Samuels v The State of Western Australia
[2005] WASCA 193
•7 OCTOBER 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SAMUELS -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 193
CORAM: STEYTLER P
WHEELER JA
ROBERTS-SMITH JA
HEARD: 4 AUGUST 2005
DELIVERED : 7 OCTOBER 2005
FILE NO/S: CACR 74 of 2005
BETWEEN: RICHARD LEE SAMUELS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :FENBURY DCJ
File No :IND 1323 of 2002
Catchwords:
Appeal - Criminal law - Application for leave to appeal - Section 27(2) Criminal Appeals Act 2004 (WA) - Court must refuse leave unless ground has reasonable prospect of succeeding - Meaning of "reasonable prospect of succeeding" - Test to be applied
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 18, s 27(1), s 27(2)
Result:
Leave to appeal refused on grounds 2 and 3
Leave to appeal granted on grounds 1 and 4
Category: A
Representation:
Counsel:
Appellant: Mr D Grace QC
Respondent: Mr B Fiannaca
Solicitors:
Appellant: Amidzic & Associates
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Bailey v Director of Public Prosecutions (1988) 62 ALJR 319
Barnes v The State of Western Australia [2004] WASCA 258
Brayley v Malkovic [2005] WASC 136
Burton v The President, &c, of the Shire of Bairnsdale (1908) 7 CLR 76
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Coulter v The Queen (1988) 164 CLR 350
Daniele v Weissenberger (2002) 136 A Crim R 390
de Groot v Nominal Defendant [2004] NSWCA 88
Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284
Dempster v National Companies and Securities Commission (1993) 9 WAR 215
Duncan v The Queen (1983) 47 ALR 746
Eastway Construction Corporation v City of New York (1985) 762 F 2d 243
Federico's Restaurant Pty Ltd v Warwick Entertainment Centre Pty Ltd (1995) 18 ACSR 702
Gooch & Pierce v The Queen [2002] NTCCA 3
Johnson v The Queen (2004) 78 ALJR 616
King v City of Fremantle [2004] WASCA 212
Kirby v The Queen [2003] WASCA 239
Lemoto v Able Technical Pty Ltd [2005] NSWCA 153
Medcalf v Mardell [2003] 1 AC 120
Mnyirrinna v McIntosh [2003] WASCA 305
Nolan v Clifford (1904) 1 CLR 429
Pearce v The Queen (1998) 194 CLR 610
Peruvian Guano Company v Bockwoldt [1883] 23 Ch D 225
Phosphate Co‑operative Company of Australia Ltd v Environment Protection Authority (1977) 138 CLR 134
R v Bellissimo (1996) 84 A Crim R 465
R v Blick (1999) 108 A Crim R 525
R v Darwell (1997) 94 A Crim R 35
R v Lavender [2005] HCA 37
R v Marker (2002) 135 A Crim R 55
R v McDonald (1992) 85 NTR 1
Re Matthews; Ex parte Mackenzie [2000] WASC 147
Roddan v Walker (1996) 17 WAR 277
Saraswati v The Queen (1991) 172 CLR 1
Savage v Teck Explorations Ltd, unreported; FCt SCt of WA; Library No 7285; 16 September 1988
Sinagra‑Brisca v The Queen [2004] WASCA 68
Stapleton v The Queen [2004] WASCA 130
Wearne v Roberts (2001) 117 LGERA 127
Wood v Marsh (2003) 139 A Crim R 475
Young v Holloway [1895] P 87
Case(s) also cited:
Collins v The Queen (1975) 133 CLR 120
Johnson v The Queen [2004] WASCA 207
McDonald v The Queen (1992) 85 NTR 1
R v Broadway [1957] VR 398
R v Matovski (1989) 15 NSWLR 720
Tulloh v The Queen [2004] WASCA 169
JUDGMENT OF THE COURT: On 2 May 2005 a raft of legislative amendments making significant changes to civil and criminal appellate procedures came into operation in Western Australia. One of those was the Criminal Appeals Act 2004 (WA) ("the CA Act"). That Act stipulated that henceforth leave would be required for each ground of appeal in any criminal appeal. It posed a new test for determining whether or not leave would be granted, that being whether the ground has "a reasonable prospect of succeeding".
Although applications for leave to appeal to this Court can, and routinely will, be dealt with by a single Judge and can be dealt with on the papers, it was thought desirable to have a decision of three Judges of the Court on the meaning and proper application of the "reasonable prospect of succeeding" test. The present case was listed before this Court for that purpose.
The legislative background
The Court of Appeal Division of the Supreme Court of Western Australia ("the Court of Appeal") came into existence on 1 February 2005, by virtue of s 5 of the Acts Amendment (Court of Appeal) Act 2004 (WA).
Prior to that date, criminal appeals from the trial jurisdiction of the Supreme and District Courts were heard by a coram of an uneven number of three or more Judges from the Supreme Court sitting as the Court of Criminal Appeal (s 687 of the Criminal Code (WA)). From 1 February 2005, such appeals were to be heard before the Court of Appeal.
Before 2 May 2005, criminal appeals from the Supreme or District Courts were made pursuant to s 688 of the Criminal Code. Criminal appeals from Courts of Petty Sessions were heard before a single Judge of the Supreme Court under s 189 of the Justices Act 1902 (WA).
By s 688(1) of the Criminal Code a person convicted on indictment had an appeal against conviction as of right on any ground which involved a question of law alone. Leave to appeal was otherwise required for an appeal against conviction or sentence. There was no statutory test for leave to appeal.
Prior to May 2005, appeals from Courts of Petty Sessions to a single Judge of the Supreme Court lay only by leave pursuant to s 184 of the Justices Act 1902. The test for a grant or refusal of leave was prescribed by s 187(1), which stated:
"The Judge shall grant leave to appeal unless he considers that the appeal is frivolous or vexatious or that the grounds of appeal advanced do not disclose an arguable case".
In its final report on Project 92 "Review of the Criminal and Civil Justice System in Western Australia" (1999) the Law Reform Commission of Western Australia wrote (at 273) that:
"Appeals generate a major workload for courts at all levels and can significantly extend the time and cost of obtaining a final resolution to a case. Restriction of the right of appeal may simplify litigation and reduce costs, but any reform must also be consistent with the maintenance of a fair and equitable judicial system".
The Commission criticised the leave requirement in the Justices Act as being ineffective, suggesting (at 288 ‑ 289) that:
"if the purpose of a leave requirement is to weed out hopeless applications, it currently does not appear to serve that purpose".
