R v Weston
[2000] WASCA 389
•13 DECEMBER 2000
R -v- WESTON [2000] WASCA 389
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 389 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:123/2000 | 25 SEPTEMBER 2000 | |
| Coram: | PIDGEON J WALLWORK J PARKER J | 13/12/00 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | THE QUEEN PAUL DAMIAN WESTON |
Catchwords: | Criminal law and procedure Sentencing Crown Appeal Selling amphetamine Term 2-1/2 years suspended for 2 years Whether term should have been suspended Turns on own facts |
Legislation: | Nil |
Case References: | Dinsdale v The Queen [2000] HCA 54 Lowndes v The Queen (1999) 195 CLR 665 R v Peterson [1984] WAR 329 Evans v The Queen [1999] WASCA 195 Kilner v The Queen [1999] WASCA 189 Leonard v The Queen, unreported; CCA SCt of WA; Library No 990152; 29 March 1999 Lim v The Queen [1999] WASCA 296 Lowndes v The Queen (1999) 195 CLR 665 Nelis v The Queen [2000] WASCA 194 Paparone v The Queen [2000] WASCA 127 R v Bellissimo (1996) 84 A Crim R 465 R v Darwell (1997) 94 A Crim R 35 R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999 R v GP (1997) 18 WAR 196 R v Liddington (1997) 18 WAR 394 R v Votano [2000] WASCA 144 Van De Worp v The Queen [2000] WASCA 154 Watson v The Queen [2000] WASCA 8 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- WESTON [2000] WASCA 389 CORAM : PIDGEON J
- WALLWORK J
PARKER J
- Appellant
AND
PAUL DAMIAN WESTON
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Crown Appeal - Selling amphetamine - Term 2-1/2 years suspended for 2 years - Whether term should have been suspended - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
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Representation:
Counsel:
Appellant : Mr R E Cock QC
Respondent : Mr S W O'Sullivan
Solicitors:
Appellant : Director of Public Prosecutions
Respondent : Alex Palumbo
Case(s) referred to in judgment(s):
Dinsdale v The Queen [2000] HCA 54
Lowndes v The Queen (1999) 195 CLR 665
R v Peterson [1984] WAR 329
Case(s) also cited:
Evans v The Queen [1999] WASCA 195
Kilner v The Queen [1999] WASCA 189
Leonard v The Queen, unreported; CCA SCt of WA; Library No 990152; 29 March 1999
Lim v The Queen [1999] WASCA 296
Nelis v The Queen [2000] WASCA 194
Paparone v The Queen [2000] WASCA 127
R v Bellissimo (1996) 84 A Crim R 465
R v Darwell (1997) 94 A Crim R 35
R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999
R v GP (1997) 18 WAR 196
R v Liddington (1997) 18 WAR 394
R v Votano [2000] WASCA 144
Van De Worp v The Queen [2000] WASCA 154
Watson v The Queen [2000] WASCA 8
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1 PIDGEON J: This is a Crown appeal against a decision to suspend a term of imprisonment imposed on the respondent for offences relating to dealing with amphetamine. On 27 March 2000 the respondent appeared before the Chief Judge of the District Court and pleaded guilty to three counts of selling amphetamine. These offences occurred on 1 December 1997, 3 December 1997 and 9 December 1997. The facts relating to the offences were that in the evening of 1 December 1997 the respondent, at the Broken Hill Tavern in Victoria Park, met an undercover police officer. He sold to the officer 3.37 grams of amphetamine for the sum of $200. Two days later, at the same place, he met the same undercover officer and sold 13.6 grams of an amphetamine bearing powder for the sum of $800. Six days later, on 9 December 1997 the respondent sold to the same officer a total amount of 24.8 grams for the sum of $5,000. On 10 December officers conducted a search of the appellant's residence in Armadale. There was found in his bedroom $6,500 in cash. $5,000 of this was the marked money he had received in respect of the final sale. There was also found a set of scales and a mobile phone which had been used to arrange the meetings. The money and the scales were forfeited.
2 The respondent at the time was 31 years of age. In 1989 he was convicted of armed robbery and breaking into a dwelling house for which he received a substantial sentence. There was a minor offence in 1991 of being disorderly. Apart from traffic offences, there has been no offending since then.
