Santos v The State of Western Australia - [2018] WASCA 164

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SANTOS -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 164
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   18 MAY 2018
DELIVERED          :   25 SEPTEMBER 2018
FILE NO/S:   CACR 57 of 2018
BETWEEN:   JAMIESON ANDREW SANTOS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STEVENSON DCJ
Citation: THE STATE OF WESTERN AUSTRALIA -v- SANTOS (NO 2) [2017] WADC 158
File Number             :   IND 1616 OF 2008

Catchwords:

Criminal law - Drug offences - Appeal from refusal of sentencing judge to exercise power to correct sentence - Whether appeal is competent

Legislation:

Commonwealth Places (Application of Laws) Act 1970 (Cth), s 3, s 7, s 12(1)
Criminal Appeals Act 2004 (WA), s 23, s 31
Judiciary Act 1903 (Cth), s 79
Misuse of Drugs Act 1981 (WA), s 6(1)
Sentencing Act 1995 (WA), s 37

Result:

Application for an extension of time within which to appeal dismissed
Leave to appeal refused
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr L M Fox

Solicitors:

Appellant	:	In person
Respondent	:	The Director of Public Prosecutions (WA)

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

Achurch v The Queen [2014] HCA 10; (2014) 253 CLR 141
CJD v VAJ (1998) 197 CLR 172
Harvey v The Queen [2017] WASCA 43
Lacey v The Queen [2011] HCA 10; (2011) 242 CLR 573
Lawson v The State of Western Australia [No 3] [2018] WASCA 129
Macleod v Australian Securities and Investments Commission [2002] HCA 37; (2002) 211 CLR 287
Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48
Ponnambalam v The State of Western Australia [2015] WASCA 185
Re The Commissioner of the Department of Corrective Services; Ex parte Santos [2016] WASC 139
Rizeq v The State of Western Australia [2017] HCA 23
Santos v Director of Public Prosecutions (WA) [2016] WASCA 230; (2016) 316 FLR 94
Santos v State Director of Public Prosecutions [2015] WASC 335
Santos v State Director of Public Prosecutions [2017] HCASL 146
Santos v The State of Western Australia [2013] HCASL 123
Santos v The State of Western Australia [2014] HCASL 226
Santos v The State of Western Australia [2016] HCASL 221
Santos v The State of Western Australia [2016] WASCA 107
Santos v The State of Western Australia [No 2] [2013] WASCA 39
The State of Western Australia v Hatch [2008] WASCA 162
The State of Western Australia v Jenkin [2011] WASCA 171
The State of Western Australia v Polmear [2013] WASCA 291
The State of Western Australia v Santos (No 2) [2017] WADC 158
The State of Western Australia v Wallam [2008] WASCA 117 (S)
Traegar v Pires de Albuquerque (1997) 18 WAR 432
Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105

BUSS P & MAZZA JA:

On 9 December 2011, the appellant and his co‑offender, Joseph Frank Micalizzi, were convicted, after a trial in the District Court before Stevenson DCJ and a jury, of two counts of possession of a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).
On 5 March 2008, the appellant piloted a light aircraft from Bankstown airport in Sydney to Jandakot airport in Perth. Mr Micalizzi was his only passenger. Shortly after landing at Jandakot airport, police intercepted and searched the aircraft. The police located about 9 kg of ecstasy and about 22 kg of methylamphetamine in a black bag in the rear cargo area of the aircraft.
At all material times, Jandakot airport was a 'Commonwealth place' as defined in s 3 of the Commonwealth Places (Application of Laws) Act 1970 (Cth) (the Commonwealth Places Act). The offences of which the appellant was convicted were therefore committed in a Commonwealth place.
On 2 February 2012, the appellant was sentenced to 13 years' imprisonment on one count and 15 years' imprisonment on the other count. The sentences were ordered to be served concurrently. The total effective sentence was therefore 15 years' imprisonment. A parole eligibility order was made.