The first point to note about that test is that a grant of leave is presumptive - that is to say, leave must be granted unless the Judge considers the appeal to be frivolous or vexatious, or that the grounds of appeal do not disclose an arguable case.
An action is frivolous if it is obviously unsustainable and an abuse of the process of the court (Young v Holloway [1895] P 87 at 90). An action may for the same reason be characterised as vexatious (Peruvian Guano Company v Bockwoldt [1883] 23 Ch D 225 at 230). The expression has been taken to comprehend "a claim that is so obviously untenable that it cannot possibly succeed" (Burton v The President, &c, of the Shire of Bairnsdale (1908) 7 CLR 76 at 92) and one in which there is no serious question to be tried (Federico's Restaurant Pty Ltd v Warwick Entertainment Centre Pty Ltd (1995) 18 ACSR 702 at 706). In Mnyirrinna v McIntosh [2003] WASCA 305, Barker J held that "vexatious" in the context of s 187(1) included a ground which depended on an untenable or groundless factual allegation.
Somewhat different approaches were taken to the notion of "arguable case" depending upon whether the test was being applied in a civil context (for example prerogative relief under O 56 Rules of the Supreme Court 1971 (WA)) or a criminal context (as under s 187(1)). In Savage v Teck Explorations Ltd, unreported; FCt SCt of WA; Library No 7285; 16 September 1988, Malcolm CJ said in respect of the former:
"On the application for the order nisi the Judge hearing the application has an opportunity to assist the Full Court by making a preliminary examination of the formulation of the grounds and, where necessary, limiting their scope or permitting amendment so that the matter may proceed to the Full Court on a proper basis".
In Re Matthews; Ex parte Mackenzie [2000] WASC 147 at [13], Templeman J contrasted that with the appeal procedure under the Justices Act, which he said "… is in the nature of a preliminary hearing by one Judge, who is required to form a view about the prospects of the appellant succeeding before another Judge of equal standing".
The notion of an "arguable case" was explained by Malcolm CJ (with whom Walsh and Anderson JJ agreed) in Dempster v National Companies and Securities Commission (1993) 9 WAR 215. That case concerned an application for leave to appeal against an order for committal. Malcolm CJ was of the view that, in the absence of special circumstances, an appeal against an order for committal should be dismissed under s 199(1) of the Justices Act if there has been no miscarriage of justice (at 261). His Honour continued (at 261):
"It follows that, in the absence of an arguable case that there are special circumstances justifying the intervention of the Supreme Court by way of appeal, an application for leave to appeal against an order for committal should be refused as disclosing no arguable case unless it can be demonstrated that there is a substantial risk of a miscarriage of justice unless leave is granted. In some cases, the circumstances may be so devoid of merit that the appeal should be dismissed as frivolous or vexatious.
It was contended on behalf of the appellant that the expression 'arguable case' in s 187(1) meant 'capable of being arguable': see The Shorter Oxford Dictionary. In my opinion, having regard to the context, an arguable case is one that is not merely capable of being argued, but one that is reasonably capable of being argued in the sense that it has an argument which has some prospect of success. In this context, 'arguable case' necessarily has the same meaning as 'reasonable case', as the expression is used in O 20, r 19 of the Rules of the Supreme Court 1971. The case must be one which has 'some' chance of success: see Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489 at 495. This will not be so in the absence of exceptional circumstances."
Other cases in which Dempster was subsequently applied include Wood v Marsh (2003) 139 A Crim R 475, in which (at [37]) the need for an action to have some prospect of success before it could be called arguable was emphasised; Daniele v Weissenberger (2002) 136 A Crim R 390, in which Pullin J (at [3]) re‑iterated that an arguable case is not one "merely capable of being argued"; Mnyirrinna v MacIntosh (supra), in which Barker J (at [76]) pointed out that "arguable case" necessarily has the same meaning as "reasonable case"; and King v City of Fremantle [2004] WASCA 212 per Barker J at [25].
In Wearne v Roberts (2001) 117 LGERA 127 at 131, Hasluck J took the test to be that upon the grounds of appeal advanced, the case is one which has no real prospect of success, citing Roddan v Walker (1996) 17 WAR 277 at 280. That was a reference to the following passage from the judgment of Murray J:
"Whilst it may be accepted that the grounds upon which the judge may refuse leave to appeal under s 187(1) must be clearly demonstrated, that will be done if it is established that upon the grounds of appeal advanced the case is one which has no real prospect of success, rather than there being a need to establish that the points at issue are not capable of being argued at all, and for that reason may be regarded as frivolous or vexatious and an abuse of the process of the court: see Dempster v National Companies and Securities Commission (1993) 9 WAR 215 at 262 …".
Some pertinent legislative changes
From the coming into existence of the Court of Appeal on 1 February 2005, all appeals previously to the Full Court or the Court of Criminal Appeal were to be made to the Court of Appeal (s 38 Acts Amendment (Court of Appeal) Act 2004) and all appeals or applications for leave to appeal pending before the Full Court or the Court of Criminal Appeal were to be taken to have been commenced or made and pending before the Court of Appeal (s 38 ibid). However, those amendments did not alter the position with respect to rights of appeal or any requirements for leave, nor the procedures which applied to appeals or applications for leave to appeal from single Judges of the Supreme or District Courts. Those changes occurred in May 2005.
Amongst the many legislative changes which came into effect on 2 May 2005, were those contained in the CA Act and the Supreme Court (Court of Appeal) Rules 2005 ("the Court of Appeal Rules").
The CA Act provides, inter alia, for appeals to a single Judge of the Supreme Court from courts of summary jurisdiction (and thence from a single Judge to the Court of Appeal) and appeals from Supreme and District Courts to the Court of Appeal.
Under the Justices Act 1902, courts of summary jurisdiction were called "Courts of Petty Sessions".
On 1 May 2005, s 4(1) of the Magistrates Court Act 2004 (WA) (No 47 of 2004), established a court to be called "the Magistrates Court of Western Australia" ("the Magistrates Court").
Also on 1 May 2005, the name of the Justices Act 1902 was changed to the Criminal Procedure (Summary) Act 1902. That occurred by virtue of the Courts Legislation Amendment and Repeal Act 2004 (No 59 of 2004), s 23.
Those parts of the Criminal Procedure (Summary) Act 1902 that dealt with the Court of Petty Sessions (Pts II and III) were repealed by the Courts Legislation Amendment and Repeal Act 2004 on 1 May 2005, the same day that the Magistrates Court came into existence. Thereafter, by s 58 of the Courts Legislation Amendment and Repeal Act, references to "Court of Petty Sessions" are to be read as references to the "Magistrates Court".
