R v WHITING
[2005] SASC 244
•27 June 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v WHITING
Judgment of The Honourable Justice Gray
27 June 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - DISPARITY - CO-OFFENDERS
Application for leave to appeal against sentence of imprisonment imposed by Judge of District Court - applicant sentenced to imprisonment for four years with non-parole period of two years following pleas to offences of taking part in the sale of methylamphetamine and possessing methylamphetamine for sale - applicant sentenced at same time as co-offender who was given a suspended sentence to two years and eight months’ imprisonment with non-parole period of 16 months. Leave sought to appeal on grounds that sentencing Judge had imposed sentence on basis of misapprehension of the facts; that sentence unjustifiably disparate from that imposed upon the co-accused; that sentencing Judge misstated the maximum penalty for the offence; and that sentence imposed was manifestly excessive.
Consideration of test for grant of leave to appeal by single Judge - discussion of principles in respect of parity in sentencing - consideration of High Court authority on importance of the sentencing process proceeding on a correct factual basis.
Leave to appeal granted.
Criminal Law Consolidation Act 1935 (SA) s 353, s 367, referred to.
R v Blick (1999) 108 A Crim R 525; Wakely v Police (2003) 229 LSJS 327; Inge v The Queen (1999) 199 CLR 295; R v Manglesdorf (1995) 66 SASR 60; Johnson v The Queen (2004) 205 ALR 346, applied.
R v WHITING
[2005] SASC 244Criminal
GRAY J:
Introduction
This is an application for leave to appeal against a sentence of imprisonment imposed by a Judge of the District Court.
The applicant pleaded guilty to the offences of taking part in the sale of methylamphetamine and possessing methylamphetamine for sale. On 2 February 2005 the applicant was sentenced to imprisonment for four years. A non-parole period of two years was fixed.
The applicant was sentenced at the same time as his co-offender, David Ian Ronald Kennewell. Mr Kennewell was sentenced to a term of imprisonment of two years and eight months with a non-parole period of 16 months. However, the sentencing Judge exercised his discretion to suspend the sentence of imprisonment.
Circumstances of the offending
On 23 August 2003 the applicant and Mr Kennewell drove to Adelaide Airport. Upon arrival the applicant gave Mr Kennewell a parcel and asked him to arrange for it to be freighted to a person in Alice Springs. Mr Kennewell went to the Australian Air Express and made the necessary arrangements. The contents of the parcel were described as “drill bits”. The parcel was suspicious and the police were called. The parcel was found to contain a section of sealed PVC piping, which was later examined and found to contain 26.7 grams of powder, of which 6.32 grams was methylamphetamine. The applicant and Mr Kennewell were later jointly charged with taking part in the sale of that quantity of methylamphetamine.
In a subsequent search of the applicant’s home, several press-sealed bags containing methylamphetamine, or traces of that drug, were located. One of the bags contained 1.29 grams of methylamphetamine. Two other bags contained 0.03 and 0.07 grams of methylamphetamine. A set of scales bearing traces of methylamphetamine and a pocket diary containing records of names, dollar amounts and quantities were also discovered. The applicant was subsequently charged with the offence of possessing methylamphetamine for sale.
The sentence
In determining an appropriate sentence, the Judge had regard to the applicant’s personal and criminal antecedents. At the time of sentencing, the applicant was 52 years old. He did not have any prior convictions for drug-related offences. The applicant had not served time in prison prior to this offending. His only criminal antecedents were three drink-driving offences.
The sentencing Judge took the view that the applicant was the dominant offender who persuaded Mr Kennewell to assist him. The applicant supplied Mr Kennewell with drugs as payment.
The sentencing Judge applied the principle of totality and imposed a single penalty in relation to the applicant’s offending. The Judge took into account defence counsel’s submissions urging leniency on account of the applicant’s plea of guilty, cooperation with police, commitment to rehabilitation, previous good character and unlikelihood of re-offending. The sentence was reduced from five years to four on account of the pleas. The sentencing Judge was satisfied that he could extend some measure of leniency by fixing a slightly lower non-parole period than would otherwise have been imposed.