The appellant's previous challenges to his conviction and his sentence

The appellant has challenged his conviction and his sentence in numerous proceedings before this court and the High Court. All of the proceedings have been unsuccessful. In particular:
(a)In 2012 the appellant made an application for leave to appeal against conviction to this court. Leave was refused and the appeal was dismissed. See Santos v The State of Western Australia.[1] The appellant applied for special leave to appeal to the High Court. His applications were refused. See Santos v The State of Western Australia;[2] Santos v The State of Western Australia.[3]
(b)In 2012 the appellant appealed against sentence to this court, but on 28 February 2012 he discontinued the appeal.
(c)In 2015 the appellant applied in the General Division of the Supreme Court for a writ of certiorari and a declaration. Allanson J dismissed the application. See Santos v State Director of Public Prosecutions.[4] The appellant then made an application for a writ of habeas corpus. Allanson J dismissed the application. See Re The Commissioner of the Department of Corrective Services; Ex parte Santos.[5] In 2015 and 2016 the appellant appealed to this court against Allanson J's decisions. His appeals were dismissed. See Santos v Director of Public Prosecutions (WA).[6] The appellant applied for special leave to appeal to the High Court. His application was refused. See Santos v State Director of Public Prosecutions.[7]
(d)In 2014 the appellant again appealed against sentence to this court. The appellant filed an application in the purported appeal in which he sought an order from the court permitting him to withdraw the notice of discontinuance he had filed in his initial appeal against sentence. The making of that order was necessary because of the established principle that an offender is not entitled to commence a second or subsequent appeal under the Criminal Appeals Act 2004 (WA) in respect of the same sentencing decision. The appellant's application to withdraw the notice of discontinuance was dismissed. The purported appeal was struck out as incompetent. See Santos v The State of Western Australia.[8] The appellant applied for special leave to appeal to the High Court. His application was refused. See Santos v The State of Western Australia.[9]
[1] Santos v The State of Western Australia [No 2] [2013] WASCA 39.
[2] Santos v The State of Western Australia [2013] HCASL 123.
[3] Santos v The State of Western Australia [2014] HCASL 226.
[4] Santos v State Director of Public Prosecutions [2015] WASC 335.
[5] Re The Commissioner of the Department of Corrective Services; Ex parte Santos [2016] WASC 139.
[6] Santos v Director of Public Prosecutions (WA) [2016] WASCA 230; (2016) 316 FLR 94.
[7] Santos v State Director of Public Prosecutions [2017] HCASL 146.
[8] Santos v The State of Western Australia [2016] WASCA 107.
[9] Santos v The State of Western Australia [2016] HCASL 221.

The appellant's previous judicial review proceedings

In Santos v Director of Public Prosecutions (WA),[10] the appellant contended that:
(1)The District Court was exercising federal jurisdiction as the appellant was a resident of New South Wales. Accordingly, the proceedings were a matter within s 75(iv) of the Constitution (a matter between a State and a resident of another State).
(2)As the District Court was exercising federal jurisdiction, Commonwealth legislation applied so that:
(a)the indictment was invalid as it was presented in the name of the State of Western Australia;
(b)the indictment could only have been presented by a prosecutor holding an appointment under s 69 of the Judiciary Act 1903 (Cth);
(c)the indictment invalidly purported to confer the judicial power of the State on the District Court;
(d)there were provisions of Commonwealth law that applied and which overrode inconsistent State provisions - in particular, the trial judge had been required to sentence under pt 1B of the Crimes Act 1914 (Cth); pt 9.1 of the Criminal Code Act 1995 (Cth) (the Commonwealth Code) applied for the purpose of determining the weight of the drugs that the appellant had allegedly possessed and the Evidence Act 1995 (Cth) applied, particularly in relation to determining the admissibility of opinion, hearsay, accomplice and prisoner informer evidence and the warnings that were required to be given about that evidence [13].
[10] Santos v Director of Public Prosecutions (WA) [2016] WASCA 230; (2016) 316 FLR 94.
This court (Corboy J; Martin CJ agreeing & Mazza JA relevantly agreeing) rejected the appellant's contentions and dismissed his appeals against Allanson J's decisions.
Corboy J said:
The purpose and effect of the Commonwealth Places Act can be succinctly stated in light of the authorities discussed above. The purpose of the Act is to apply State law to a Commonwealth place. The effect of the Act is to apply State law to a Commonwealth place as surrogate federal law. Where a person is charged with having committed an offence against a State law in a Commonwealth place:
(a)the court dealing with the charge is exercising federal jurisdiction;
(b)the offence will be a federal offence in terms that correspond with the terms of the State law;
(c)State criminal process laws will also apply to the investigation, prosecution and trial of the accused person by a combination of s 4 (1) or s 6(1) of the Commonwealth Places Act, any arrangement that has been made under s 6(1) of the Act and s 79(1) of the Judiciary Act (and see below regarding the effect of s 12(1) of the Commonwealth Places Act and s 11 of the State DPP Act).
A fundamental difficulty in the appellant's submissions was the failure to appreciate the nature of federal diversity jurisdiction. There are not two entirely independent sources of law as the appellant suggests – a binary system of either State law or Commonwealth law. Rather, the Commonwealth Parliament has legislative power to enact legislation that, in this instance, applies State law to a Commonwealth place. The offences with which the appellant was charged and convicted were offences against s 6(1) of the MD Act applied as surrogate federal law by the Commonwealth Places Act. Contrary to the appellant's submissions, the charges were validly made under a law that was 'known' to Commonwealth law [68] ‑ [69].
The High Court, in refusing the appellant's applications for special leave to appeal from this court's judgment, said that, having regard in particular to the High Court's decision in Rizeq v The State of Western Australia,[11] the appellant's proposed appeal did not enjoy sufficient prospects of success to warrant the grant of special leave to appeal.[12]
[11] Rizeq v The State of Western Australia [2017] HCA 23.
[12] Santos v State Director of Public Prosecutions [2017] HCASL 146 [1].