The remainder of the Criminal Procedure (Summary) Act 1902 was repealed on 2 May 2005 by virtue of s 4 of the Criminal Procedure & Appeals (Consequential & Other Provisions) Act 2004 (No 84 of 2004).
The new statutory test
Leave is now required to appeal against either conviction or sentence from a Magistrate's Court to a single Judge of the Supreme Court (s 9 CA Act), from a decision of a single Judge on such an appeal, to the Court of Appeal (s 18 CA Act), or from the Supreme or District Courts (s 27(1) CA Act) to the Court of Appeal.
The statutory test is the same in each instance: ss 9 and 27 of the CA Act. Section 27 provides, so far as the Court of Appeal is concerned, that:
"(1) The leave of the Court of Appeal is required for each ground of appeal in an appeal under this Part.
(2)After an appeal is commenced, the Court of Appeal must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding.
(3)Unless the Court of Appeal gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.
(4)The Court of Appeal may decide whether or not to give leave to appeal -
(a)with or without written or oral submissions from the parties to the appeal;
(b)before or at the hearing of, or when giving judgment on, the appeal."
To give this some practical context, it is apposite to note that a single Judge of the Court of Appeal may exercise the power of the Court of Appeal to grant or refuse leave to appeal, whether on the papers or upon hearing oral submissions (r 7 and r 43(2)(b) and (c) CA Rules and s 61(1) of the Supreme Court Act 1935 (WA)). It may be noted in passing that in Coulter v The Queen (1988) 164 CLR 350, Mason CJ, Wilson and Brennan JJ pointed out (at 356 ‑ 357) that an application for leave to appeal is not in the ordinary course of litigation and a rule which authorises a court to deal with applications for leave without an oral hearing is not ultra vires for altering the nature of the court.
As a matter of practice, where a single Judge of appeal is contemplating refusing leave to appeal on a ground the application will ordinarily be listed for hearing (usually ex parte) before the single Judge.
It should also be noted that the powers of a single Judge under r 43(2) include striking out any ground of appeal that does not have any prospect of succeeding (r 43(2)(f)) and dismissing an appeal if none of the grounds has a reasonable prospect of succeeding or the appellant has not obeyed the CA Rules or any order made under them (r 43(2)(g)).
A person who is dissatisfied with the decision of a single Judge in a Court of Appeal matter (including a refusal of leave to appeal) may apply to the Court of Appeal within five days to set aside or vary the decision (r 8 CA Rules). If such an application is made, it is dealt with as if the application were an appeal (r 9 CA Rules).
There is nothing in the Explanatory Memorandum nor the Second Reading Speech concerning the test for leave to appeal under the CA Act.
The only express judicial consideration of it to date has been by Simmonds J in Brayley v Malkovic [2005] WASC 136. His Honour said, at [45], that the test provided for by s 27(2) of the CA Act required him:
"… to consider whether … [he had] been satisfied, on the necessarily cursory review available to a judge in this setting, that it is possible for … [him] to see a court upholding the relevant ground."
He went on to say that it seemed to him that it was "a different matter from whether, notwithstanding the success on the relevant ground, the appeal should be successful". His Honour also noted, at [46], the provisions of s 15(2) of the Criminal Appeals Act, which had a counterpart in s 199(1)(b) of the Justices Act, and which are to the effect that the Court may dismiss an appeal if it is satisfied "no substantial miscarriage of justice has occurred", even if the appellant was successful on a ground of appeal. We shall return to this issue later.
The critical starting‑point, in considering the test, must necessarily be the words of the statutory provision itself (Nolan v Clifford (1904) 1 CLR 429 per O'Connor J at 453; Phosphate Co‑operative Company of Australia Ltd v Environment Protection Authority (1977) 138 CLR 134). Those words are to be considered from the outset, in the context in which they appear. As the High Court pointed out in R v Lavender [2005] HCA 37 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [33], the meaning of a statutory provision is influenced powerfully by context. "Context" here is used in its widest sense, to include such things as the existing state of the law and the mischief which the statute was intended to remedy. It was explained this way by Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408:
"It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure [Black‑Clawson International Ltd v Papierwerke Waldhof‑Aschaffenburg Aktiengesellschaft [1975] AC 591 at 614, 629, 638; Wacando v The Commonwealth (1981) 148 CLR 1 at 25‑26; Pepper v Hart [1993] AC 593 at 630]. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy [Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461, cited in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, 315]. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent [Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320‑321]."
In Saraswati v The Queen (1991) 172 CLR 1 the High Court made it clear that statutory "context" includes the history and purpose of the legislation under consideration. Dealing with the proper approach to statutory construction reflected in s 33 of the Interpretation Act 1987 (NSW) (which was in similar terms to s 18 of the Interpretation Act 1984 (WA)), McHugh J said (at 21):
"Section 33 of the Interpretation Act directs a court in interpreting a provision in an Act to give preference to a construction 'that would promote the purpose or object underlying the Act' over a construction 'that would not promote that purpose or object': cf Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, at pp 261‑262. Moreover, the terms of s 34 of that Act, which provides for the use of extrinsic material, make it plain that 'the ordinary meaning conveyed by the text of the provision' is the meaning conveyed by that provision after 'taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule'. Hence, it is always necessary in determining 'the ordinary meaning' of a provision such as s 61E(2) to have regard to the purpose of the legislation and the context of the provision as well as the literal meaning of the provision. Sometimes the purpose of the legislation is expressly stated; sometimes it can be discerned only by inference after an examination of the legislation as a whole; and sometimes it can be discerned only by reference to the history of the legislation and the state of the law when it was enacted. It need hardly be said that a particular Act may have many purposes.
In many cases, the grammatical or literal meaning of a statutory provision will give effect to the purpose of the legislation. Consequently, it will constitute the 'ordinary meaning' to be applied. If, however, the literal or grammatical meaning of a provision does not give effect to that purpose, that meaning cannot be regarded as 'the ordinary meaning' and cannot prevail. It must give way to the construction which will promote the underlying purpose or object of an Act: Interpretation Act, s 33. …"
The package of legislative changes of which the CA Act was part, was intended to be a significant departure from the previous legislative framework. The CA Act owes its origins to the recommendations of the Law Reform Commission's report (Western Australian Parliamentary Debates, Second Reading Speech of Attorney General J A McGinty, Legislative Assembly, Thursday 26 August 2004, p 5726). The legislation is not a consolidation of pre‑existing legislation.