3 There was in evidence video tapes of the searches conducted on the accused's premises and a search of his motor vehicle. There was also a video record of interview. The Chief Judge, in brief sentencing remarks, outlined the offences. His Honour then made the following comments in respect of the sentence and in particular why he was suspending it:
"It is possible to draw different inferences from the conversation upon the transcript. I might add that I have also viewed the video in full. It is noted that there were three sales of varying amounts in the same hotel or carpark. The transcripts are significant but in this instance there does appear to be some psychiatric and psychological backing for the submissions which have been made by Mr O'Sullivan.
It's noted in the report of Dr Alan Wood that there are no psychiatric factors that relate directly to the offending as a psychiatric illness developed after the offence. The suggestion
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- that some psychiatric disturbance might have occurred as a result of the TRG raid is one that is noted but not perhaps one that would generate any great sympathy for the accused or the offender as he is. This is a complex sentencing issue.
I note in the offender's favour that he has - firstly he has got no comfort in criticising the role of the undercover officer, that is really not put forward by Mr O'Sullivan who, like I, is aware of the law in this state. His prior record is relatively minor. There are no records for previously selling drugs - his prior record in the past 10 years is minor, I can't go back beyond that - and on balance there appears to be some support for the propositions which have been made.
He does deserve and will receive a term of imprisonment but by the merest of margins I propose to suspend that."
4 The total effective term imposed was two an a half years and it was suspended for a period of two years.
5 The conclusion open on the objective facts outlined to date is that the respondent is a drug dealer who, for profit, made amphetamine available for distribution to users. There have been numerous decisions of this Court to say that the organised distribution of drugs of this type must call for an immediate and substantial term of imprisonment. Deterrence is the primary factor, and personal matters play a small part. Sentencing Judges often comment on the fact that the explanation for many serious offences that come before them is that the offender has been affected by amphetamine and similar narcotics. Those responsible for the distribution must expect condign punishment. Only in the most exceptional circumstances could there by another type of disposition. It could be argued that his Honour's sentencing remarks do not disclose such circumstances and it might also be argued that an error is disclosed on the basis that the remarks, by themselves, indicate that in normal circumstances suspension must always be considered in respect of drug trafficking as serious as that disclosed. His Honour recognised that no mitigation would arise from the fact that undercover officers were involved. Drug trafficking is very difficult to detect and properly conducted infiltration is a legitimate method to find the offenders.
6 Although the remarks themselves do not disclose any apparent reason for taking an exceptional course, an examination of what occurred prior to sentencing shows a different picture. They show that the Chief
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- Judge gave very careful consideration to a complex set of circumstances. The respondent pleaded guilty before his Honour on 27 March 2000. His Honour was told that the respondent had joined a bikie gang in the Eastern States as a probationary member five months or so prior to the sales. He came into contact with what appeared to him to be two very senior members. They were both undercover officers. The respondent came to Perth and was telephoned by one of the undercover officers who requested the respondent to provide amphetamine to the brother of one of the officers.
7 Following his arrest he left the club and broke association with its members. He returned to live with his family. As a result of what occurred and particularly of the raid on his house, he developed psychological problems. The hearing was adjourned as it had been arranged for a more senior counsel to appear on his behalf. He was remanded in custody and the adjourned hearing resumed on 18 April 2000. The respondent's counsel submitted that the respondent was leading a lonely life and joined the group as he desperately wished company. This tempted him into the gang and when in the gang, would have difficulty in handling requests of this type when made by senior members. It was claimed that there was a personality deficiency on this account. It was submitted that this might be a ground for his Honour to consider taking an unusual course. His Honour requested a submission from Crown counsel who, at that stage, put the submission no higher than imprisonment would be an option and his remarks suggested it might not be the only option. This caused some concern with his Honour. His Honour's remarks made from time to time indicated that he was very conscious that imprisonment was the only option for offending of this type. On that day his Honour adjourned the matter to obtain psychological reports and the respondent was again remanded in custody.