The appellant's previous purported appeal against sentence

In Santos v The State of Western Australia,[13] this court (Mazza JA; McLure P & Newnes JA agreeing) decided that none of the appellant's proposed grounds of appeal had any merit and that there was 'no merit [whatsoever]' in the appellant's application to withdraw the notice of discontinuance in respect of his initial appeal against sentence.
[13] Santos v The State of Western Australia [2016] WASCA 107.
Proposed ground 1 alleged, in essence, that the trial judge had erred in not holding that the sentencing consideration of 'quantifying' the weight of the prohibited drugs, pursuant to the Misuse of Drugs Act, was inconsistent with s 312 of the Criminal Code Act 1995 (Cth) and therefore 'inoperative' because of s 109 of the Commonwealth Constitution. Mazza JA observed:
While it may be accepted that the District Court was exercising Federal diversity jurisdiction in respect of the appellant by reason of his residency in New South Wales at the time of the offences, this does not mean that the appellant is not subject to the provisions of the MDA, including as to the quantification of the drugs in question.
As this court explained in Hughes, based on the relevant judgments in Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1, offences under the MDA retain their character as laws of the State of Western Australia and are to be applied as such by the courts of this State [152]. Moreover, there is no relevant s 109 inconsistency between the MDA and the Criminal Code (Cth) [153] - [154]. This is sufficient to dispose of proposed ground 1 [32] ‑ [33].
Proposed ground 5 (without particulars) read:
The District Court judge erred in law by applying the incorrect sentencing legislation in a 'Matter' as defined under Chapter III s 75(iv) of the Constitution [sic]. The application of the judicial power of the State does not apply. Only the judicial power of the Commonwealth was applicable, this has led to a judicial error and a substantial miscarriage of justice.
Mazza JA said that the particulars and the written submissions in support of proposed ground 5 were 'largely nonsense' [66]. His Honour continued:
The proposition the appellant puts forward appears to be that, as he was a Federal offender, he should have been sentenced under the provisions of pt IB of the Crimes Act 1914 (Cth) and not the Sentencing Act 1995 (WA).
The answer to this proposed ground of appeal is that the appellant was not a Federal offender - the offences for which he was convicted were State offences; thus, he was subject to State sentencing laws [66] ‑ [67].
The High Court, in refusing the appellant's application for special leave to appeal from this court's judgment, said that none of the appellant's proposed grounds of appeal enjoyed sufficient prospects of success to warrant a grant of special leave to appeal. They did not identify any question of principle or otherwise disclose any reason to doubt the correctness of this court's decision dismissing the application to withdraw the notice of discontinuance.[14]
[14] Santos v The State of Western Australia [2016] HCASL 221 [2].

The appellant's current challenge to his sentence

On 26 July 2017, the appellant made an application in the District Court, purportedly pursuant to s 37 of the Sentencing Act 1995 (WA), for the 'correction' of his sentence.
On 12 December 2017, that application was heard by Stevenson DCJ and dismissed.
On 3 April 2018, the appellant filed an appeal notice in this court in respect of Stevenson DCJ's decision to dismiss his application for the 'correction' of his sentence. The appellant also applied for an extension of time within which to appeal and for leave to appeal.
On 26 April 2018, the appellant filed his appellant's case. He relies on three grounds of appeal. Ground 1 alleges that Stevenson DCJ erred by sentencing the appellant as a State offender rather than a Federal offender, and by failing to recall the sentence and impose a Federal sentence of imprisonment. Ground 2 alleges that his Honour erred in law by treating the appellant's prior conviction for a drug offence as an aggravating factor. Ground 3 alleges that his Honour erred in law by regarding the Sentencing Act as State legislation applying of its own force to his offending instead of regarding the Sentencing Act as an applied Commonwealth provision.
On 13 April 2018, the State applied for an order that the appellant's appeal notice filed 3 April 2018 be struck out as incompetent.
On 18 May 2018, this court heard the appellant's applications for an extension of time within which to appeal and for leave to appeal together with the State's application for the appeal notice to be struck out as incompetent.
It is unnecessary to decide whether an appeal lies from the decision of a sentencing court on an application pursuant to s 37 of the Sentencing Act.We will assume (favourably to the appellant, but without deciding) that an appeal does lie to this court from Stevenson DCJ's decision to dismiss the appellant's purported application pursuant to s 37.
In our opinion, the appellant's application for an extension of time within which to appeal should be dismissed, leave to appeal should be refused and his appeal should be dismissed. Our reasons are as follows.

The proper construction of s 37 of the Sentencing Act and whether s 37 applies to the matters raised in grounds 1, 2 and 3 of the appellant's purported appeal