It was common ground before us that the Western Australian Parliament intended, by the enactment of the requirement for leave to appeal provisions in the CA Act, to promote the aim of controlling the workload of the Court. That is apparent also from other provisions in the legislation allowing for alternate procedures to facilitate the resolution of the work of the Court, such as those dealing with applications for leave in the absence of oral or written submissions. The Second Reading Speech and the Parliamentary debates relating to the Criminal Appeals Bill 2004 refer repeatedly to the need for efficiency in the resolution of appeals (see Western Australian Parliamentary Debates, Legislative Assembly, 26 August 2004 per the Hon J A McGinty at 5726 ‑ 5727; Western Australian Parliamentary Debates, Legislative Council, 16 November 2004, at 8148 ‑ 8150, discussions of the Criminal Appeals Bill 2004 Committee; Law Reform Commission Report 92, Chapter 32 - Appeals, pp 273 ‑ 290). Notwithstanding the necessity of considering the merits of each ground of appeal, the role of a single Judge dealing with an application for leave to appeal is to be distinguished from that of three Judges dealing with an appeal proper. For the former, the test is not whether a ground would, or should succeed, but whether it has a reasonable prospect of succeeding. Thus, it would be quite wrong for a single Judge to refuse leave to appeal because, although on the particular grounds there was a reasonable prospect of success, he or she did not think the appeal would, or should succeed (see Callaway JA in R v Blick (1999) 108 A Crim R 525 at [19]). Because the new provisions are not a consolidation of pre‑existing legislation, and given the different wording and legislative purpose of them, it is not helpful to rely upon either the common law authorities or those which concern the construction or application of other and differently worded statutory provisions - other than to the extent that, as we have observed, the legislature apparently thought they were not sufficiently restrictive.
The appellant argues that, consistently with the approach taken by courts in previous decisions, the phrase "reasonable prospect of succeeding" should be construed broadly; that is, it should not be interpreted in a narrow sense as being confined to whether an appeal will possibly or probably be allowed. It is submitted the administration of justice favours a liberal interpretation of the test for a number of reasons, including that a court of three Judges may have a totally different opinion on the merits of an appeal than a single Judge; if a conservative test were applied to determine the granting of leave there would be a potential for the hindrance of the development of the law; and because of the manifest importance of the processes applicable to the resolution of conviction and sentence of criminal accused in particular, be accessible and transparent to all involved.
The phrase "reasonable prospects of success" has recently been the subject of judicial and academic consideration in relation to State and Federal legislation which introduced sanctions against lawyers for acting in proceedings which do not have such prospects.
In an article, "What are 'reasonable prospects of success'?" ((2004) 78(12) ALJ 812), Nicholas Beaumont discusses a number of such different statutory provisions. They include the US Free Trade Agreement Implementation Act 2004 (Cth), requiring contemplated proceedings to "… have reasonable prospects of success", and s 198J of the Legal Profession Act 1987 (NSW) which also refers to the notion of "reasonable prospects of success". The latter was part of a package of amendments intended to reduce the number of actions for damages for personal injury in New South Wales. The particular parts of that package were contained in Div 5C of Pt 11 of the Legal Practitioners Act 1987 (NSW) which was inserted by Sch 2 of the Civil Liability Act 2002 (NSW). We shall return to this below.
Based upon an examination of the purpose of the legislative provisions considered by him and also a number of the material authorities, the author's thesis is that the phrase "reasonable prospects of success" means no more than prospects which are not fanciful - that is to say the case has reasonable prospects if it is not hopeless or entirely without merit.
The importance of the particular context in construing a statutory provision is apparent from the content of Nicholas Beaumont's article and the authorities discussed in it. A great deal turned on potential ramifications of the particular legislation, such as the deterrence of novel or creative legal claims, even though not actually hopeless and having some chance of success; undermining the role of lawyers as independent legal advisers, by forcing them to act as a "pre‑trial screen" to prevent litigants whose cases are not hopeless, from having access to the courts; and the serious consequences of suspending from practice or striking off the roll or penalising by costs orders, lawyers who act in cases which do not have a reasonable prospect of success.
The author refers to United States and United Kingdom authorities which draw attention to two other important considerations. The first is the potential for restrictive provisions of this kind to "chill" the development of the law. He refers to Eastway Construction Corporation v City of New York (1985) 762 F 2d 243 at 254 in which the United States Court of Appeal observed:
"We do not intend to stifle the enthusiasm or chill the creativity that is the very lifeblood of the law. Vital changes have been wrought by those members of the bar who have dared to challenge the received wisdom, and a rule that penalized such innovation and industry would run counter to our notions of the common law itself."
The article goes on to discuss the second consideration arising in the context of a restriction sanctioned by costs orders against those lawyers who breach it. That is the prospect of "satellite" or collateral litigation, often becoming disproportionate to the litigation which spawned it (see Medcalf v Mardell [2003] 1 AC 120 at [57] ‑ [58] and de Groot v Nominal Defendant [2004] NSWCA 88 at [25]). This last is not a consideration in respect of the CA Act. The only potential for further litigation from a refusal of leave to appeal is an application to the Court comprising three Judges, against that refusal.
There are two New South Wales decisions which bear upon the point at issue. They are Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284, a decision of Barrett J on 1 February 2005 and Lemoto v Able Technical Pty Ltd [2005] NSWCA 153, a decision of the New South Wales Court of Appeal on 9 May 2005. Both cases concern Div 5C of Pt 11 ("the restraint provisions") of the Legal Practitioners Act 1987 (NSW) ("the NSW Act").
The restraint provisions of the NSW Act came into operation in March 2002. Section 198J stipulates that a lawyer must not provide legal services on a claim, or defence of a claim, for damages, unless they reasonably believe on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence "has reasonable prospects of success". By s 198L, the provision of legal services without reasonable prospects of success is expressed to be capable of being professional misconduct or unsatisfactory professional conduct. Section 198M empowers a court to make personal costs orders (including indemnity costs) against lawyers where it appeared to the Court that they had provided legal services to a party without reasonable prospects of success. Section 198N provides that where a trial court hearing a claim for damages finds the facts established by the evidence did not form a basis for a reasonable belief that the claim or defence had reasonable prospects of success, there would be a presumption that the legal services were provided without reasonable prospects of success. The presumption is rebuttable, but the onus is on the lawyer to rebut it.
