R v Lyon

[2001] WASCA 120 (S)

R -v- LYON [2001] WASCA 120 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 120 (S)
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:269/2000	Heard:	14 MARCH 2001
Coram:	MALCOLM CJ ANDERSON J STEYTLER J	Delivered:	17/04/01
Supplementary Delivered:	30/07/01
No of pages:	11	Judgment Part:	1 of 1
Result:	Omission from reasons for judgment corrected
PDF Version

Parties:	THE QUEEN JAMES LYON DARREN STUART SMITH
Catchwords:	Criminal law Drug offences Omission of reference in reasons for judgment to Misuse of Drugs Act 1981 (WA) s 34(2)(a) No necessity to correct sentence under Sentencing Act 1995 (WA) s 37
Legislation:	Misuse of Drugs Act 1981 (WA) s 34(1)(a), s 34(2)(a) Sentencing Act 1995 (WA) s 6, s 37, s 76
Case References:	Dinsdale v The Queen [2000] HCA 54; (2000) 74 ALJR 1538 Pantorno v The Queen (1989) 166 CLR 466 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- LYON [2001] WASCA 120 (S) CORAM : MALCOLM CJ

ANDERSON J
STEYTLER J

HEARD : 14 MARCH 2001 DELIVERED : 17 APRIL 2001 FURTHER HEARD : 21 JUNE 2001 SUPPLEMENTARY
DECISION : 30 JULY 2001 FILE NO/S : CCA 269 of 2000 BETWEEN : THE QUEEN

Appellant

AND

JAMES LYON
Respondent

FILE NO/S : CCA 270 of 2000 BETWEEN : THE QUEEN

Appellant

AND

DARREN STUART SMITH
Respondent

(Page 2)

Catchwords:

Criminal law - Drug offences - Omission of reference in reasons for judgment to Misuse of Drugs Act 1981 (WA) s 34(2)(a) - No necessity to correct sentence under Sentencing Act 1995 (WA) s 37

Legislation:

Misuse of Drugs Act 1981 (WA) s 34(1)(a), s 34(2)(a)

Sentencing Act 1995 (WA) s 6, s 37, s 76

Result:

Omission from reasons for judgment corrected

Representation:

CCA 269 of 2000

Counsel:

Appellant : Ms J A Girdham
Respondent : Mr M R Gunning

Solicitors:

Appellant : State Director of Public Prosecutions
Respondent : Gunning

CCA 270 of 2000

Counsel:

Appellant : Ms J A Girdham
Respondent : Mr L M Levy

Solicitors:

Appellant : State Director of Public Prosecutions
Respondent : Laurie Levy

(Page 3)

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

Dinsdale v The Queen [2000] HCA 54; (2000) 74 ALJR 1538
Pantorno v The Queen (1989) 166 CLR 466

Case(s) also cited:

Nil

(Page 4)

1 JUDGMENT OF THE COURT: On 14 March 2001 the Court heard appeals by the Crown under s 688(2) of the Criminal Code against the sentences imposed upon the respondents by the learned sentencing Judge, Hammond CJDC, namely, sentences to terms of imprisonment for 2-1/2 years which, in each case, were ordered to be suspended for 2 years. Judgment on the appeals was delivered on 17 April 2001. The Court allowed the appeals in each case and substituted an immediate sentence of imprisonment for 2-1/2 years with an order for eligibility for parole. The principal judgment was delivered by Anderson J with whom both Malcolm CJ and Steytler J agreed. In par [11] of his reasons Anderson J said:

"Cannabis is a prohibited drug and the maximum penalty for the offence of possession of a prohibited drug with intent to sell or supply is a fine of $100,000 or 25 years' imprisonment, or both: s 34(1)(a) Misuse of Drugs Act 1981 (WA). The quantity of the drug the subject of the charge was 7.917 kilograms, the estimated street value of which was between $36,000 and $54,000."

2 While the learned Judge correctly stated the effect of s 34(1)(a) there was an omission to refer to the qualification of that provision in s 34(2)(a) which provides that:

"A person who is convicted of an indictable offence referred to in subsection (1)(a) -

(a) being an indictable offence -


(i) relating only to cannabis; and

(ii) not relating to cannabis resin or any other cannabis derivative or to any prohibited drug or a prohibited plant other than cannabis,


is liable, if sentenced by the District Court or the Supreme Court, to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 10 years or both."

3 In a letter to the Associate to the Hon the Chief Justice dated 29 May 2001 Mr Robert Cock QC, the State Director of Public Prosecutions, drew attention to the "error" in the reasons and enquired whether the Court would entertain an application for the correction of the sentence pursuant to s 37 of the Sentencing Act 1995 (WA). By a letter dated 19 June 2001

(Page 5)

to the Director, copies of which were forwarded to the solicitors for the respondents, the Director was informed that:

"The Hon the Chief Justice has asked me to inform you that it is acknowledged that the reference in par [11] of the judgment of Anderson J was incorrect. The Court will re-list this matter for further consideration as soon as practicable in order to hear any submissions or entertain any application in relation to the sentence imposed. The Listing Co-ordinator will be in touch with both parties to arrange a date for the further hearing as soon as possible. The matter should be capable of being dealt with in not more than half an hour. A copy of your letter and this reply is being forwarded to the solicitors for the respondents.