8 The matter was resumed on 23 May 2000 when the reports were available and this was the day the respondent was ultimately sentenced. He had, up until that time, been in custody for 58 days. The psychiatric report confirmed that, at the time he became a member of the group, he was an outsider who wished to belong. The respondent's counsel submitted that the video tape showed that the course the respondent was on was divorced from reality and was acting out of bravado. His Honour indicated that during the period of the adjournments he watched both the video tape and read the transcript. His Honour referred to aspects of the video tape which were causing concern and he discussed these with counsel. It was submitted that his drug dealing was limited to what he was requested to do and his lack of assets was inconsistent with other drug
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- dealing. The $5,000 was still in his possession and he had to pay the person from whom he obtained it. His Honour was again addressed on the psychological problems that followed. A different counsel appeared for the Crown. Counsel for the Crown submitted that a significant term of imprisonment was called for and added, "I know the Crown did not say that as strongly as I do today but that is the Crown's position today." The submission on behalf of the respondent was a plea for the suspended term.
9 The respondent appeared before a very experienced sentencing Judge. His Honour had before him, not only the submissions, but the transcripts of the videos to which I have referred and to which he paid very careful attention. Many of the factors referred to his Honour were not mitigation. It would not be mitigation to carry out offending as serious as this by reason of the fact that one has joined a gang carrying out criminal activity and in order to impress people in the gang. There are indications that the nature of the sales and the subsequent searching of the house not only brought the respondent back to reality, but caused him to leave the gang and reorganise his life. For my part I would have some doubt as to whether the sentence should have been suspended. However, his Honour, after giving very close attention to all the material, including the interviews and what was on the tapes, reached the view "by the merest of margins" that it should be suspended. My view, in the end is, that I am not persuaded that his Honour was in error.
10 The final ground is his Honour did not identify a basis for suspending the term. This is not set out in the sentencing remarks, but they were made immediately after his receiving detailed submissions as to why the sentence should be suspended. It is very important to remember his Honour is speaking to the prisoner and is not speaking to appeal courts. It is often of greater benefit, in circumstances such as this, to address short remarks directly to the offender, particularly if some leniency is being shown.
11 For these reasons I would dismiss the appeal.
12 WALLWORK J: I agree with the reasons for judgment of Pidgeon J. In my view there was no error by the learned sentencing Judge and I too would dismiss the appeal.
13 PARKER J: I have had the benefit of reading in draft the reasons now published by Pidgeon J in which the facts relevant to sentencing, the nature of this offender and his antecedents, and the approach taken by the
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- sentencing Judge are set out sufficiently for present purposes. I will not repeat them.
14 By s 76 of the Sentencing Act 1995 Parliament has provided that a Judge, who imposes a sentence of imprisonment of 5 years or less, has a discretion to suspend that sentence for a period to be set by the Judge but not exceeding 2 years. This was a case to which that provision applied. It is the effect of the Sentencing Act that in such a case the Judge must consider whether the sentence should be suspended.
15 The approach which this Court should take to an appeal against a sentence has been long settled. I need not set out in full the principles which are to be applied. It is enough to note the following well known passage from R v Peterson [1984] WAR 329 at 330:
"An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself maybe so excessive or inadequate as to manifest such error …"
16 And further, as was said in Lowndes v The Queen (1999) 195 CLR 665 at 671-672:
" … a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. This is basic; House v The King (1936) 55 CLR 499. The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice."
17 This is not a case in which it is suggested that the sentencing Judge misunderstood the relevant principles or made some error on a material matter of fact. The issue is whether the exercise of the sentencing discretion may be seen to have miscarried by virtue of the manifest inadequacy of the sentence.
18 As Pidgeon J has identified in his reasons there were circumstances which were stressed to the sentencing Judge in this case which were in
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- law capable, in combination, of being accepted by his Honour as sufficient to justify what he recognised to be the very unusual course, for a case of this nature, of an order suspending the sentence. With respect to the matters relevant to the decision whether a sentence should be suspended see Dinsdale v The Queen [2000] HCA 54 at [78]-[79] per Kirby J, Gaudron and Gummow JJ concurring at [26].
19 As the authorities stress, the discretion to suspend is primarily that of the sentencing Judge. The question is not whether the judges who sit on appeal would have necessarily taken the same course, but whether the course which the sentencing Judge was persuaded to take was properly open to him in all the circumstances.
20 It is apparent that his Honour gave his usual very careful consideration to the case and was impressed by some most unusual circumstances, for a case of this type, which it presented. I am unable to conclude that a decision to suspend the sentence was not open to his Honour in the proper exercise of sentencing discretion.
21 I am therefore in agreement with Pidgeon J that the appeal should be dismissed.
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