In Degiorgio, Barrett J dismissed a plaintiff's claim in its entirety, with costs. He directed written submissions be made in relation to costs. The defendant filed an application seeking indemnity costs orders against both the plaintiff and the plaintiff's solicitor. The solicitor withdrew from the plaintiff's action, and was separately represented by counsel thereafter. His Honour ordered the plaintiff to pay the defendant's costs on a party/party basis and dismissed both applications for indemnity costs. On the meaning of "without reasonable prospects of success" in the context of the NSW Act, Barrett J favoured the construction "so lacking in merit as to be not fairly arguable". He set out his reasoning at [19] ‑ [28]:
"19 … the relevant provisions of the Legal Profession Act are intended to change general law principles to the general effect that a lawyer may with impunity act for a client in proceedings which are apparently hopeless, provided that the lawyer is not aware that the proceeding might amount to an abuse of process. That apparent legislative intention may serve to add content to the statutory language.
20When that statutory language is examined, it is seen that, while s 198J(4) goes some way towards explaining 'reasonable prospects of success', it does so in a way that does not attempt to explain or define 'reasonable prospects'. The meaning of that expression must be gathered by analogy, with such attention as is permissible paid to Parliamentary materials.
21In some contexts, 'reasonable prospects of success' signifies no more than 'arguable'. I quote the following passage from the decision of the Australian Industrial Relations Commission in Westend Pallets Pty Ltd v Lally (1996) 69 IR 1 at 12: 'The requirement for an arguable case of either legal error or that the discretion has been miscarried will mean that appellants must demonstrate that their case has a reasonable prospect of success'.
22It may also be said that 'reasonable prospects of success' connotes something less than likelihood of success - hence the formulation of Sheppard J, in Ahern v Deputy Federal Commissioner of Taxation (1983) 78 FLR 202 at 213, '… will be likely to succeed or at least have reasonable prospects of success' [emphasis added]. That the test is not a particularly stringent one is suggested by an observation of Gleeson CJ, McHugh J and Gummow J in United Mexican States v Cabal (2001) 209 CLR 165 at 174 [16]: '… A constitutional challenge to legislation is always a matter of public importance. If it has even reasonable prospects of success, special leave to appeal will be granted - almost as of course'. [emphasis added]
23I was referred by counsel to an article by N Beaumont, 'What are "reasonable prospects of success"?' (2004) 78 Australian Law Journal 812 in which it is suggested that a claim satisfies the statutory requirement 'if it is not hopeless or entirely without merit'. The 'not hopeless' construction is put forward by reference to Cadogan v McCarthy & Stone (Developments) Ltd [2000] L&TR 249, an English decision about the phrase 'reasonable prospect of being able to bring about this occupation'. Saville LJ there said (at 253‑254):
'The reason why it must be established that there is a reasonable prospect of obtaining permission is that otherwise the landlords could only be said to be contemplating, rather than genuinely intending, the desired course of action. A reasonable prospect in this context accordingly means a real chance, a prospect that is strong enough to be acted on by a reasonable landlord minded to go ahead with plans which require permission, as opposed to a prospect that should be treated as merely fanciful or as one that should sensibly be ignored by a reasonable landlord. A reasonable prospect does not entail that it is more likely than not that permission will be obtained.'
24The learned author sees the 'not fanciful' formulation of Saville LJ as supported by the decision of the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 which concerned the expression 'reasonable hypothesis'. Brennan J (at 428) approved the distinction drawn in Repatriation Commission v Webb (1987) 76 ALR 131 at 135 between 'a theory that is rationally based' and one that is 'irrational, absurd or ridiculous'.
25The explanatory note accompanying the Civil Liability Bill 2002 provides no guidance on the meaning of 'reasonable prospects of success'. The Premier's second reading speech (Parliamentary Debates, Legislative Assembly, 28 May 2002, at 2085) is of some assistance in that it refers to 'unmeritorious claims' and 'spurious defences'. The adjective 'unmeritorious' refers to something that is devoid of merit. Something is 'spurious' if it is false or not genuine.
26I accept that this legislation imposes upon lawyers a standard that is more demanding than that applicable in cases where, by reference to general law principles, a costs order is sought against a party's lawyer. Cases of that kind turn upon the lawyer's duty to the court. Here, by contrast, the lawyer is subject to a statutory duty reflective of the interests of the community. A recent statement of the relevant general law approach may be found in the decision of the Queensland Court of Appeal in Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683. Davies JA there said (at 689 [24]), with the concurrence of the other members of the court and after reviewing earlier authorities:
'To the extent that those statements state or imply that it is not improper for a legal representative to present a case which he or she knows to be bound to fail, I would reject them. I would prefer to say that it is one thing to present a case which is barely arguable (but arguable nevertheless) but most likely to fail; it is quite another to present a case which is plainly unarguable and ought to be so to the lawyer who presents it. In my opinion, with respect, it is improper for counsel to present, even on instructions, a case which he or she regards as bound to fail because, if he or she so regards it, he or she must also regard it as unarguable.'
27In drawing a line at a somewhat higher point on the relevant scale of conduct, the Legal Profession Act should not, in my opinion, be presumed to intend that lawyers practising in New South Wales courts must boycott every claimant with a weak case. A statutory provision denying to the community legal services in a particular class of litigation cannot be intended to stifle genuine but problematic cases. Nor do I see the statutory provisions as intended to expose a lawyer to the prospect of personal liability for costs in every case in which a court, having heard all the evidence and argument, comes to a conclusion showing that his or her client's case was not as strong as may have appeared at the outset to be. The legislation is not meant to be an instrument of intimidation, so far as lawyers are concerned.
28The several factors to which I have referred, including the references in the Premier's second reading speech and the apparent legislative purpose, cause me to adopt the construction of 'without reasonable prospects of success' that equates its meaning with 'so lacking in merit or substance as to be not fairly arguable'. The concept is one that falls appreciably short of 'likely to succeed'."
That conclusion was expressly approved and adopted by McColl JA (Hodgson and Ipp JJA agreeing) in Lemoto. Her Honour described in some detail the historical background to the power of courts with inherent jurisdiction to make costs orders against legal practitioners, noting that Div 5C represented a substantial departure from the ambit of that power hitherto had. She said (at [119]) it was apparent that Div 5C formed part of a "package" of measures designed to reduce the costs of claims for damages and (at [121]) that the legislature intended the making of a costs order pursuant to the new provisions to involve either an exercise of disciplinary power or the exercise of a power ancillary to a disciplinary power, rather than to be merely an aspect of the Court's costs jurisdiction. Her Honour noted (at [122]) that the jurisdictional basis of a Div 5C costs order, a finding that a lawyer had provided legal services to a party without reasonable prospects of success, was capable of being professional misconduct or unsatisfactory professional conduct which exposed the lawyer to a range of penalties under the New South Wales Act. She said (at [123]) that "[t]he grave consequences" to which Div 5C exposed a lawyer and the lawyer's client, indicated that the construction of the section and the application of the jurisdiction should be no wider than was clearly required by the statute. Her Honour further noted (at [125]) the potential for a conflict of interest was manifest as, too, was the deterrent effect on lawyers; Div 5C was capable of visiting severe consequences both against the lawyer and the client who would be potentially deprived of legal representation to pursue their claim for damages. As to this, her Honour observed (at [126]):
"The legislature clearly intended Division 5C to have this chilling effect. It is timely, however, to recall the tensions to which the Court of Appeal referred in Ridehalgh (at 226). While the Division 5C jurisdiction should not be emasculated, the due administration of justice should not be impaired by a too liberal exercise of the new powers."