Section 37 of the Sentencing Act provides:
(1)If a court sentences an offender in a manner that is not in accordance with this Act or the written law under which the offence is committed, the court may recall the order imposing the sentence and impose a sentence that is.
(2)The powers in subsection (1) may be exercised by a court on its own initiative or on an application by the offender or the prosecutor made in accordance with the regulations, but in any event the court must give all parties the opportunity to be heard.
(3)If a court's order imposing a sentence contains a clerical mistake or an error arising from an accidental slip or omission, the court may correct it at any time on its own initiative without recalling the order, but the court must ensure that all parties and relevant authorities are notified of the correction.
(3a)A sentence imposed or corrected under this section has effect from the time at which the recalled or incorrect sentence had effect, unless the court orders otherwise.
(4)This section does not affect any right of appeal against a sentence.
(5)In this section ‑
sentence includes an order in addition to sentence.
In Traegar v Pires de Albuquerque,[15] the Full Court of the Supreme Court of Western Australia (Steytler J; Kennedy & Heenan JJ agreeing) held that the power of a sentencing court to recall an order under s 37 extended to a case in which the court had failed to impose a minimum mandatory sentence because the court had not been informed of the defendant's prior convictions. Those prior convictions required the imposition of a minimum mandatory sentence which exceeded the sentence originally imposed (447).
[15] Traegar v Pires de Albuquerque (1997) 18 WAR 432.
In The State of Western Australia v Wallam,[16] Murray AJA (Miller JA agreeing) held that the power of a sentencing court to recall an order under s 37 arises when the sentence imposed was not one which could lawfully have been imposed under the Sentencing Act or the written law under which the offence was committed [58] ‑ [59].
[16] The State of Western Australia v Wallam [2008] WASCA 117 (S).
The principle of finality is part of the common law background against which s 37 is to be considered. See Achurch v The Queen.[17]
[17] Achurch v The Queen [2014] HCA 10; (2014) 253 CLR 141 [16] (French CJ, Crennan, Kiefel & Bell JJ).
In Achurch, the High Court examined s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which is analogous to s 37 of the Sentencing Act. Section 43 provided, relevantly:
(1)This section applies to criminal proceedings (including proceedings on appeal) in which a court has:
(a)imposed a penalty that is contrary to law, or
(b)failed to impose a penalty that is required to be imposed by law,
and so applies whether or not a person has been convicted of an offence in those proceedings.
(2)The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard:
(a)may impose a penalty that is in accordance with the law, and
(b)if necessary, may amend any relevant conviction or order.
…
(4)Subject to subsection (5), nothing in this section affects any right of appeal.
(5)For the purposes of an appeal under any Act against a penalty imposed in the exercise of a power conferred by this section, the time within which such an appeal must be made commences on the date on which the penalty is so imposed.