The Court will entertain the application for bail at the same time."


The matter was further heard on 21 June 2001.

4 When the reasons for judgment were published on 17 April 2001, the Chief Justice was unable to be present. Anderson J presided with Steytler J being present. The transcript records the following:

"ANDERSON J: This appeal was heard on 14 March last by a court constituted by the Chief Justice, myself and Steytler J. The Chief Justice is not able to be present this morning. He has authorised me to announce that in his opinion the appeal should be allowed, the suspended sentence of 2 and a half years set aside and substituted by a sentence of immediate imprisonment for 2 and a half years. I publish the Chief Justice's reasons for coming to that decision. I have come to the same conclusion, and I publish my reasons for so doing.

STEYTLER J: I come to the same conclusion, and I publish my reasons likewise.

ANDRETICH, MS: I would move that the orders be set in place.

ANDERSON J: Very well. The sentences imposed in the District Court are set aside, and in lieu thereof sentences of 2 and a half years' immediate imprisonment are imposed, with eligibility for parole in each case."

(Page 6)

As the respondents were not in court, warrants were issued for their arrest.

5 Rule 68 of the Criminal Procedure Rules 2000 requires a Registrar to issue a certificate in the form of Form 19 of the final outcome of every appeal or other proceeding before the Court of Criminal Appeal and the orders made as a result. By a certificate dated 24 April 2001 a Registrar certified that the final outcome was that on 17 April 2001:

"Appeal allowed, Suspended sentence imposed set aside. Sentence of 2-1/2 years' imprisonment substituted with eligibility for parole. Start date 2/4/2001.

Order that a warrant be issued for the respondents' arrest."

6 Counsel for the Crown submitted that this Court, having correctly identified the errors of the learned sentencing Judge, set aside the suspended terms and then proceeded to re-sentence pursuant to s 689(3) of the Criminal Code by substituting immediate terms of imprisonment for 2-1/2 years for the suspended sentences for that same period. The Crown submitted that as the sentence imposed by the Court of Criminal Appeal correlated to that imposed by the learned sentencing Judge at first instance by making it immediate rather than suspended, the misstatement of the maximum penalty should be characterised as an error arising from an accidental slip or omission which this Court could correct of its own initiative pursuant to s 37(3) of the Sentencing Act. Although technically an application had been made by the Crown, it was submitted that the Court was able to make the correction of its own motion. It was submitted that the policy of provisions such as s 37 was to obviate the need for appeals to correct accidental slips or omissions and that the provision should be given a beneficial construction so as to give its operation wide scope. In Pantorno v The Queen (1989) 166 CLR 466 at 474, Mason CJ and Brennan J referred to what:

"… seems to have been an erroneous view in some sections of the legal profession (now hopefully corrected) that no application can be made to a Court of Criminal Appeal once its judgment is pronounced …"

7 In the present case, under the heading "Correction of Sentence" s 37 of the Sentencing Act 1995 provides that:

"(1) If a court sentences an offender in a manner that is not in accordance with this Act or the written law under which

(Page 7)

the offence is committed, the court may recall the order imposing the sentence and impose a sentence that is.

(2) The powers in subsection (1) may be exercised by a court on its own initiative or on an application by the offender or the prosecutor made in accordance with the regulations, but in any event the court must give all parties the opportunity to be heard.

(3) If a court's order imposing a sentence contains a clerical mistake or an error arising from an accidental slip or omission the court may correct it at any time on its own initiative without recalling the order, but the court must ensure that all parties and relevant authorities are notified of the correction.

(4) This section does not affect any right of appeal against a sentence.

(5) In this section -

'sentence' includes an order in addition to sentence."

8 In this case, the relevant error was the omission from the reasons for judgment of a reference to s 34(2)(a) of the Misuse of Drugs Act which imposes a qualification upon the maximum penalty provided for in s 34(1)(a). The omission of a reference to s 34(2)(a) in the reasons for judgment of Anderson J was an accidental omission from the reasons. The length of the sentence which was determined upon by the learned sentencing Judge of 2-1/2 years was not at any stage suggested by counsel for any of the parties to the appeal as being anything other than an appropriate sentence. The only issue on the appeal was whether the sentence should have been suspended. This Court was not required to review the length of the term. The learned sentencing Judge was clearly aware of the maximum penalty under s 34(1)(a) of the Misuse of Drugs Act.

