugs but added that, when the police interviewed her, she had told them that she had not used drugs in the previous days and only used them on weekends. Finally, the sentencing judge referred to the appellant's favourable references, her attempts to rehabilitate herself and the ages of her two children. She then imposed the sentences to which I have referred.
Grounds of appeal
10 There are two grounds of appeal. The first contends that the totality principle was infringed by ordering that the terms on counts 2 to 4 be served cumulatively upon the term imposed in respect of count 1. This is said to have resulted in a 'crushing' sentence. The second ground asserts that the sentencing judge erred in the exercise of her discretion when she decided not to suspend the term of imprisonment imposed upon the appellant.
Application for extension of time
11 The appeal notice was lodged just over 12 months late. Part of the delay appears to have come about primarily because of difficulties experienced by the appellant in finding a legal advisor who thought that there was any merit in the appeal. The appellant's present counsel also had some difficulty obtaining the file. No explanation has been offered for a substantial portion of the delay, encompassing the period from mid-April 2007 until mid-November 2007. Where there is no satisfactory explanation for the delay (which is plainly the case here), an extension will be granted only if a miscarriage of justice has occurred: Gavin v The Queen (1992) 6 WAR 195, 219; Narkle v The Queen (Unreported, WASCA, Library No 6108, 2 December 1985).
Grounds 1 and 2
12 The range of sentences customarily imposed in cases involving quantities of methylamphetamine similar to those involved in this case have, relatively recently, been considered in Bosworth v The State of Western Australia [2007] WASCA 144; (2007) 175 A Crim R 49
(Page 6)
- [13] - [17] (McLure JA), [41] (Miller AJA). As Miller AJA (as his Honour then was) pointed out in Bosworth, the facts of individual cases vary enormously and any reference to comparative cases is consequently limited in its value. Moreover, the quantity of the drug is only one factor and its significance will vary depending on the circumstances of each case. However, the cases reviewed in Bosworth support the conclusion that a sentence of around 5 years, after the operation of the transitional provisions, is not unusual in cases of the present kind: see, in particular, Dann v The State of Western Australia [2006] WASCA 254; Borbil v The State of Western Australia [2007] WASCA 24; (2007) 169 A Crim R 152; Dixon v The State of Western Australia [2006] WASCA 255; Colangelo v The State of Western Australia [2004] WASCA 294 and Nelis v The Queen [2000] WASCA 194.
13 Because of the seriousness of the offending in this case, there was never any prospect that the sentencing judge would suspend any of the individual sentences of imprisonment imposed by her. As I have said, the cases reveal that the total sentence of immediate imprisonment imposed in the present case was within an appropriate range given the serious, and repeated, nature of the offending, even taking into account the pleas of guilty, cooperation and the personal circumstances of the appellant. A suspended sentence would unquestionably have been inappropriate.
14 Counsel for the appellant contended that the aggregate sentence of 4 1/2 years' imprisonment infringed the second limb of the totality principle because the total sentence was 'crushing'. That word connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. While it will be difficult for the appellant to undergo any term of imprisonment imposed upon her, having regard for the fact that she will be separated from her children, a total term of 4 years and 6 months' imprisonment cannot sensibly be described as 'crushing', in any relevant sense. Nor can it be said that the total effective sentence does not bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referrable to the appellant personally: Woods v The Queen (1994) 14 WAR 341.
15 Consequently, neither of the proposed grounds has any substance.
(Page 7)
Conclusion
16 Because there is no satisfactory explanation for the delay in lodging the appeal notice, and because a refusal to extend time will not lead to any miscarriage of justice, having regard for the conclusions at which I have arrived concerning grounds 1 and 2, I would dismiss the application for an extension of time.
17 WHEELER JA: I agree with Steytler P.
18 MILLER JA: I agree with Steytler P.
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