McColl JA then referred to Degiorgio and reproduced pars [20] ‑ [28] of the judgment of Barrett J, after which she concluded (at [132]):
"Barrett J's construction of the expression 'without reasonable prospects of success' appears to me to accommodate both the purpose of Division 5C and to reflect the language of s 198J. The test, whether a claim or a defence was 'so lacking in merit or substance as to be not fairly arguable', must be applied, however, in the context of the constituent components of s 198J. In that context the question becomes whether the solicitor or barrister held a reasonable belief that the provable facts and a reasonably arguable view of the law meant that the prospects of recovering damages or defeating a claim or obtaining a reduction in the damages claimed were 'fairly arguable'. These are matters about which reasonable minds might differ. The question will be whether the solicitor or barrister's belief that they had material which objectively justified proceeding with the claim or the defence 'unquestionably fell outside the range of views which could reasonably be entertained': Medcalf at [40] per Lord Steyn."
That the new statutory provision in this State was intended to set a higher threshold than previously applied in s 187 of the Justices Act is apparent from two features. The first is that leave of the Court is now required for each ground of appeal, whether involving error of law or error of fact. Secondly, it postulates a presumptive refusal of leave unless the Court is satisfied the ground has a reasonable prospect of succeeding - "the Court of Appeal must not give leave to appeal …". Moreover, this is apparent from the legislative history, in particular the Law Reform Commission Report which, as we have said, was the genesis of the amending legislation.
The legislative intent was clearly to impose a greater restriction than hitherto on appeals to single Judges of the Supreme Court and, by requiring that leave be required for each ground, to the Court of Appeal in criminal cases. The previous provisions were clearly thought not to be restrictive enough. It must be accepted that some greater restriction was thought necessary to reduce the workload on those Courts and to reduce the time and cost of obtaining final resolution of criminal appeals. But it must also be accepted that this reform measure was intended still to be consistent with the maintenance of a fair and equitable judicial system.
There are various dictionary definitions of the word "reasonable". The "Macquarie Dictionary" (2nd Revised Ed) defines it (at 1416) as meaning:
"1. endowed with reason. 2. agreeable to reason or sound judgment: a reasonable choice. 3. not exceeding the limit prescribed by reason; not excessive …".
"Reason" is relevantly defined as:
"… 11. to think or argue in a logical manner … 17. to support with reasons",
and "prospect" is defined (at 1363) as:
"1. an apparent probability of advancement, success, profit etc".
"The New Shorter Oxford English Dictionary" defines "reasonable" (at 2496) as including:
"1 Endowed with the faculty of reason, rational. 2 In accordance with reason; not irrational or absurd … 5 Within the limits of reason; not greatly less or more than might be thought likely or appropriate …"
and "reason" (at 2495) as:
"… a view of things that the reason can approve of".
"Prospect" is defined (at 2385) pertinently as:
"… 7 Forethought; consideration or knowledge of some future event or course of action. 8 A mental picture, esp. of a future or anticipated event … an expectation, esp. of … success".
Leave to appeal must not be granted unless the single Judge (or three‑member Court) is brought to that degree of satisfaction, bearing in mind that the purpose of the legislative provisions is to weed out unmeritorious appeals. Yet at the same time the fundamental principle must be recognised that criminal appellants ought not to be shut out from challenging judicial decisions determining their rights or affecting their liberty, except by clear legislative intent and then only to the extent the legislation necessarily compels. The efficiency of courts and finality of litigation are not to be achieved by denying justice.
The ordinary meaning of the words, taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success. However, it is important to bear in mind that, because the test is directed to each ground, it seems that the answer to the question whether leave to appeal is or is not granted will not involve any consideration of whether, if the ground of appeal succeeds, the error in question has led to a substantial miscarriage of justice. That issue is left for determination on the appeal proper.
As did the majority of the High Court (Gibbs CJ, Aickin, Wilson and Brennan JJ) in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 in a different statutory context, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria, because the circumstances of each case are infinitely various. Furthermore, it is crucial to always recognise that the test to be applied is that expressed in the statutory provision itself, not some judicial restatement or reformulation of it. That said, the following considerations may afford some useful guidance upon its application.
One approach advocated by senior counsel for the appellant which seems to us likely to have practical utility in many cases, is to ask whether the arguments in support of a ground are such as to call for a reply from the respondent: cfR v McDonald (1992) 85 NTR 1 at 3, per Asche CJ, and Gooch & Pierce v The Queen [2002] NTCCA 3 at [6], per Martin CJ, Bailey and Riley JJ. If it does not, it is unlikely to have a reasonable prospect of succeeding. Also, where a ground so suffers from a lack of clarity that the Court or Judge is unable to understand it, there would be no reasonable prospect that ground could succeed in that form.
On the other hand, what is "reasonable" takes its colour from the circumstances. Thus, where a ground is on a point on which the law is unclear and is in a state of development, and where the ground might succeed were the point to be accepted, the ground would be unlikely to be held to have no reasonable prospect of succeeding.
The requirement for leave and the statutory test explained above call for a single Judge or this Court on such an application to give consideration to the merits of each proposed ground of appeal. That will not be a detailed consideration of all the evidence and all the issues in the case; it will be confined to the ground of appeal as particularised - but it must, of course, always be a full consideration of that which is advanced in the appellant's case in support of the application. That having been done, if the Court or Judge is not positively satisfied the ground has a reasonable prospect of success, leave to appeal must be refused. Where leave is refused, sufficient reasons should be given to enable the appellant to understand why that decision was made. As the High Court (Mason CJ, Brennan, Dawson and Toohey JJ) said in Bailey v Director of Public Prosecutions (1988) 62 ALJR 319 at 319 ‑ 320, when the Court of Criminal Appeal is satisfied that an application for leave to appeal against sentence is without merits, the grounds of refusal of leave "should be stated, though they need not be elaborated".