The sentencing Judge was unable to conclude that there was good reason to suspend the sentence of imprisonment that he intended to impose. He said that suspension of a sentence for offences of this type would only be justified in rare and exceptional circumstances and that such circumstances did not arise in respect of the applicant.
Leave to appeal
Section 367 of the Criminal Law Consolidation Act 1935 (SA) empowers a single Judge of this Court to grant leave to appeal to the Full Court:
The powers of the Full Court under this Act to give leave to appeal, ... may be exercised by any judge of the Supreme Court in the same manner as they may be exercised by the Full Court, and subject to the same provisions, but, if the judge refuses an application on the part of the appellant to exercise any such power in his favour, the appellant shall be entitled to have the application determined by the Full Court.
The test for granting leave is whether it is at least arguable that the exercise of the sentencing judge’s discretion had miscarried or there could be any real element of injustice to the applicant if leave was refused. A Court comprised of a single Judge hearing an application for leave only has to consider whether the grounds are reasonably arguable. The Judge is not to pre-empt the result of a full appeal. In R v Blick[1] Callaway JA observed:[2]
S582 of the Crimes Act 1958 (Vic) ultimately derives from s17 of the Criminal Appeal Act 1907 (UK). It has counterparts in most of the other Australian States, including two of those which have adopted a criminal code: see s671L of the Criminal Code (Qld), s702 of the Criminal Code (WA) and s367 of the Criminal Law Consolidation Act 1935 (SA) and compare s22 of the Criminal Appeal Act 1912 (NSW). S418 of the Criminal Code (Tas.) does not extend to leave to appeal.
This is the first occasion in Victoria, at least in recent times, when leave to appeal against sentence has first been granted by a single judge and then the appeal has been heard separately. In granting leave to appeal against sentence, Winneke P said:
"On an application of this nature, as I have said before, the question for this court is whether the grounds of appeal ... are reasonably arguable. If one or more of the grounds satisfy that test then, generally, leave should be granted.”
I set out his Honour’s words not only because they will afford guidance to single judges in future cases but also because they emphasise the difference between the role of the single judge considering the application for leave and the role of the court of three hearing the appeal. It would, for example, be quite wrong for a single judge to refuse leave solely because, although there was a reasonably arguable ground, he or she considered that it would probably not be made out when it was fully argued or that the court of three would think that no different sentence should be passed. That would be to pre-empt the appeal and to deny the applicant due process.
[1] (1999) 108 A Crim R 525.
[2] (1999) 108 A Crim R 525 at [17]-[19].
The Court of Criminal Appeal is empowered by section 353 of the Criminal Law Consolidation Act when dealing with appeals on sentence as follows:
(4) Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a) if it thinks that a different sentence should have been passed—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b) in any other case—dismiss the appeal.
(5)The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.
Application for leave to appeal
The application for leave raises the following grounds:
-the sentencing Judge erred in characterising the applicant as the dominant offender and in finding that the applicant “persuaded” the co-offender Kennewell to assist him;
-the sentence imposed upon the applicant was unjustifiably different from the sentence imposed upon the co-accused, namely that the co-accused’s sentence of imprisonment was suspended;
-the sentencing Judge erred in not suspending the term of imprisonment in that he failed to have sufficient regard to the applicant’s age and antecedents;
-the sentencing Judge incorrectly stated that the maximum penalty for the offences was life imprisonment;
-the sentence was (in the circumstances) manifestly excessive.
Misapprehension of Fact
Counsel for the applicant submitted that the conclusions of fact reached by the sentencing Judge in respect of the relationship between the applicant and Mr Kennewell were incorrect. Counsel drew attention to the following passages of the sentencing remarks:
When interviewed by police in relation to this offending, you were to some extent cooperative, albeit you were not entirely frank about the circumstances in which you persuaded Kennewell to accompany you and assist you.
…
You subsequently persuaded Kennewell to assist you by supplying him with drugs as payment.
Then later when the sentencing Judge addressed Mr Kennewell:
It is in this context, as well as in the context of your drug addiction, that you formed a friendship with [the applicant], who was a friend of your brother’s. You were willing to comply with what he wanted in order to maintain the friendship.
