R v Reppucci

[2003] WASCA 260

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   COURT OF CRIMINAL APPEAL

CITATION:   R -v- REPPUCCI [2003] WASCA 260

CORAM:   MURRAY ACJ

MCKECHNIE J
HASLUCK J

HEARD:   1 SEPTEMBER 2003

DELIVERED          :   5 NOVEMBER 2003

FILE NO/S:   CCA 44 of 2003

BETWEEN:   THE QUEEN

Appellant

AND

ANTONIO REPPUCCI
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Delay in prosecution - Whether sentence manifestly inadequate - No new principles

Legislation:

Nil

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr R E Cock QC & Ms S E Wisbey

Respondent:     Mr G F Edwards

Solicitors:

Appellant:     State Director of Public Prosecutions

Respondent:     Gerard Edwards

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

Bell v The Queen [2001] WASCA 40

Bellissimo (1996) 84 A Crim R 465

Mill v The Queen (1988) 166 CLR 59

R v Todd (1982) 2 NSWLR 517

Case(s) also cited:

Nil

1. MURRAY ACJ:  I agree with McKechnie J, for the reasons given by his Honour, that this appeal should be dismissed.

2. MCKECHNIE J:  On 12 March 2003, following conviction after trial, for one count of supplying a quantity of amphetamine to another, the respondent was sentenced to a term of 3 years imprisonment, with parole eligibility, cumulative on any sentence then being served.  The quantity of amphetamine involved was about 900 grams with a purity of approximately 3 to 3‑1/2 per cent.

3. From that sentence the Crown appeals on the following grounds:

   "1.The learned trial Judge erred in finding that the Respondent had begun rehabilitating himself in 1996.

   2.The learned trial Judge erred in placing too much weight on the delay in prosecuting the Respondent.

   3.The learned trial Judge erred in placing insufficient weight on the fact that the Respondent committed the offence whilst on work release.

   4.The learned trial Judge erred in imposing a sentence that was manifestly inadequate having particular regard to the following:

   a)the amount of amphetamine involved;

   b)the fact that the offence was committed 20 days after the Respondent had been released on work release in relation to a term of imprisonment of 7 years imposed for an offence of supplying 1 kg of methylamphetamine to another;

   c)the sentence imposed on Mark Drew; and

   d)the Respondent's antecedents."

Delay

1. Ground 1 asserts an error of fact.  What the Judge said about rehabilitation was as follows:

   "Even with a plea of not guilty, had you been charged within a reasonable time, this matter would have been disposed of by 1998, it seems to me.  In the meantime, you have completely

rehabilitated yourself and I am prepared to find that the beginning of that process was in 1996."

1. This ground is, to a degree, bound up with the second ground.  The Judge specifically took account of delays, pointing out that it took the police 3‑1/2 years to issue a complaint, notwithstanding that they had known the respondent's role in the offence since 1996.  There were further delays in the court, in part relating to another person charged with the offence, and it was not until March 2003 that the matter came on for trial.  It was open for the Judge to find that the respondent had completely rehabilitated himself in the period.  Whether or not she was correct in finding the beginning of that process was in 1996 seems of little moment.  The important issue for present purposes was the rehabilitation.  The principles are summarised by Anderson J in Bell v The Queen [2001] WASCA 40 at [5] to [10]; see also Street CJ in R v Todd (1982) 2 NSWLR 517 at 519 ‑520, cited with approval in Mill v The Queen (1988) 166 CLR 59 at 66.

2. The applicant accepts that the respondent was entitled to a discount of sentence for the fact that he had not re‑offended since 22 February 1996, although it argues that during this period he was subject to supervision.  Once there is an acceptance of an entitlement to a discount, then the extent to which a sentence might be affected by the question of rehabilitation is very much one for the Judge.  I am unable to find that the trial Judge's discretion miscarried in relation to ground 2, even if there was an error of fact as asserted in ground 1.

Work release

1. Her Honour specifically adverted to the fact this offence had been committed on work release by saying:

   "This is a very serious matter and made more serious by the fact that you were on work release at the time.  However, these factors have to be factored in somehow or other.  Now, there is no mathematical formula in relation to factoring these matters in and everybody may look at it, a variety of people may look at it differently."

2. This passage reveals the Judge was well aware of the aggravating circumstances and took it into account in the general mix of factors to arrive at what she regarded was an appropriate sentence.

Manifest inadequacy

1. It may be accepted that the primary consideration for sentencing of offences for the sale or supply of amphetamine is general deterrence: Bellissimo (1996) 84 A Crim R 465.

2. The Crown draws strength from the fact that the co‑offender, whose criminality was comparable, was sentenced to 4 years imprisonment, reduced from an indicative starting point of 6 years, on account of a fast‑track plea of guilty.  The Judge made no particular finding as to parity with the co‑offenders.  She made the point that it was impossible to work out why the respondent was needed in the operation before concluding:

   "Nevertheless, you were involved.  You were helping Monaghan in some way.  You knew what Monaghan was going to do … and you were to get a reward for what you did."

3. Through counsel the respondent argues that his role was significantly less than that of the co‑offender.  There is insufficient material available to us to resolve this issue but it is unnecessary to do so.  The Judge said:

   "As long as they look at it fairly, if they look at it differently from me, so be it.  But I have adjusted the sentence as best I can to take account of the delay, the unfair impact on your life and the fact that there is no need for rehabilitation or specific deterrence and in the circumstances you are sentenced to 3 years' gaol.  You are entitled to parole on that.  That is cumulative on any sentence you are now serving."

4. While the sentence might be regarded as unusual, especially in the light of the sentence imposed on the co‑offender, sentencing is always an exercise in judicial discretion involving the weighing of many factors.  It is, by nature, imprecise because a sentence must, in the end, be tailored to particular offenders.  Because of the imprecision, reasonable Judges may often come to different conclusions as to the appropriate sentence in a particular case.  In order for an appeal to succeed more most be established.  In the case of Crown appeals, special considerations also apply.  I am not persuaded that, in all of the particular circumstances, this sentence was so manifestly inadequate as to indicate error.

5. I would dismiss the appeal. 

1. HASLUCK J:  I am in agreement with the reasons of McKechnie J and would dismiss the appeal.