The Court was there dealing with s 5(1) of the Criminal Appeal Act 1912 (NSW), which required an appellant to have leave to appeal against sentence. The Court said that under that provision, leave to appeal would ordinarily be granted when the applicant made out a sufficiently arguable case that the sentence imposed was inappropriate in all the circumstances.
We turn now to the substance of this application for leave to appeal.
The appellant was convicted on 29 April 2005 of two offences contrary to the Misuse of Drugs Act 1981 (WA). They were:
1.possession of methylamphetamine with intent to sell or supply to another, and
2.possession of MDMA ("ecstasy") with intent to sell or supply to another.
On 6 May 2005 he was sentenced on count 1 to 5 years' imprisonment backdated to 29 April 2005, and on count 2 to 4 years' imprisonment with an order that the sentence commence after 2 years of the sentence on count 1, namely from 29 April 2007. The appellant was ordered to be eligible for parole.
There were three grounds of appeal, but they were the subject of amendment before the application came on for hearing. As the amended grounds stood then, they were that:
"1.The learned sentencing judge erred in treating 9 years as an appropriate 'starting‑point' resulting in a sentence that was manifestly excessive in all the circumstances.
2.The learned sentencing judge erred in failing to order total concurrency.
3.The learned sentencing judge erred in failing to give adequate weight to the issue of delay".
In the course of the hearing it was pointed out to senior counsel for the appellant that ground 1 was not a proper ground because an appeal could only be against a sentence actually imposed, and a "starting‑point" was not a sentence. Senior counsel accepted that, and immediately sought leave to amend that ground to assert that the overall effective sentence infringed the principle of totality. He then sought to add a new ground 4 asserting that each of the sentences was manifestly excessive. It then being pointed out to senior counsel that a ground simply asserting that a sentence is manifestly excessive is not a proper ground (see r 32(4)(b) Supreme Court (Court of Appeal) Rules 2005), senior counsel then sought leave to amend by including certain particulars to ground 4 by reference to his outline of submissions. There being no objection, leave was granted. The final grounds of appeal before the Court, as particularised, therefore are that the learned sentencing Judge erred in:
1.imposing an overall effective sentence which infringed the principle of totality;
2.failing to order that the two sentences be served wholly concurrently;
3.attributing little or no mitigatory weight to the delay of 3 years and 4 months between the time of charging and the time of trial in circumstances where such delay was not in any way attributable to fault on the part of the offender;
4.imposing sentences which were manifestly excessive in the circumstances.
Particulars
The sentences failed to give sufficient weight to:
4.1the appellant's strong prospects of rehabilitation;
4.2the delay in proceedings;
4.3the appellant's excellent employment history;
4.4the appellant's personal and family circumstances including a strong and caring relationship with his two young daughters and his mother's serious illness;
4.5the appellant's lack of any relevant prior convictions;
4.6the age of the appellant;
4.7the circumstances of the offending including the financial crisis experienced by the appellant at the relevant time.
Ground 1 postulates in effect that the aggregate sentence of 6 years' imprisonment was so disproportionate to the overall criminality of the appellant's conduct constituted by these two offences as necessarily to reflect fundamental error in the exercise of the sentencing discretion.
There were two different drugs, methylamphetamine and MDMA, both of which are ranked amongst the most serious illicit drugs. The purity of the drugs was relatively high. Count 1 involved 23.5 gm of methylamphetamine, of 34 per cent purity. Count 2 concerned 315.8 gm of MDMA, of which 293 gm was 21 per cent pure and 22.8 gm was 23 per cent pure. Senior counsel for the appellant further contended in argument that the individual sentences were manifestly excessive.
Unlike the situation in Johnson v The Queen (2004) 78 ALJR 616, the appellant was not in possession of one package which happened, unknown to him, to contain two different types of drugs. Although both drugs were located in the same backpack which was in the appellant's shed, they were separately packaged. He possessed both of them at the same time, but each possession was with an intent on the appellant's part to sell or supply that particular drug to another or others. Each possession was a separate occasion of potential harm to the community from distribution of that particular drug.
The overall sentence of 6 years' imprisonment is equivalent to a sentence of 9 years' imprisonment imposed before 31 August 2003. We shall return to this when we consider ground 4.
To succeed on ground 2, the appellant would have to satisfy the Court it was not open to a single Judge to make any order other than that the sentences be served wholly concurrently. We do not consider that this ground has a reasonable prospect of succeeding. The sentence imposed in respect of each offence must be appropriate and proportionate to that offence (although it may then be reduced to accommodate the overarching principle of totality, where that is necessary in the circumstances) (Pearce v The Queen (1998) 194 CLR 610 at [45]). An offender is not to be punished twice for the same act which constitutes an element of more than one offence (Pearce at [40]). That was the situation in Johnson, where the offender received one package containing two different drugs. The present case is distinguishable. There were not common elements here in that sense. There were two discrete transgressions against the community interest. The same point was made by Wheeler J (Templeman and McLure JJ concurring) in Sinagra‑Brisca v The Queen [2004] WASCA 68. There the offender was convicted of four offences of possessing prohibited drugs with intent to sell or supply. Count 1 related to more than 2.4 kg (10,000 tablets) of MDMA of 27 per cent purity. Count 2 related to 5.06 kg of methylamphetamine ranging in purity between 21 ‑ 50 per cent, with 4.625 kg of a purity between 46‑50 per cent. Count 3 concerned 800 gm of methylamphetamine in 34 clip‑seal bags, of 28 ‑ 70 per cent purity. Count 4 related to 55 tablets (14 gm) of MDMA of 18 per cent purity. The primary Judge would have imposed sentences of 17 years 6 months on each of counts 1 and 2, 7 years' imprisonment on count 3 and 3 years' imprisonment on count 4, but reduced the 7 years to 3 years because of the principle of totality. He ordered the sentences to be concurrent, except for that on count 3, which he ordered to be cumulative, making a total of 20 years 6 months.
On appeal, it was submitted (inter alia) the sentences should all have been concurrent, since all the drugs were found in the offender's possession on the same day and were therefore part of "one transaction". As to that submission, Wheeler J said (ibid, [28] ‑ [31]):
"28 As it was developed in argument, the proposition in support of the 'one transaction' rule was that no matter what sort of drugs were possessed (that is, even if there were a variety of different drugs involved) and no matter whether there were different degrees of purity, different sources of the drugs, and different proposed destinations, whenever a person was found having on one day possession of any quantities of drugs with intent to sell or supply, sentences in respect of each count of possession must be concurrent, because they were all part of the 'one business enterprise'. That submission cannot be sustained.