…
You accept that your offending was part of an ongoing [course] of conduct rather than an isolated incident. I accept that you did not stand to benefit financially from your part, but were involved in the transactions in order to provide drugs for yourself.
…
I turn then to the question of suspension. For the reasons I have just referred to, and particularly your youth, your antecedents, the fact that you were subject to the influence of an older man and your limited role in the drug dealing enterprise, I am satisfied that good reason exists for me to take the unusual step of suspending your sentence of imprisonment.
Counsel for the applicant also submitted that the sentencing Judge’s findings were inconsistent with what Mr Kennewell himself had told the police. Counsel drew the Court’s attention to a number of passages from the record of the police interview with Mr Kennewell, including the following:
Q. So you, you were helping him, you were couriering –
A. Yeah, I was –
Q. Him.
A.Keeping him in line ‘cos he was actually making himself more broke than actually making money.
Q.All right.
A.Like doing the runs and wasting his money on petrol and all that.
…
Q.Okay. And he was, he was doing – When he was doing these runs, was he doing, like, su-, supplying people then on the runs or was he picking stuff up or-
A.Er he’s just dropping it off.
Q.Okay.
A.And picking up the money.
Q.Yeah.
A.Well organising money and that.
Q.All right. And you were with him when you were doing that.
A.Yeah.
Q.You were aware of that.
A.Most of the times.
Q.So most of the times you-
A.Some-
Q.Were aware of it.
A.Yeah. Sometimes like, get in, go with, on the runs and that-
Q.Mm.
A.But-
Q.So what was different from, on the 23rd of August, what were you thinking you were doing.
A.I was just sending off something for him, like-
Q.But usually-, come on David, usually, usually you know what he was doing so what did you think.
A.Yeah well-
Q.That he was doing.
A.Oh he could have been doing it but why ask.
Q.Could have been.
A.Why ask, get in trouble. Get in trouble doing this anyway.
Q.Well you’re in trouble now.
A.Yeah. Exactly. It’s just- ‘Cos um there was no-one else, I was- He was basically my only friend.
…
Q.Exactly what you know because I’ve got a diary and it’s got a lot of entries with your handwriting in there to say that you were participating-
A. Yeah, I kept him in line-
Q. And that you were-
A. Yes. Like I said, I kept him in line.
Q. Mm. So you-
A.And I told him to up the prices and all that if you must know so that he can keep going and so he can keep doing it ‘cos the way he was going about it was, he was going down hill, he was going in red.
Later during the interview, Mr Kennewell, when questioned about the preparation of the drugs for sale and the act of selling said:
Q. And you, you were-
A. Yeah.
Q. Dealing to people.
A. I was actually making them up and he was selling them.
Q. Okay.
A. Well most of the time.
Q. And how were you cutting all of that up.
A. Just out of a bag with a knife and putting it in bags.
Then later, the financial benefit derived by Mr Kennewell was discussed:
Q. What, what’s – How come your account is in, in the book.
A. Well he put money in my Commonwealth Bank.
Q. Okay.
A. What I done-
Q. What for.
A. That was-
Q. Why did he put money in your Commonwealth.
A. A pay back.
…
A.Well, in a month we, from at the start, in a month, we were getting like 20 grams to 40 odd gram ... and by the end he was getting rid of 60 to 100 grams.
Q. And how, how much sort of money are you making.
A. Oh a grand a month, if that, like all the travelling and that as well.
Q. Mm.
A. Paying for the petrol, food and drinks and all that.
Q. You’re only coming out with, with a grand, but take-
A. Well like, I haven’t worked it but-
Q. Mm.
A. Yeah, roughly. Yeah.
Q. Taking all of that out, out, like living expenses out of the way-
A. Yeah.
Counsel for the applicant submitted that the above passages from the record of interview revealed that Mr Kennewell was fully supporting the applicant in drug dealings. He was not the submissive partner in the enterprise as the sentencing Judge concluded. Mr Kennewell had, contrary to the Judge’s findings, received money as well as drugs. He stood to gain financially. On his own admission, counsel contended, Mr Kennewell was the one who was holding the enterprise together. He was “up to his armpits” in the offending.