French CJ, Crennan, Kiefel and Bell JJ held that s 43 did not empower the court to reopen proceedings in which a sentence open at law was arrived at by a process of reasoning involving an error of fact or law. Section 43 did not provide a substitute for the appellate system. The condition in s 43, that the penalty imposed was 'contrary to law', was not satisfied merely by establishing that the sentencing court had made an error of fact or law. Their Honours said:
Section 43 confers upon courts exercising jurisdiction in criminal proceedings a power to reopen those proceedings and to impose a penalty that is in accordance with law (it is not necessary for present purposes to consider whether the section extends the jurisdiction of the courts). The section only applies to criminal proceedings in which one of two conditions is fulfilled. The condition directly relevant to this appeal is that 'a court has … imposed a penalty that is contrary to law'. On the ordinary meaning of that collocation, what must be contrary to law is the 'penalty'. That condition is not satisfied merely by demonstrating that the court has erred in law or fact. Notwithstanding such error, the penalty imposed may not be contrary to law. It may fall within the range of penalties permitted or required by the relevant statutory provisions and may also be consistent with the reasonable exercise of a discretion applicable to the particular offence and offender. Examples of circumstances in which a penalty may be said to be contrary to law include:
•A penalty which exceeds the maximum penalty prescribed for the offence.
•A penalty which it is beyond the power of the court to impose because some precondition for its imposition is not satisfied ‑ eg the existence of an aggravating factor or the existence of prior convictions for the same kind of offence.
A penalty which lies outside the range of penalties that could have been imposed in a reasonable exercise of discretion is not, thereby, contrary to law in the sense required by s 43, not least because reconsideration of such would involve an evaluative exercise which must be dealt with by way of appeal.
…
The text of s 43 is clear enough. The relevant power is conditioned upon the penalty being 'contrary to law'. A construction encompassing error in the imposition of a lawful penalty would allow the power to be applied to any penalty, however appropriate, that is imposed under the influence of an error of law or fact. That construction does not fit with the text. Nor does it accord with the limited purpose of the section. The principle of finality should not be taken to have been qualified except by clear statutory language and only to the extent that the language clearly permits. The construction for which the appellant contended, and which is reflected in some earlier decisions of the Court of Criminal Appeal, can only be supported by attributing to the provision a purpose which, whatever its practical benefits, leaves the boundaries between correction and appeal porous and protected only by the exercise of the sentencing court's discretion. The importance of the distinction between original and appellate jurisdiction in the application of s 43 to courts of first instance militates against such a result. The appellant's construction should not be accepted. A penalty is not 'contrary to law' only because it is reached by a process of erroneous reasoning or factual error [32], [36].
In the present case, the critical provision is s 37(1) of the Sentencing Act. The court's power to recall the order imposing the sentence is conditional upon the court being satisfied that the offender was '[sentenced] in a manner that [was] not in accordance with [the Sentencing Act] or the written law under which the offence [was] committed'. If that condition is satisfied the court 'may recall the order imposing the sentence and impose a sentence that is'.
The expression 'in a manner', in its ordinary and natural meaning, refers to the way in which an act or thing has been or is to be done, and does not include the result to be accomplished.[18]
[18] See the definition of 'manner' in the Macquarie Dictionary (5th ed, 2009) 1019.
However, the expression 'in a manner' in s 37(1) must be construed having regard to the text of s 37 as a whole and the apparent purpose or object of s 37 in the context of the principle of finality, the sentencing framework created by the Sentencing Act and the appeal structure under the Criminal Appeals Act.
In our opinion, the phrase 'sentences an offender in a manner that [was] not in accordance with [the Sentencing Act] or the written law under which the offence [was] committed' in s 37(1), includes, for example:
(a)a failure by the sentencing court, in sentencing the offender, to follow a procedure that was required to be followed by the Sentencing Act or the written law under which the offence was committed; and
(b)a failure by the sentencing court, in sentencing the offender, to impose a sentence that was required to be imposed by the Sentencing Act or the written law under which the offence was committed.
A 'procedure' is contemplated by the expression 'in a manner' in s 37(1) in that, as we have mentioned, the ordinary and natural meaning of that expression includes the way in which an act or thing is to be done.
A 'sentence' is contemplated by the expression 'in a manner' in s 37(1) in that, if the court's power under s 37(1) is enlivened, the court may recall the order imposing the sentence and 'impose a sentence that is'; in other words, by necessary implication, 'impose a sentence that is' in accordance with the Sentencing Act or the written law under which the offence was committed.
However, on the analysis of the plurality in Achurch, which applies by analogy to s 37(1), a sentencing court will not have sentenced an offender in a manner that was not in accordance with the Sentencing Act or the written law under which the offence was committed, merely because, for example:
(a)the sentencing court has made an error of fact or law or adopted flawed reasoning in arriving at the sentence; or
(b)the sentence imposed was outside the range of sentences that could have been imposed on a reasonable exercise of discretion.
In the present case, the appellant alleges:
(a)in ground 1, that Stevenson DCJ erred in law by sentencing the appellant as a State offender rather than a Federal offender, and by failing to recall the sentence and impose a Federal sentence of imprisonment;
(b)in ground 2, that his Honour erred in law by treating the appellant's prior conviction for a drug offence as an aggravating factor; and
(c)in ground 3, that his Honour erred in law by regarding the Sentencing Act as State legislation applying of its own force to his offending instead of regarding the Sentencing Act as an applied Commonwealth provision.
As to ground 1, s 7 and s 12(1) of the Commonwealth Places Act, read with s 79 of the Judiciary Act 1903 (Cth), applied the Sentencing Act to the sentencing of the appellant for the offences, contrary to s 6(1)(a) of the Misuse of Drugs Act, which he committed at Jandakot airport. The appellant was to be sentenced in accordance with the Sentencing Act as an applied Commonwealth provision. The provisions with respect to sentencing in the Crimes Act 1914 (Cth) were irrelevant in his sentencing. In those circumstances, Stevenson DCJ did not err by sentencing the appellant in accordance with the Sentencing Act. Section 37 of the Sentencing Act does not apply to the matters raised in ground 1.
As to ground 2, it is not reasonably arguable that his Honour treated the appellant's prior conviction for a drug offence as an aggravating factor in sentencing him for the offences in question. In any event, an error of that kind would have been an error of law in arriving at the sentences imposed on the appellant. The alleged error could have been raised in an appeal against sentence under the Criminal Appeals Act. However, on the authority of Achurch, the alleged error would not be of a kind that is amenable to correction on an application under s 37 of the Sentencing Act.
As to ground 3, as we have mentioned in considering ground 1, his Honour did not err by sentencing the appellant in accordance with the Sentencing Act. If (which is not apparent) his Honour regarded the Sentencing Act as applying of its own force to the appellant's offending as State legislation instead of regarding the Sentencing Act as an applied Commonwealth provision, any such misunderstanding would be immaterial. Section 37 of the Sentencing Act does not apply to the matters raised in ground 3.
It follows, in our opinion, that Stevenson DCJ was correct to dismiss the appellant's application for the 'correction' of his sentence.

Does an appeal lie from the decision of a sentencing court on an application under s 37 of the Sentencing Act?

As we have mentioned, it is unnecessary to decide whether an appeal lies from the decision of a sentencing court on an application under s 37 of the Sentencing Act. We merely note the reasoning in Trajkoski v Director of Public Prosecutions (WA)[19] and Lawson v The State of Western Australia [No 3].[20] The State's application should be dismissed.

[19] Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105 [63] (Buss JA; Owen JA agreeing).

[20] Lawson v The State of Western Australia [No 3] [2018] WASCA 129 [65] ‑ [85] (Buss P, Mazza & Beech JJA).