29The 'one transaction' concept is in most cases of limited usefulness, if full weight is given to the principles enunciated by the High Court in Pearce v The Queen (1998) 194 CLR 610 (see R v White [2002] WASCA 112, R v Weldon (2002) 136 A Crim R 55, R v Faithfull [2004] WASCA 39). Rather than being fixed on the notion, itself somewhat artificial, of a 'transaction', the Court must be astute to ensure that an offender is not twice punished in respect of conduct common to what are technically distinct offences; Pearce v The Queen at 623 [40] per McHugh, Hayne and Callinan JJ, Johnson v The Queen [2004] HCA 15 at [27] per Gummow, Callinan and Heydon JJ. That will often require reduction of some sentences, or complete or partial concurrency. Equally, where one 'transaction', involves complex criminal conduct, distinct aspects of which constitute different offences, the Court must ensure that appropriate punishment is imposed in respect of all of the conduct; Pearce v The Queen at 621-622 [36] – [37]. That will often require totally or partially cumulative sentences.
30It may well be appropriate to apply the 'one transaction' rule where, for example, it is plain that an offender is in possession of a single quantity of one drug, obtained on one occasion from one source, which simply happens to have been broken up into different parcels (and perhaps even if stored at different locations). There is a degree of artificiality which may arise if distinct offences fall to be dealt with simply as a result of the stage at which a drug dealing transaction, originally conceived as a single enterprise, may have arrived. However, that was not this case.
31It is clear that the conduct the subject of count 1, resulted in the applicant's coming into possession for the purpose of sale or supply of a drug on an occasion separate from whatever transactions may have caused him to come into possession of the drugs the subject of the other counts. So far as the other counts were concerned, there were two different types of drugs involved; they were stored at two different locations; and they were of differing purity. There may or may not have been some 'overlap' between the offences if all the circumstances had been fully known (cf Johnson v The Queen (supra)). However, in the absence of anything to indicate that they were somehow the subject of one transaction or overlapping transactions (that being a matter peculiarly within the applicant's knowledge, and as to which he appears to have volunteered nothing) it would in my view, have been appropriate to treat them each as relevantly a separate "transaction". His Honour was, if anything, generous in treating counts 2, 3 and 4 as necessarily calling for concurrent terms of imprisonment."
We consider that what was said by Wheeler J is applicable in this case and we are consequently not persuaded that this ground has a reasonable prospect of succeeding.
Ground 3 complains that his Honour erred in attributing little or no mitigatory weight to the delay of three years and four months between the time the appellant was charged and the time of his trial. His Honour accepted that the delay was not attributable to any fault on the appellant's part. The appellant had been charged with another offence. The Crown proceeded with the trial of that offence first and the trial in the present matter was deferred pending that. The appellant was acquitted on the first trial. He was on bail at all material times and the conditions included reporting three days a week. It is submitted on his behalf that his compliance with the bail reporting conditions and the fact that he did not commit any further offences during that period was "clear evidence" of rehabilitation. His Honour noted the delay in coming to trial had not been as a result of anything specifically done by the appellant, but because of various matters involving the justice system, including the pre-eminence of another trial which took a long time to be resolved.
The appellant seeks to rely upon Duncan v The Queen (1983) 47 ALR 746. The delay in that case was almost four years. There, the appellant had set about re‑establishing himself in society. He had incurred financial liabilities from which an innocent party would suffer if he were not released. The authorities relied upon in that case all concerned active and significant rehabilitation by the offender during the period of lengthy delay between the offence and the bringing of proceedings (as in Barnes v The State of Western Australia [2004] WASCA 258). That is not the situation here. The appellant was charged and the proceedings were brought promptly. The highest it is put is that whilst on bail and whilst defending himself on the earlier trial and then awaiting the trial in this matter, the appellant complied with his bail conditions and did not commit any further offences. The appellant's plea of not guilty and his advancing a positive defence which the jury necessarily rejected, do not suggest any rehabilitation process during the period of delay which would justify (much less necessitate) some reduction in sentence. Nothing in the way of positive rehabilitation is sought to be advanced.
That leaves the fact of delay itself. In Duncan the Court of Criminal Appeal (Wallace, Brinsden and Rowland JJ) said (at 749) that:
"The very fact of the long delay in bringing the matter to court which led the applicant to have this matter hanging over his head for nearly four years is rightly prayed in aid on his behalf."
No doubt their Honours had in mind the stresses and strains which a pending criminal prosecution must cause any defendant. We accept that the mere fact that those stresses and strains were required to be endured for a very long period of time, through no fault of the appellant, might reasonably be thought to be a matter in mitigation of sentence, although the authorities in that regard are not entirely consistent and there is room for debate as to how much weight it should be given. However, this point is also raised as a particular to ground 4 and we think it should more properly be dealt with as a particular to that ground.
Ground 4 claims the sentences were manifestly excessive having regard to the matters particularised.
It is not suggested his Honour failed to have regard to these matters; the claim is that he did not give them sufficient weight. His Honour observed (at t/s 358 ‑ 359) that:
"The difficulty for [the appellant] in the case is the seriousness of the offences, the type of offending, the prevalence of drugs in the community, the incalculable harm done by drugs in the community. That's the problem in this matter.
There is also the need to deter others from engaging in the business of dealing in drugs."
That succinct statement would appear to be in accordance with authority. As the respondent submits, as methylamphetamine and MDMA are ranked amongst the most serious illicit drugs, the primary sentencing principles are general and personal deterrence and matters personal to the appellant carry less significance (R v Bellissimo (1996) 84 A Crim R 465; R v Darwell (1997) 94 A Crim R 35).
However, the sentence of 5 years' imprisonment equates to one of 7 years 6 months prior to the Sentencing Act amendments in August 2003, the sentence of 4 years equates to one of 6 years and the aggregate of 6 years equates to a previous aggregate of 9 years' imprisonment. For present purposes it is sufficient to note that a consideration of the cases (including, but not limited to Bellissimo (supra); R v Marker (2002) 135 A Crim R 55; Kirby v The Queen [2003] WASCA 239; Stapleton v The Queen [2004] WASCA 130 and Barnes v The State of Western Australia (supra)) suggests that an argument that the sentences (and the total sentence imposed) are outside the range of a proper exercise of the sentencing discretion, and hence manifestly excessive, has a reasonable prospect of succeeding when regard is had for the matters particularised in pars 4.2, 4.5 and 4.7 and for the range of sentences ordinarily imposed in similar cases.
We would accordingly refuse leave to appeal in respect of grounds 2 and 3 but grant it on grounds 1 and 4. However, we would limit the matters which might be raised in support of ground 4 to those to which we have referred.
578
44
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