Parity
Counsel for the applicant submitted that because the co-accused were equally involved in the offending, the principles of parity should have been applied with the result that both accused should have received the same sentence.
It was said that the proper approach for the sentencing Judge to adopt would have been to treat the co-accused as having a roughly equal role in the offending. It was said that the starting position in respect of sentencing should therefore have been equal sentences for both accused. Counsel acknowledged that the relative youth of Mr Kennewell was a factor that differentiated him from the applicant, but submitted that the principles of parity nonetheless had application.
Doyle CJ discussed the principles in respect of parity in Wakely v Police:[3]
It is important that the punishment imposed on joint offenders should reflect a consistent approach. An unjustified inconsistency or disparity in the penalty imposed on joint offenders will rightly be regarded by the public as unfair and unjust, and will erode public confidence in the judicial process. As well, an unjustified inconsistency or disparity is unfair to the offender who is prejudiced by that inconsistency or disparity.
Different punishments may be imposed on joint offenders. Differences in their involvement in the offence and in their personal circumstances might warrant different punishments. So might the fact or timing of a plea of guilty, the attitude of the respective offenders to the offence and prospects of rehabilitation. But after allowance has been made for all relevant matters, it might still appear that there is an inconsistency or disparity that cannot be explained or justified. Even then the difference in the punishments must be a substantial one, outside the range that is inevitable and acceptable, bearing in mind that sentencing involves balancing a wide range of factors, and that for any given offence and [sic] offender a punishment within a certain range will be appropriate. The most that can ever be done in relation to a particular offence and offender is to identify a range within which the appropriate punishment should fall.
When a court of appeal is confronted by an unjustified or unwarranted disparity between the punishments imposed upon joint offenders, the court is entitled to intervene. If the disparity would engender a justifiable sense of grievance, the court can reduce a sentence that is not, standing alone, inappropriate or excessive: Lowe v The Queen (1984) 154 CLR 606 at 609-610 Gibbs CJ; at 613 Mason J and at 623 Dawson J; Postiglione v The Queen (1997) 189 CLR 295 at 301 Dawson and Gaudron JJ; at 309 McHugh J and at 322-323 Gummow J; MacGowan at 583 King CJ. The court may find it necessary to reduce the sentence in question below what is an appropriate sentence, but such cases will be exceptional; Lowe at 613-614 Mason J and at 623 Dawson J; Postiglione at 341 Kirby J. It may be necessary to leave the sentence stand in the public interest, to avoid compounding the error; MacGowan at 583 King CJ. In dealing with such cases the court exercises a discretion in which considerations of justice to the individual and broader considerations of justice must be balanced; Lowe at 610 Gibbs CJ; MacGowan at 583 King CJ.
[3] (2003) 229 LSJS 327 at [34]-[36].
The considerable age difference between the applicant and Mr Kennewell is a factor that may raise difficult questions. At the time of sentencing, the applicant was 52 years of age and Mr Kennewell was aged 20 years. Sentencing principles clearly stipulate that youth is to be treated as a mitigating factor.[4] However the applicant had been of good character apart from his involvement with drugs.
[4] Inge v The Queen (1999) 199 CLR 295.
The applicant was charged with two offences, taking part in the sale of methylamphetamine and possession of methylamphetamine for sale, whereas Mr Kennewell was only charged with one offence, taking part in the sale of methylamphetamine. This additional charge obviously warranted an increased penalty in respect of the applicant. However, it was said that Mr Kennewell had generally been involved with the applicant for some time with respect to drugs.
Failure to suspend term of imprisonment
Counsel for the applicant submitted that the sentencing Judge erred in failing to exercise his discretion to suspend the term of imprisonment. It was said that the Judge did not have sufficient regard to the applicant’s age and antecedents.