9 The appeal to this Court was originally made on two grounds. The first was that the learned sentencing Judge erred in imposing a sentence that was manifestly inadequate in all the circumstances of the case. That ground was expressly abandoned before this Court. The only issue before this Court related to ground 2 which was that the learned sentencing Judge erred in suspending the sentence of imprisonment imposed. When he sentenced the respondents, the learned Judge said:

(Page 8)

"… I am bearing in mind that it was cannabis, I am bearing in mind the quantity of it, in my view it ought to attract a term of 2 and a half years' imprisonment as far as each of them are concerned."

10 His Honour then went on to consider the suspension of the sentences. The procedure followed was in accordance with s 76 of the Sentencing Act 1995 (WA) which provides that:

"(1) A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months.

(2) 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."

11 In Dinsdale v The Queen [2000] HCA 54; (2000) 74 ALJR 1538 it was held that s 76(2) was designed to restrain the imposition of an artificial term of imprisonment, inflated with the object of giving an appearance of severe punishment although it was not expected that this would actually be carried into effect. Section 76(2) 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."

At the same time, s 6(4) of the 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."


Cf Dinsdale v The Queen, supra.

12 In the present case, the Court was not called upon to express a view about the adequacy or otherwise of the sentence of 2-1/2 years. The only issue related to the question whether the sentence should have been

(Page 9)

suspended or not. That sentence was fixed in circumstances where the learned sentencing Judge was clearly aware of the correct maximum penalty. In these circumstances, the omission in the reasons of reference to the correct maximum penalty had no effect upon the outcome of the Crown appeal.

13 In these circumstances, we are of the opinion that s 37 of the Sentencing Act has no application in the present case. The Court of Criminal Appeal did not impose a sentence of 2-1/2 years in a manner which was not in accordance with the Act or the written law under which the offence was committed. There was no occasion to recall the order imposing the sentence. Section 37(3) had no application because the order of the court imposing the sentence did not contain a clerical mistake or an error arising from an accidental slip or omission. What occurred was an error or omission in the reasons for judgment by a failure to refer to s 34(2)(a) of the Misuse of Drugs Act. That can be corrected by the deletion of par [11] of the reasons as originally published and the substitution of the following:

"Section 34(1) of the Misuse of Drugs Act 1981 (WA) provides that:

'Subject to subsection (2), a person who is convicted of -

(a) an indictable offence under section 6(1) or 7(1) is liable to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 25 years or both'.


Section 34(2)(a) provides that:

'A person who is convicted of an indictable offence referred to in subsection (1)(a) -

(a) being an indictable offence -


(i) relating only to cannabis; and

(ii) not relating to cannabis resin or any other cannabis derivative or to any prohibited drug or to a prohibited plant other than cannabis,


is liable, if sentenced by the District Court or the Supreme Court, to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 10 years or both'."

(Page 10)

14 It was contended on behalf of the respondent Smith, and for the purpose of these reasons we are prepared to assume that such submissions were supported by counsel for the respondent Lyon, that before the Court of Criminal Appeal could substitute a different sentence to that imposed by the learned trial Judge, error must be stated and demonstrated. In our opinion, for the reasons originally published, it was appropriate to vary the sentence imposed by setting aside the order for suspension and require the sentence to be served immediately: cf Dinsdale v The Queen, supra, at [62] and [66] per Kirby J; and see Gaudron and Gummow JJ at [24] - [25]. It was also submitted that the learned sentencing Judge:

"… applied the early plea of guilty to the imposition of a suspended rather than an immediate term of imprisonment [AB24E-25A]. The substitution of a suspended sentence would effectively mean that the respondents have received no discount for their early plea of guilty."

15 The relevant passage in the sentencing remarks of the learned Judge followed a reference to Dinsdale v The Queen, supra, by counsel for the respondent Lyon when the learned sentencing Judge then said:

"It is by virtue of the fact of the plea of guilty on the fast-track system and by the merest of margins that the result would come about this way - or perhaps there are two aspects: one is the stalemate sort of situation that one gets into sometimes here in assessing the exact involvement of people in the drug area but the - I am bearing in mind that it was cannabis, I am bearing in mind the quantity of it, in my view it ought to attract a term of 2 and a half years' imprisonment as far as each of them are concerned.

They are both family men, they are both employed, they both have businesses to go back to. In acknowledgement also of the plea of guilty on the fast-track system I propose to suspend that term of imprisonment for a period of 2 years …"

16 In our view it is clear from the above that, in conformity with what is required by the Sentencing Act, the learned Judge first fixed the sentence which would otherwise be imposed taking into account the plea of guilty on the fast-track system and took that plea into account again when deciding to suspend the sentences. There is no substance in the further submissions by the respondent Smith.
(Page 11)

17 For these reasons, we are of the opinion that no step is required to be taken by this Court other than to rectify the omission in the reasons for judgment of the reference to s 34(2)(a) of the Misuse of Drugs Act.