MITCHELL JA:

Introduction

On 9 December 2011, the appellant was convicted after trial of two counts of possession of prohibited drugs with intent to sell or supply them to another. The convictions arose from the interception and search of a light aircraft, piloted by the appellant, shortly after it landed at Jandakot Airport. Police located approximately 9kg of ecstasy and 22kg of methamphetamine in a black bag found in the rear cargo area of the aircraft.
Jandakot Airport is a Commonwealth place for the purposes of the Commonwealth Places (Applications of Laws) Act 1970 (Cth) (Commonwealth Places Act).[21] As such, the offences of which the appellant was convicted were offences against s 6(1) of the Misuse of Drugs Act 1981 (WA), applied as surrogate federal law by the Commonwealth Places Act.[22]
[21] Santos v Director of Public Prosecutions (WA) [2016] WASCA 230 [19].
[22] Santos v Director of Public Prosecutions (WA) [2016] WASCA 230 [69].
On 2 February 2012, the appellant was sentenced to 13 years' imprisonment on the count relating to the ecstasy and 15 years' imprisonment on the count relating to the methamphetamine. The sentences were ordered to be served concurrently, so that the total effective sentence was 15 years' imprisonment. The appellant was made eligible for parole.
Since that time the appellant has instituted a large number of proceedings in relation to his conviction and sentences. Most relevantly for present purposes, the appellant appealed against his sentences, but discontinued that appeal on 28 February 2012. In 2016, a purported second appeal against the sentences was dismissed, on the ground that the appellant was not entitled to commence multiple appeals from the same decision. In the same decision, this court refused the appellant's application to withdraw his notice of discontinuance in the first sentence appeal. In rejecting the application, the court expressed the view that none of the appellant's grounds of appeal against sentences had any merit.[23]
[23] Santos v The State of Western Australia [2016] WASCA 107.
On 26 July 2017, the appellant applied to the District Court for a correction of his sentences, purportedly under s 37(1) of the Sentencing Act 1995 (WA). On 12 December 2017, that application was heard and refused by the original sentencing judge.[24]
[24] The State of Western Australia v Santos (No 2) [2017] WADC 158.
On 3 April 2018, the appellant filed an appeal notice in this court, against the decision of 12 December 2017 to dismiss his application for correction of sentence. The appellant also applied for leave to appeal and an extension of time in which to appeal. On 13 April 2018, the respondent applied for an order that the purported appeal be struck out as incompetent.
I agree with Buss P and Mazza JA that, even on the assumption that the appeal is competent, it is without merit. I agree with their Honours' reasons for concluding that the sentencing judge was correct to dismiss the appellant's application for correction of his sentences. I agree with the orders which they propose, save for the order dismissing the respondent's application.
I would dismiss the appeal for the additional reason that the appeal is incompetent.