The applicant’s personal antecedents were set out at length in the sentencing remarks. The sentencing Judge recounted what appears to be the entirety of the applicant’s employment history. He also referred to the circumstances of the applicant’s childhood and his schooling. The Judge took into account the fact that the offending occurred in the context of the applicant’s personal drug dependence. He referred to the applicant’s history as a drug-user.
Having regard to the sentencing Judge’s findings that the applicant played the dominant role and persuaded the younger co-offender to participate, and to the circumstances of the offending, the decision not to suspend the sentence was plainly open to the sentencing Judge. However, if the sentencing Judge proceeded under a misapprehension of fact as to the respective roles of the two offenders, the entire sentence should be open for review.
Manifestly excessive
The sentencing Judge described the nature of the offending as follows:
Your offending is very serious. Involvement such as yours in packaging and arranging the delivery of drugs forms an essential part of the drug distribution process, without which trading cannot occur. The fact that it here occurred against a background of such dealing adds substantially to the seriousness of what you have done, because this was not a one-off transaction.
It is not surprising that the Judge viewed the offending as serious. Commercial dealing in prohibited drugs is a serious matter. The offences committed by the applicant are of a kind about which there is considerable community concern.
The approach and remarks of the sentencing Judge are supported by R vManglesdorf,[5] where Doyle CJ observed:[6]
This Court has established standards for the punishment of crimes of the type dealt with by the judges in the cases the subject of the present application. The court has referred time and again to the severe penalties imposed by s 32 of the Controlled Substances Act, in particular to the severe penalties imposed for commercial activity in relation to the drugs dealt with by s 32; and to the evident expectation of Parliament that the courts will impose penalties which will deter people from engaging in commercial activity with respect to these drugs. The court has also made it clear that a suspended sentence will be justified only in truly exceptional circumstances when the offence is one involving, or committed against, a background of involvement in commercial trading or dealing in the drugs dealt with by s 32.
[5] (1995) 66 SASR 60.
[6] (1995) 66 SASR 60 at 63.
The head sentence and the non-parole period imposed were well within the range of punishment for the offences of taking part in the sale of methylamphetamine and possessing methylamphetamine for sale. On the findings of fact made by the sentencing Judge it cannot be said that the sentence imposed was manifestly excessive. However if the Judge has proceeded on a misapprehension of fact, it is appropriate for the Court of Criminal Appeal to review the entire sentence.
Misstatement of Penalty
An examination of the relevant legislation reveals that the determination of precisely what is the correct maximum penalty for the offence of taking part in the sale of methylamphetamine involves a complex question of statutory construction. As there is to be a grant of leave in any event, this question is appropriately left to the Court of Criminal Appeal for determination.
Conclusion
In Johnson v The Queen,[7] the High Court concluded that an intermediate Court of Appeal had made a number of errors of fact when dealing with a sentence appeal. Having identified those errors, Gummow, Callinan and Heydon JJ observed:[8]
It is unfortunate that these errors have been made. The appellant was entitled to have the relevant factual matters carefully and accurately considered by the appellate court.
...
Application of a principle cannot obscure a fact. Facts either lend themselves to the application of a particular principle or not. The error in this regard was compounded by the serious factual misconception in relation to the fact in question, that there were two parcels rather than one.
...
Although the appellant needed leave to appeal to the Court of Criminal Appeal, he was granted that leave and accordingly became entitled to a proper consideration of his appeal, something which he has been denied for the reasons we have given.
[7] (2004) 205 ALR 346.
[8] (2004) 205 ALR 346 at [32], [34]-[35].
The applicant has demonstrated that it is reasonably arguable that the sentencing Judge proceeded under a misapprehension of fact. It is arguable that the applicant’s co-offender received both drugs and money for his involvement in the offending. It is arguable that the co-offenders were equal or near equal participants in the offending and that it was wrong to characterise the applicant as playing the dominant role and as having persuaded his co-offender to be involved.
If the applicant establishes that the sentencing Judge proceeded under a misapprehension of fact, then the Court of Criminal Appeal will need to consider in the light of the established facts, whether the sentence imposed was excessive and whether the Court should re-sentence the applicant.
Leave to appeal is granted.
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