Competence of appeal

Jurisdiction is conferred on this court, within the limits of its jurisdiction (but disregarding any limitation that exists by reason of a place being a Commonwealth place), by s 7(1) of the Commonwealth Places Act. It may be accepted, by analogy with the position under s 39 of the Judiciary Act 1903 (Cth), that this investment of federal jurisdiction includes appellate jurisdiction within the provisions made for it by this State's judicial system.[25]
[25] Macleod v Australian Securities and Investments Commission [2002] HCA 37; (2002) 211 CLR 287 [9].
Appeals are creatures of statute.[26] It remains necessary to find a statutory provision which provides for the appellant to appeal to this court against the sentencing judge's decision to refuse the appellant's application for a correction of his sentences. Any such provision must be found in pt 3 of the Criminal Appeals Act 2004 (WA) (as applied by the Commonwealth Places Act), which exhaustively states the rights of appeal in respect of decisions in criminal proceedings on indictment.[27]
[26] Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 [8]; CJD v VAJ (1998) 197 CLR 172 [95] - [96].
[27] Harvey v The Queen [2017] WASCA 43 [8] - [10].
Provision for the correction of sentences by a sentencing court is made by s 37 of the Sentencing Act. The terms and effect of that section are discussed in the reasons of Buss P and Mazza JA.
Section 37 of the Sentencing Act was based on the former s 166B of the Justices Act 1902 (WA), which applied where justices imposed a punishment that was contrary to, or failed to impose a punishment in conformity with, the Act under which the complaint was made. The purpose of s 37, like that of the former s 166B, is to provide a less cumbersome and costly means than an appeal of correcting sentences which had been imposed contrary to law.[28] As s 37(4) expressly provides, the section does not affect any right of appeal against sentence.
[28] See the second reading speeches to the Justices Act Amendment Bill 1968 (WA), which introduced s 166B, at Hansard; 5 September 1968 page 887 (Legislative Council) and 1 October 1968 page 1350 (Legislative Assembly).
The appellant relies on s 23(1) of the Criminal Appeals Act (as applied by Commonwealth law), which provides:
An offender convicted of an offence on indictment may appeal to the Court of Appeal against any or all of the following decisions:
(a)the conviction;
(b)the sentence imposed on the offender or any order made as a result of the conviction;
(c)a refusal to make an order that might be made as a result of the conviction.
Section 23(2) makes equivalent provision for an offender convicted by a court of summary jurisdiction and sentenced by a superior court.
Section 23(1)(c) of the Criminal Appeals Act mirrors s 24(1)(c) of that Act, which confers a cognate right of appeal on a prosecutor. Section 23(1)(b) reflects the structure of s 24(1)(a) and (b) of that Act, which gives a prosecutor the right to appeal against an 'order made as a result of the conviction'. The language used in these provisions is not found in the former s 688 of the Criminal Code, which s 23 and s 24 of the Criminal Appeals Act replaced.
Section 23 and s 24 are to be read with s 31 of the Criminal Appeals Act. Section 31(1) relevantly applies in the case of an appeal commenced by an offender under s 23, or by a prosecutor under s 24, against:
(a)the sentence imposed or any order made as a result of [a relevant conviction];
(b)a refusal by a superior court to make an order that might be made as a result of such a conviction.
Sections 31(3) and (4) of the Criminal Appeals Act provide:
(3)Unless under subsection (4) the Court of Appeal allows the appeal, it must dismiss the appeal.
(4)The Court of Appeal may allow the appeal if, in its opinion:
(a)in the case of an appeal referred to in subsection (1)(a), a different sentence should have been imposed; or
(b)in the case of an appeal referred to in subsection (1)(b), an order should have been made.
Under s 31(6) of the Criminal Appeals Act, if the court allows an appeal against a refusal to make an order that might be made as a result of such a conviction, the court:
(a)may make any order that should have been made; or
(b)may send the charge back to the court that refused to make the order to be dealt with further.
The appellant has already exhausted his single right to appeal against the sentences imposed.[29] However, the appellant contends that he has a right to appeal, which he has not previously exercised, under s 23(1)(c) of the Criminal Appeals Act. This is on the basis that the sentencing judge's refusal to recall the order imposing the sentences under s 37(1) of the Sentencing Act is a 'refusal to make an order that might be made as a result of' his convictions.
[29] Santos v The State of Western Australia [2016] WASCA 107 [10]; Ponnambalam v The State of Western Australia [2015] WASCA 185 [30] - [31].
I do not accept that submission. The refusal by the sentencing judge to exercise the power conferred by s 37(1) of the Sentencing Act was not a refusal to make an order that may be made as a result of the convictions, within the meaning of s 23(1)(c) of the Criminal Appeals Act, for the following reasons.
At various points, the Criminal Appeals Act distinguishes between an appeal against a sentence and an appeal against an order made, or a refusal to make an order that might be made, as a result of a conviction. The references to an order made, or which might be made, as a result of a conviction are clearly to an order which does not form part of the sentence.
Such an order would include a reparation order made under pt 16 of the Sentencing Act, which is not part of the sentence imposed on an offender.[30] It may be noted that s 110(6) of the Sentencing Act also provides for an offender to appeal against a reparation order 'as if it were part of the sentence imposed on him or her'. Further, s 114A of the Sentencing Act provides for a victim who applies to a sentencing court for a reparation order to appeal against the reparation order or refusal to make the reparation order. Section 114A(2) provides for relevant provisions of the Criminal Appeals Act to apply 'as if a reparation order were an order that might be made as a result of a conviction'. However, s 114A(3) indicates that the section does not affect the prosecutor's right of appeal under the Criminal Appeals Act, and so contemplates that a prosecutor may appeal against the making of, or a refusal to make, a reparation order under s 24(1) of the Criminal Appeals Act. That could only be on the basis that a reparation order is an order made, or that might be made, as a result of a conviction within the meaning of s 24(1) of the Criminal Appeals Act.
[30] Section 110(1) of the Sentencing Act.
It has recently been held that a motor driver's licence disqualification imposed under s 59 or s 60 of the Road Traffic Act 1974 (WA) is an 'order made as a result of the conviction' for the purposes of s 23(1)(b) of the Criminal Appeals Act.[31]
[31] Lawson v The State of Western Australia (No 3) [2018] WASCA 129 [73].

The making of, or refusal to make, a pre-sentence order under pt 3A of the Sentencing Act, which does not form part of the sentence,[32] might also be the subject of an appeal under s 23 or s 24 of the Criminal Appeals Act on the basis that it is an order made, or which might be made, as a result of a conviction.
[32] See The State of Western Australia v Hatch [2008] WASCA 162 [6]; The State of Western Australia v Jenkin [2011] WASCA 171 [6]; The State of Western Australia v Polmear [2013] WASCA 291 [24].
In Penny v The State of Western Australia,[33] Buss JA, with whom Roberts-Smith JA agreed, found it unnecessary to decide whether a refusal to make a parole eligibility order under s 89(4) of the Sentencing Act was part of the sentence imposed on the offender, or was a refusal of an order which might be made as a result of the conviction of the offender. However, his Honour did not doubt that, if a parole order was not part of the sentence, it was an order that might be made as a result of the conviction.
[33] Penny v The State of Western Australia [2006] WASCA 173; (2006) 33 WAR 48 [61] - [64]. McLure JA considered a decision about parole to be part of the sentence at [7].
Section 39(8) of the Sentencing Act provides that a court sentencing an offender may also make an order under pt 17 of the Sentencing Act, but any such order is not to be taken as being part of the sentence. Part 17 of the Sentencing Act refers to a number of orders which are taken to be orders made under that Part of the Act. Some - an offender reporting order[34] and a prohibited behaviour order[35] - are orders which the empowering legislation only allows after a person is found guilty of an offence. In the case of other specified orders - a restraining order[36] or control order[37] - the empowering legislation does not limit the circumstances in which an order may be made by reference to a conviction or finding of guilt. Under s 123(4) of the Sentencing Act, an offender may appeal against an order made under pt 17 'as if it were part of the sentence imposed on him or her'.
[34] Made under the Community Protection (Offender Reporting) Act 2004 (WA).
[35] Made under the Prohibited Behaviour Orders Act 2010 (WA).
[36] Made under s 63 of the Restraining Orders Act 1997 (WA).
[37] Made under the Criminal Organisations Control Act 2012 (WA).
In Trajkoski v Director of Public Prosecutions,[38] Buss JA, with whom Owen JA agreed, held that a drug trafficker declaration made under s 32A of the Misuse of Drugs Act was not an 'order made as a result of the conviction' for the purposes of s 23(1) of the Criminal Appeals Act.
[38] Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105 [55] ‑ [63].
In this statutory context, in my view the reference to an order made, or which might be made, as a result of a conviction is to an order, not forming part of a sentence, which is a consequence or outcome of the conviction. Such an order may be provided for or referred to in the Sentencing Act or be ancillary or incidental to the sentence imposed on an offender.[39]
[39] Trajkoski [63]; Lawson [71], [73].
The outcome of the exercise of the power conferred by s 37(1) of the Sentencing Act is not an order of the kind referred to in the previous paragraph. That outcome is both a recall of the order imposing a sentence and the imposition of the sentence. The recall can only occur in conjunction with the imposition of a sentence which accords with the Sentencing Act or the written law under which the offence is committed. The outcome of the exercise of the power conferred by s 37(1) is therefore a sentence, which may be the subject of an appeal under different limbs of s 23 or s 24 of the Criminal Appeals Act. The outcome of the exercise of the power under s 37(1) is a sentence, rather than an order made as a result of a conviction.
It follows that the refusal to exercise the power conferred by s 37(1) of the Sentencing Act is not a refusal to make an order that might be made as a result of the conviction.
It may also be that the words 'as a result of the conviction' in this context require that a conviction must be a direct consequence or outcome of the conviction. That is, a conviction must be a necessary condition for the making of such an order, and the order must be a possible outcome at the time that the person is convicted. Such a construction would be consistent with Trajkoski, where a conviction was a necessary condition for the making of an order under s 32A of the Misuse of Drugs Act but a further step was required before an order could be made (namely an application by the Director of Public Prosecutions or a police prosecutor for a declaration under that provision).
If the construction referred to in the previous paragraph were to be adopted, the exercise of the power under s 37(1) could not be an order made as a result of the conviction. The power conferred under s 37(1) of the Sentencing Act is not exercisable at the point when a person is convicted of an offence. A further event is required before the power arises - namely the sentencing of the offender in a manner that does not accord with the Sentencing Act or the written law under which the offence is committed. It is the imposition of the sentence that does not accord with the Act or the written law under which the offence is committed, rather than a conviction, which engages the power in s 37(1) of the Sentencing Act. The making of an order under s 37(1) is not a direct consequence or outcome of the conviction.
It is unnecessary to finally resolve the question of whether s 23(1) of the Criminal Appeals Act should be construed in the manner suggested at [71] above. I am content to rest my conclusion that s 23(1)(c) does not confer a right of appeal against a refusal to make an order under s 37(1) of the Sentencing Act on the basis explained at [68] - [70] above.
This is not a surprising result. The purpose of s 37(1) is to provide an alternative, less cumbersome and costly, means to an appeal for correcting a sentence imposed contrary to law. It is not intended to enable an indefatigable appellant to circumvent the provision in s 23 and s 24 of the Criminal Appeals Act for a single appeal against sentence. The appellant's construction of the provision would result in such an outcome, given that there is no prohibition of an application under s 37(1) being made more than once, and an application under s 37(1) can be made at any time.[40] That outcome is what this appellant seeks to achieve, after unsuccessfully exercising his right to appeal against sentences twice and unsuccessfully seeking to withdraw his notice of discontinuance of the first appeal. The appellant's construction of s 23(1)(c) of the Criminal Appeals Act is inconsistent with the general structure of the legislation, which contemplates a single appeal against a sentence.
[40] See reg 5(1) of the Sentencing Regulations 1996 (WA).
The construction which I prefer does not produce unfairness or injustice to a person who may be sentenced other than in accordance with the Sentencing Act or the law under which the offence is committed. Such an offender who applies for, and is refused, a correction of sentence under s 37(1) of the Sentencing Act may still appeal against the original sentence under s 23(1)(b) of the Criminal Appeals Act. Such an offender who has previously instituted an appeal against sentence has already taken and exhausted the opportunity to have the lawfulness of his or her sentence reviewed by this court.

Conclusion

For the above reasons, the sentencing judge's refusal to exercise power under s 37(1) of the Sentencing Act is not a 'refusal to make an order that might be made as a result of the conviction' within the meaning of s 23(1)(c) of the Criminal Appeals Act. Neither s 23(1)(c) nor any other provision of the Criminal Appeals Act provides for the appellant to appeal against the sentencing judge's refusal to exercise that power. Therefore, the appeal should be dismissed as incompetent.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE MITCHELL
25 SEPTEMBER 2018